Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                                       Case No.  GIA/1313/2014

ADMINISTRATIVE APPEALS CHAMBER

 

1.         This is an appeal by the Cabinet Office (“the CO”), brought with my permission, against a decision of a First-tier Tribunal made on 27 November 2013, BAILII: [2013] UKFTT EA_2013_0119 (GRC) For the reason set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted First-tier Tribunal.

 

Introduction

2.         I held an oral hearing of the appeal at which the CO was represented by Mr James Eadie QC and Mr Rory Dunlop of counsel, and the Information Commissioner (“the Commissioner”) was represented by Mr Robin Hopkins of counsel.  

 

3.         On 21 August 2012 a journalist working for the BBC, made a request to the CO for the following information:

 

“How many times has the Reducing Regulation Committee met since it was established?”

 

The first meeting of that Committee (the RRC) was on 1 July 2010, and the request was therefore for the number of times the RRC had met over an approximately two year period.

 

4.         The FTT summarised the role of the RRC as follows:

 

            “In May 2010 the current coalition government published a document entitled “the Coalition: our programme for government”. It included detail of a programme to cut unnecessary red tape in the rules and regulations affecting members of the public. In the same month the government established a sub-committee of the Cabinet, the Reducing Regulation Committee, to maintain oversight of its objective of improving the regulatory framework by scrutinising, challenging and approving all new regulatory proposals. The RRC is chaired by the Secretary of State for Business Innovation and Skills and its membership includes a number of senior ministers.

 

            The RRC operates at the top end of a process designed to create a culture of lighter         touch regulation replacing the traditional “command and control” approach. Its work        includes:

 

            a.         Supervising the government’s “one-in-two-out” rule for domestic regulation (under which government departments may not propose new primary or secondary legislation without identifying for repeal existing regulations having an equivalent cost for business or civil society organisations).

 

            b.         Receiving proposals for regulatory reform from government departments in response to input from the public provided through the “Red Tape Challenge”, a web-based crowd-sourcing programme.

 

            c.         Considering opinions proffered by the Regulatory Policy Committee (“RPC”). This is an external body manned by independent individuals with expertise in business, employee and consumer issues. It provides independent scrutiny of all proposed regulations and prepares an opinion for the RRC on the impact assessment provided by the department sponsoring each such proposal.”

 

5.         The CO responded to the request on 11 September 2012, confirming that it held the information sought, but advising that the information fell within the scope of s.35(1)(a) and/or (b) of the Freedom of Information Act 2000 (FOIA) and explaining that it considered that the public interest in maintaining those exemptions outweighed the public interest in disclosing the disputed information. Following the internal review requested by the applicant the CO maintained its position.

 

6.         However, following a complaint by the applicant to the Commissioner, the Commissioner issued a Decision Notice dated 13 May 2013 requiring the CO to disclose the requested information to her. The Commissioner accepted that the exemptions in s.35(1)(a) and (b) were engaged, but concluded that the public interest in maintaining those exemptions did not outweigh the public interest in disclosing the information, because he considered that “the disclosure of the withheld information would not have the detrimental effect envisaged by the [CO].”

 

7.         The CO appealed against the Commissioner’s decision.

 

8.         In support of the appeal the CO provided a witness statement from Dr Geoffrey Baldwin, a senior civil servant responsible for the business of the Economic Affairs Committee of the Cabinet, including the RRC. He stated that he had been working in the CO on issues relating to economic and domestic policy since July 2011. He described the prejudice which he considered would arise if the information requested were to be disclosed. The FTT summarised Dr Baldwin’s evidence in relation to prejudice as follows:

 

            “17.      ………………..He suggested that, against a background of transparency and engagement with the public, the number of times the RRC had met would not reveal anything significant and might well be misleading about the Government’s priorities on reducing regulation and/or ministerial engagement with the process. Dr Baldwin explained that Ministers and their advisers engaged with policy issues in many different ways, including correspondence and informal discussions, so that the number of formal meetings provided a potentially misleading impression of their commitment to reducing regulation.

 

18.       Dr Baldwin feared that disclosure of the requested information would cause Ministers to focus on procedural issues, rather than the policy outcome. His context was the twin constitutional principles of, first ministerial accountability to Parliament for decision making and, secondly, the requirement for members of the government to support official policy, once adopted, even if the individual had argued against it during its development. The consequence, he said, was that Ministers needed to have confidence in the method and process adopted for policy development and in the secrecy of debate on the topic. Maintaining the confidence necessitated keeping secret both the detailed discussions and the timing and frequency of those discussions.

 

            19.       A further concern of Dr Baldwin was that, although the requested information might appear anodyne, its disclosure would cause the public to base its interpretation of ministers’ commitment to reducing regulation on the number of RRC meetings and to ignore the other elements of the decision-making process. This misleading impression would run counter to both the spirit and practice of democratic accountability underpinning government in the UK. Disclosure would also undermine ministerial accountability. If a Minister is to be accountable for a decision then he or she needs to have full control over the process for reaching the decisions. It would be counter-productive if informal rules were to be developed as to the number and frequency of meetings as this would undermine flexibility in determining the best way to reach a decision.”

 

9.         The FTT held an oral hearing of the appeal, at which the CO was represented by junior counsel (not Mr Dunlop) and the Commissioner was represented by Mr Hopkins.

 

10.       At the outset of that hearing the FTT asked to be told the what the number of RRC meetings in fact was, which was done in closed session. I did not consider that I needed to know that information in order properly to decide this appeal to the Upper Tribunal, and I therefore do not know what the number of meetings was.

 

11.       Dr Baldwin attended the FTT hearing and provided (in the FTT’s words) “clear and helpful answers to a number of questions put to him” by the FTT. However, he was not cross-examined by Mr Hopkins on behalf of the Commissioner.

 

12.       The FTT dismissed the appeal. In para. 27 of its decision it summarised the effect of its findings in relation to the CO’s case as to the prejudice which would result from disclosure as follows:

 

“27.      It follows from what we have said that we regard the Cabinet office’s case on the harm likely to result from disclosure to be weak and incapable of carrying significant weight in the public interest balancing test.”

 

13.       As regards the public interest in disclosure, the FTT reasoned as follows:

 

            “28.      The Cabinet Office acknowledged that there was a public interest in improving public understanding of the development of government policy and the way Cabinet government operates more generally. However, it argued that disclosure of the withheld information would not contribute materially to public understanding, particularly in the light of the information that had already been made publicly available. The argument depended, to some extent, on the fear that the information would not be understood, which we have already dealt with. If it were properly understood, possibly assisted by being accompanied by an appropriate explanation of its context, it would add to the public information on the decision-making process on this issue. Without the withheld information the process described in “Reducing Regulation Made Simple” might be described as rather formulaic and theoretical. But when information is provided about the number of meetings, the process may be seen by the public as having practical application. The information may not be as informative in that respect as, for example, the number of opinions submitted to the RRC by the RPC (which has been put into the public domain) but it does have some value, in our view.”

 

14.       The FTT’s very broad summary of its conclusion as regards the public interest balancing exercise was as follows:

 

            “29.      In light of our analysis of the factors for and against disclosure, we have concluded that the public interest in maintaining the exemption is so weak that it does not equal, let alone outweigh, the, admittedly light, public interest in disclosure.”

 

Ground of appeal 1: does the s.35(1)(b) exemption carry inherent weight?

(a)       Introduction

15.       The CO’s first ground of appeal is that the FTT went wrong in law in stating as follows at the outset of its discussion on the public interest balancing exercise:

 

            “21.                              General Approach The Information Commissioner placed weight on the fact that the exemption relied upon is a class-based one. It arises if, as is conceded on this appeal, the information “relates to” policy development or Ministerial communications. Its engagement does not depend on any particular prejudice likely to arise from the disclosure sought. It was argued that the starting point for the public interest balancing test under FOIA section 2(2)(b) was therefore that both sides of the scales are to be treated as empty at the start – there is no question of the mere fact of engagement contributing any inherent weight in favour of maintaining the exemption. If, therefore, a public authority is unable to identify any harmful consequence resulting from disclosure then disclosure should be ordered because, even if there were no public interest in disclosure, the empty pan on the side of the scale in favour of maintaining the exemption would not “outweigh” the equally empty scale on the other side. The Information Commissioner relied in this respect on the judgment of Stanley Burnton J in OGC v Information Commissioner [2008] EWHC 774 (Admin) approving the decision of a differently constituted panel of this Tribunal in The Department for Education and Skills v Information Commissioner and the Evening Standard, Appeal No EA/2006/0006, BAILII: [2007] UKIT EA_2006_0006. The point was not challenged by the Cabinet Office and we believe that it represents the correct approach to adopt.”

 

16.       Mr Eadie contends that, whilst it is correct that the exemption in section 35(1)(a) does not carry any “inherent weight”, that is not so in relation to the exemption in section 35(1)(b), which does carry “inherent weight”. The consequence, he contends, is that the FTT necessarily went wrong in law in concluding that, notwithstanding that section 35(1)(b) was engaged, the harm likely to result from disclosure was “incapable of carrying significant weight” in the public interest balancing exercise.

 

17.       Mr Eadie recognises that the FTT was correct in recording that counsel then acting for the CO did not before the FTT challenge the Commissioner’s submission to the contrary, but submits that as this is a point of law the CO is not prevented from taking it at this stage. Mr Hopkins did not contend that I should refuse to consider the point. I therefore propose to do so.

 

(b) Relevant provisions of FOIA

18.       Section 35 of FOIA provides as follows (so far as directly material).

 

            “Formulation of government policy etc

35(1)    Information held by a government department ...... is exempt information if it relates to –

                        (a)        the formulation or development of government policy,

                        (b)        Ministerial communications,

(c)        the provision of advice by any of the Law Officers or any request for the provision of such advice, or

                        (d)        the operation of any Ministerial private office.

 

            (3)        The duty to confirm or deny does not arise in relation to information which (or if it were held by the public authority would be) exempt information by virtue of subsection (1).

 

            (5)        In this section –

                        “Ministerial communications” means any communications –

                                    (a)        between Ministers of the Crown, or

                                    (b)        ………………………………

                                    (c)        ……………………………..

and includes, in particular, proceedings of the Cabinet or of any committee of the Cabinet ............”

           

19.       In addition to the ‘class-based’ exemptions in s.35, there are potentially relevant “prejudice-based” exemptions in s.36, which provides as follows (so far as directly material):

 

            “(1)      This section applies to –

 

                        (a)        information which is held by a government department …….. and is not exempt information by virtue of section 35, and

                        (b)        information which is held by any other public authority.       

 

(2)        Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act –

                        (a) would, or would be likely to, prejudice –

                                    (i) the maintenance of the convention of collective responsibility of Ministers of the Crown, or

                                    (ii)        …………………………., or

                                    (iii)       …………………………

 

                        (b) would, or would be likely to, inhibit –

                                    (i)         the free and frank provision of advice, or

                                    (ii)        the free and frank exchange of views for the purposes of                                                    deliberation, or

                        (c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.”

 

(c) Case law

20.       Before coming in more detail to the parties’ submissions, I think that it will be helpful to refer in chronological order to the most important cases referred to in them. The position very broadly is that there is authority suggesting that the exemptions in s.35(1)(c) and s.42 (legal professional privilege) of FOIA do carry significant inherent weight, but that the exemption in s.35(1)(a) does not. The authorities in relation to s.35(1)(b) appear inconsistent or unclear.

 

21.       In OGC v Information Commissioner [2008] EWHC 774 (Admin) the Information Tribunal had held that the Commissioner had rightly directed disclosure by the OGC of “gateway reviews” of the Government’s identity card programme which the OGC had undertaken. The Tribunal held that section 35(1)(a) was engaged, but that the public interest in maintaining that exemption did not outweigh that in disclosing the information.   

 

22.       On appeal to the High Court Stanley Burnton J at [20(c)] referred to the relevant ground of appeal by OGC as being that “the Tribunal erred in failing to take as its starting point for the purposes of section 35 that, on a proper construction of the Act, disclosure of information falling within such an exemption is of itself to be regarded as harmful to the public interest”. The central passages of his judgment relevant to that ground are:

 

            “76.      [Counsel for OGC] submitted that if information is within section 35, there is necessarily a public interest in maintaining the exemption, i.e. in non-disclosure. [Counsel for the Commissioner] disagreed: he submitted that the effect of section 35 is to require the public authority in question (in the first place) to consider whether there is a public interest in its not being disclosed, and only if it concludes that there is such does the public interest test required by section 2 come into play.

 

            78.       Having considered the effect of section 2(2)(b), I think that this issue under section 35 is always likely to be arid. Once it has been decided that information is subject to section 35, if the information is not already in the public domain the authority will have to weigh up the public interest in disclosure against the public interest in maintaining the exemption. If it is unable to identify a significant public interest in maintaining the exemption, application of the public interest test in section 2(2)(b) will lead to disclosure. If it is able to identify that public interest, and it is substantial, it will consider the public interest in disclosure and decide whether the former outweighs the latter.

 

            79.       Be that as it may, if it is interpreted literally I do not think that section 35 creates a presumption of a public interest in non-disclosure. It is true that section 2 refers to “the public interest in maintaining the exemption”, which suggests that there is a public interest in retaining the confidentiality of all information within the scope of the exemption. However, section 35 is in very wide terms, and interpreted literally it covers information that cannot possibly be confidential. For example, a report of the Law Commission being considered by the Government with a view to deciding whether to implement its proposals would be or include information relating to “the formulation or development of government policy”, yet there could be no public interest in its non-disclosure. It would therefore be unreasonable to attribute to Parliament an intention to create a presumption of a public interest against disclosure. I therefore agree with the view expressed by the Information Tribunal in DFES v IC (EA/2006/0006, BAILII: [2007] UKIT EA_2006_0006 ) at paras 60 to 63. I reject the ground of appeal at para. 20(c) above.”

 

23.       In Scotland Office v IC (EA/2007/0070, BAILII: [2008] UKIT EA_2007_0070) disclosure was sought of copies of (inter alia) “all the relevant government papers and correspondence between UK Ministers and also between the UK government and both the Scottish Executive and former Scottish Office in connection with” the Scottish Adjacent Waters Boundaries Order 1999. The Scotland Office withheld that information under sections 35(1)(a) and (b).

 

24.       The Commissioner found as follows:

 

            (a)        in so far as the information requested comprised correspondence between civil servants, section 35(1)(a) was engaged and the public interest in maintaining that exemption outweighed the public interest in disclosure.

 

            (b)        in so far as it comprised submissions and advice from civil servants to Ministers, section 35(1)(a) was engaged, but the information should be disclosed because the public interest in maintaining the exemption did not outweigh the public interest in disclosure; and

 

            (c)        in so far as it comprised ministerial correspondence, section 35(1)(b) was engaged, but the information should be disclosed because the public interest in maintaining the exemption did not outweigh the public interest in disclosure.

 

25.       On appeal by the Scotland Office in relation to (b) and (c), the Information Tribunal did not find that any of the information could properly be withheld under section 35(1)(a), but did find that certain of it could be withheld under section 35(1)(b) on the ground that it engaged the convention of collective Cabinet responsibility and that, in all the circumstances of the case, the public interest balancing exercise came down in favour of maintaining the exemption.

 

26.       At para. 81 of its decision the Tribunal noted the submissions on behalf of the Scotland Office:

 

            “The Appellant’s position, however, is that different considerations arise in relation to section 35(1)(b). It says that disclosure of Ministerial communications risks undermining the convention of collective Cabinet responsibility and that this principle is of such great constitutional importance that Ministerial communications should not be disclosed “unless a compelling public interest in disclosure is found to exist.” The disclosure of individual and divergent Ministerial views would mean that the Government would be unable, convincingly, to put forward a united front. Disclosure of communications showing a Minister had been against a decision would place that Minister in a very difficult position when defending a decision in public, or if his department had to implement it. Disagreements between Ministers would be exploited by the media as examples of divisions or rifts within the Government. Ministers would be reluctant to put forward openly and candidly dissenting views rather than expressing their views with an eye to eventual publication. This, in turn, would undermine the quality of decision making.”

 

27.       The Tribunal then continued:

 

            “82.      We note that collective Cabinet responsibility is the long-standing convention that Ministers are collectively accountable for the decisions of the Cabinet, and are bound to promote that position to Parliament and the general public, regardless of their individual views. During the course of meetings of the Cabinet or of Cabinet Committees or through correspondence, Ministers may express divergent views, but once a decision is taken, the convention dictates that they must support it fully. When decisions are announced as Government policy, the fact that a particular Minister may have opposed it in Cabinet, is not disclosed.

 

            83.       The Appellant has referred us to a number of texts explaining the convention and its history, and underlining its constitutional importance in government decision making and more broadly, its significance in our system of parliamentary democracy. We fully accept the importance of the convention, and we also accept that detriment can arise to the public interest from disclosure of information concerning the formulation of Government policy at Cabinet level.

 

            84.       However, the Appellant’s submissions and evidence has, at times, come close to suggesting that the threshold to be met before such information can be disclosed should be so high as to amount, almost, to an absolute exemption. There is nothing in the wording of section 35, or in the case law, to support such an interpretation.

 

85. To the extent that the Appellant is suggesting that because of the importance of the convention, there is some form of presumption against disclosure of such

information implicit in that exemption, or that the public interest in maintaining the

exemption under section 35(1)(b) is inherently weighty, we must disagree. The

notion that there is a public interest against disclosure inherent in section 35(1)(a)

because of the status of any such information, was rejected in both the DFES and

DWP cases. It was also rejected by the High Court in OGC (which we note was not

limited to section 35(1)(a)), and we see no justification for a different finding in

relation to section 35(1)(b). Furthermore, not all information coming within the scope

of section 35(1)(b) will bring the convention of collective Cabinet responsibility into

play. Some communication may be completely anodyne or may deal with process

rather than policy issues. Communications may also be purely for information

purposes, such as when reports are circulated. The very fact that certain

information constitutes Ministerial communication does not, therefore, mean that

there is a public interest in non-disclosure, and indeed we note that the Appellant

has itself taken the view that certain Ministerial communication (for example,

document (3)) is not exempt (see paragraph 22 above)).

 

86. Even where Ministerial communication engages the collective responsibility of

Ministers (where, for example, it reveals actual deliberations and exchanges of

views), that itself does not mean that the public interest against disclosure will

inevitably be weighty. The maintenance of the convention of collective Cabinet

responsibility is a public interest like any other, in the sense that the weight to be

accorded to it must depend on the particular circumstances of the case. This is by

no means to undervalue the importance of the convention or the consequences that

could flow from disclosure, nor to ignore the public interest in maintaining the

confidentiality of communications that may result in a government decision or

policy. We accept that where collective responsibility of Ministers is engaged, there

will nearly always be a public interest in maintaining the exemption. However, the

Tribunal is required, by the wording of section 2(2)(b), to consider the information in

issue in the context of all the circumstances, to accord the different factors the

weight that is appropriate in the circumstances of that particular case, and then to

see where the public interest balance lies.

 

87. Where Ministerial communication does engage the convention of collective

responsibility, it is necessary, in particular, to assess whether and to what extent,

the collective responsibility of Ministers would be undermined by disclosure. Factors

such as the content of the information, whether it deals with issues that are still

“live”, the extent of public interest and debate in those issues, the specific views of

different Ministers it reveals, the extent to which the Ministers are identified, whether

those Ministers are still in office or in politics, as well as the wider political context,

are all matters that are likely to have bearing on the assessment of the public

interest balance.

 

88. Also, as with formulation of government policy under section 35(1)(a), timing is

likely to be of paramount importance. Where the Ministerial communication is in

relation to an issue that was “live” when the request was made, the public interest in

preserving a “safe space” for Ministers to have a full and open debate, and the

public interest in the Government being able to come together successfully to

determine what may, in reality, have been a contentious policy issue, may weigh

the balance in favour of maintaining the exemption. However, that does not detract

from the need to assess each case on its own circumstances.”

 

28.       In DBERR V, O’Brien [2009] EWHC 164 (QB) the claimant, a recorder, sought disclosure of “all documents relating to” the inclusion in the relevant statutory instrument of a particular provision relating to fee-paid judicial office holders. The Department refused to disclose them, in reliance on sections 35(1)(a), 35(1)(b) and 42 . The case is relied upon by the CO in relation to Wyn William’s J’s decision about section 42 (which provides an exemption in respect of documents covered by legal professional privilege).

 

29.       The Commissioner’s decision in the case had been that only one of the identified documents should be disclosed. He found that the remainder were exempt, some under section 35(1)(b), and some under s.42. Mr O’Brien appealed to the Information Tribunal. The Tribunal decided that all the documents should be disclosed, on the basis that the public interest in maintaining those exemptions was outweighed by the public interest in disclosure. The Department appealed to the High Court, contending that the Tribunal had gone wrong in law in relation to sections 35(1)(a), 35(1)(b) and 42. Wyn Williams J held that the Tribunal did not err in law in relation to section 35, but that it did in relation to section 42. In para. 53 he said:

 

            “In my judgment that paragraph [of the Tribunal’s decision] is a clear indicator that the Tribunal failed to attach appropriate weight to the exemption. The in-built public interest in withholding information to which legal professional privilege applies is acknowledged to command significant weight. Accordingly, the proper approach for the Tribunal was to acknowledge and give effect to the significant weight to be afforded to the exemption in any event; ascertain whether there were particular or further factors in the instant case which pointed to non-disclosure and then consider whether the features supporting disclosure (including the underlying public interests which favoured disclosure) were of equal weight at the very least.”

 

30.       It is in my view clear from the Judge’s reasoning as a whole that the primary error which he considered the Tribunal to have made was to consider only what prejudice might arise in the instant case (i.e. in terms of unfairness which might arise from one person having access to another’s legal advice), and to ignore the prejudice which may arise from the undermining of the doctrine of legal professional privilege generally. It is clear that the latter was what was meant by the reference in that passage to the “significant weight to be afforded to the exemption in any event”, and by the statement in para. 51 that “the Tribunal failed to understand or give effect to the fact that it was not necessary to demonstrate any specific prejudice or harm from the specific disclosure of the documents in question.”

 

31.       In HM Treasury v. IC [2009] EWHC 1811; [2010] QB 563 a request was made for disclosure of counsel’s opinion supporting a Minister’s statement of compatibility with the Human Rights Convention of what became the Financial Services and Markets Act 2000. The Treasury refused to confirm or deny that it held the information, relying on the exemption in s.35(1)(c). The Commissioner ordered the Treasury to confirm or deny whether it held the information, and the Information Tribunal dismissed the Treasury’s appeal.

 

32.       There was detailed evidence before the Tribunal as to the existence of and reasons for the “law officers’ convention” that (as stated in the Ministerial Code) “the fact and content of opinions or advice given by the law officers ….. either individually or collectively must not be disclosed outside government without their authority.” The evidence included a statement from the head of the Attorney General’s Office that the convention “has been observed by successive governments to enable them to obtain frank and full legal advice in confidence and without revealing which matters are assessed within government to be most politically or legally sensitive such as to merit an approach to the law officers (and without revealing, by inference where the law officers’ advice is not sought, which issues are thought within government to be less politically or legally sensitive).”

 

33.       Blake J allowed the appeal, holding that the Tribunal had erred in law in five respects (see his summary in para. 54), of which the first two were:

 

            “(i)        By failing to conclude that Parliament intended real weight should continue to be afforded to this aspect of the law officers’ convention.

 

            (ii)        By failing to conclude that the general considerations of good government underlining the history and nature of the convention were capable of affording weight to the interest in maintaining an exemption even in the absence of particular damage.”

 

34.       Having referred to the Stanley Burnton J’s judgment in OGC, and in particular to para. 79, Blake J said:

 

            “38.      Although obiter to the decision in the case, I give substantial weight to the reasoning of an experienced judge on this statute. However, the context of the decision in the [OGC case] and the present is very different. The statutory exemption relating to the formation of government policy appears to have been so wide that any reliance on the words of the statute as an indication as to the weight to be attached in a particular case was likely to have little or no value.

 

            39.       By contrast, the ground of exemption here relied upon is very specific. Parliament has identified as exempt the issue as to whether or not the law officers have given their advice. As the tribunal itself accurately noted ….., this was statutory language intending to reflect the substance of the law officers’ convention itself, a long-standing rule adopted by the executive for the promotion of good government. A consideration adopted by the draftsman as a ground for exemption without having to prove specific prejudice naturally fits into a regime where there is an assumption of a good reason against disclosure. The strength of the assumption and the weight to be attached to it in the light of the strength of competing considerations fall for determination by the public authority in the first instance and the Information Commissioner and the tribunal thereafter.

 

            40.       Closely related to this question, I consider there is substance in the Treasury’s complaint that the tribunal erred in concluding that the convention and the code had now been somehow displaced by FOIA. In my judgment the operation of FOIA with its concomitant public interest in disclosure in the interests of transparency fell to be applied against the structure of the various classes of exemption set out elsewhere in the statute. …..”

 

            …………………………………………………………………………………

 

            43.       ….If Parliament had intended material of this kind to only enter the process of weighing the strength of rival public interests on proof of prejudice, it would have said so. It expressly did not. Moreover, a number of decisions of judicial bodies applying the FOIA have recognised precisely the weight to be attached to general considerations.”

 

35.       In relation to the significance of the DBERR case Blake J said:

 

            “49.      …………….I acknowledge that legal professional privilege is a statutorily discrete topic where a long-standing and very high public interest in public confidentiality is reflected. The observations of Wyn Williams J cannot therefore be transported across to apply to all classes of section 35 claims without more. ……..

 

            51.       In any event, given the confined nature of the law officers’ convention reflected in section 35(1)(c) of FOIA, I consider that the observations of Wyn Williams J. ….. have general supportive resonance in the present. The statute assumes that the case for exemption is a substantial one. All this is subject to the act of weighing the comparative public interests in the case, which is certainly fact-specific, and considering whether either presumptions or general considerations will necessarily determine the outcome.”

 

36.       In APPGER v IC & FCO (EA/2011/0049-0051, BAILII: [2012] UKFTT EA_2011_0049 (GRC)) the Tribunal referred, in relation to s.35(1)(a), to the DFES and OGC cases and, in relation to s.35(1)(c), to the HM Treasury case, and then said:

 

            “145.    [Counsel for the FCO] argues that Blake J’s reasoning applies, by analogy, to s.35(1)(b) and (d). As Blake J said, where the ground of exemption is very specific, and no prejudice is required to be proved, it “naturally fits into a regime where there is an assumption of a good reason against disclosure.” [Counsel] continues that the s.35(1)(b) exemption for Ministerial communications is very specific, unlike the broader s.35(1)(a) exemption. So too is the exemption in respect of the operation of any Ministerial private office. The Tribunal should, she argues, acknowledge the strength of the general public interest in enabling Ministers to communicate confidentially with each other and to operate their private offices on a confidential basis.

 

            146.     We can agree with the latter proposition but should we elevate ss. 35(1)(b) and (d) to having the same inherent weight in favour of maintaining the exemptions as that of s.35(1)(c) which reflects a long standing Convention? We consider Blake J was referring to the combination of specificity and convention as establishing a strong weight in favour of maintaining the Law Officer exemption and both of these factors are not present together for subsections (b) and (d). However, we are prepared to accept that the weight we should attribute to the s.35(1)(b) and (d) exemptions because of their specificity is higher than for s.35(1)(a), but not as weighty as for s.35(1)(c).”

 

37.       In Cabinet Office v IC and Aitchison [2013] UKUT 0526 (AAC) Mr Aitchison, a journalist, sought disclosure from the CO of all documentation dated between 1 April 1988 and 1 August 1988 relating to the takeover of the business of Rowntree Mackintosh by the Nestlé group of companies. It was common ground on the appeal to the Upper Tribunal that the information sought engaged either s.35(1)(a) or (b).

 

38.       Judge Williams referred to the HM Treasury and DBERR cases and said:

 

            “58       While the general guidance in those decisions is plainly helpful here, I regard both those cases as similar special cases where the courts respected and upheld the considerable importance of different forms of legal professional privilege – the right of a lawyer and client to deal with advice about problems without any fear that others may become privy to those discussions. Further, both parties to legal communications are entitled to and are protected by the privilege, the lawyer and the client, and they are protected from the courts as well as others without the assistance of FOIA. It is also, in my view, difficult to imagine anything other than the rarest case where legal professional privilege should be waived in favour of public disclosure without the consent of the two parties to it. As the drafting of FOIA reflects, those are specific concerns with specific justifications. At the same time there are other ways for third parties to challenge any action taken on legal advice that is seen as having adverse consequences, including in the case of actions of government the process of judicial review.

 

59        While I have no hesitation in agreeing with the views expressed in these cases about those exemptions, I do not consider that it follows that the same approach is to be followed in the wider exemptions in issue in this case not least because of both the specific importance of legal privilege and the point about other remedies.  These were matters considered by the First-tier Tribunal in [the APPGER case]. This was the case concerning requests by APPGER for information about rendition involving the United Kingdom authorities. Most of the appeals before the First-tier Tribunal were dismissed. There were plainly security issues involved in that case involving section 23 of FOIA which do not arise here, and that part of the decision need not be referred to further.”

 

39.       He then referred to paras 145 and 146 of the APPGER case, and continued:

 

“61       Mr Cornwell put a parallel argument to that to me in this case, arguing that while the basis of the exemption under section 35(1)(b) was less weighty than that applying under section 35(1)(c) it was of more weight than that under section 35(1)(a). Mr Hopkins reminded me that my task was to ensure that the Tribunal had considered these arguments about weight and taken them into account in balancing interests. None of the exemptions in issue were absolute exemptions so a balance taking into account the specific facts was required in each case.

 

62        I agree with Mr Hopkins and resist the temptation to put into the jurisprudence any sort of sliding scale of relative weights of the factors behind one of the exemptions in FOIA as compared with others, even in the context of those in section 35(1). I agree that specificity is important but, as the tribunal in the APPGER case itself accepted, there were external factors in operation with regard to both section 35(1)(c) and section 42, both of which are exemptions confined to two aspects of the lawyer-client relationship. The exemption in section 35(1)(d) is not in issue here so I say nothing further about it. The exemption in section 35(1)(b) is focussed but covers a variety of widely different situations from those where discussion is about wide government policy decisions and others where a task is given, and given only, to a single minister and where it is at least arguable that there should be no ministerial communications outside the private office of the minister charged with the task. That being so, I do not consider that it can be said that there is “a” weight to be attached to the public interest favouring maintaining the exemption under section 35(1)(b) as a matter of law. Similarly, I see no basis for establishing as a matter of law – which must be as an interpretation of the relevant language in FOIA – that “a” weight applies to the maintenance of the exemption for Cabinet and Ministerial committee minutes or other information.”

 

40.       In Dept of Health v IC (EA/2013/0087, [2014] UKFTT EA_2013_0087 (GRC)) disclosure was sought of the Ministerial diary of the RT Hon Andrew Lansley MP for the period 12 May 2010 to 30 April 2011, during which time he was Secretary of State for Health. On the appeal the matter proceeded on the footing that sectons 35(1)(a), (b) and (d) were all engaged.

 

41.       However, it is worth noting the following comments of the Tribunal in relation to the meaning of the words “relates to” in s.35:

 

“27. The proper application of these exemptions depends upon the nature of the

connection intended by the use of the statutory phrase ‘relates to’. The

Department referred us to the discussion of this phrase in the context of

FOIA s23 by a First-tier Tribunal (of which Mr Randall was a member) in

[the APPGER case] at [62], [64]-[65], [67]-[68].

 

28. The phrase ‘relates to’, read literally, is capable of indicating a very remote

relationship. But in s35, as in s23, the function of the phrase ‘relates to ...’ is

to demarcate the boundary of a FOIA exemption. It is clear, therefore, that it

should not be read with uncritical literalism as extending to the furthest

stretch of its indeterminacy, but instead must be read in a more limited sense

so as to provide an intelligible boundary, suitable to the statutory context.

 

29. In APPGER [2012] at [68] the First-tier Tribunal decided that in s23 the

phrase ‘relates to’ was directed to the contents of the information – what the

information was about; a less direct relationship would not qualify. While s35

differs from s23, we consider that this conclusion is equally applicable to s35.

A merely incidental connection between the information and a matter

specified in a sub-paragraph of s35(1) would not bring the exemption into

play; it is the content of the information that must relate to the matter

specified in the sub-paragraph. It follows, in our view, that the mere fact that

information is held in or collated by a Minister’s private office does not of

itself lead to the conclusion that the information ‘relates to’ the operation of

the Minister’s private office within the meaning of s35(1)(d).”

 

42.       The Tribunal said the following in relation to the nature of the public interests served by the exemptions:

 

“73. The exemptions in s35(1)(a), (b) and (d) are closely related. In relation to particular entries [in the diary] the Department relies upon them singly or in various

combinations. In broad terms, they are directed to ensuring that the work of

Government Ministers and their departments is not unduly harmed or

hampered by release of information under FOIA. A safe space is needed in

which policy can be formulated and developed in robust discussions, where

participants are free to ‘think the unthinkable’ in order to test and develop

ideas, without fear of external interference or distraction, whether as a result

of premature and lurid media headlines or otherwise. ‘Ministerial

communications’ are defined in s35(5) so as to include communications

between Ministers of the Crown and in particular proceedings of the Cabinet

or any Cabinet committee. Ministers need to be able to communicate with

colleagues without having to give disproportionate attention to fashioning

communications to make them suitable for publication, and particular

protection needs to be given where disclosure would undermine Cabinet

collective responsibility because the communication would reveal a view

expressed by a particular Minister on a matter of policy. The definition of

‘Ministerial private office’ refers to any part of a government department

which provides personal administrative support to a Minister of the Crown.

The primary purpose of protecting information relating to the operation of a

Ministerial private office is to ensure that ministerial business is managed

effectively and efficiently. This brief identification of the relevant interests

served by these exemptions is not intended to be an exhaustive treatment,

and we draw attention to the very useful discussion of arguments concerning

safe space, chilling effect, record keeping, collective responsibility, and

protection of officials in paragraphs 194-212 of the Commissioner’s published

guidance titled “Government policy (section 35)” version 1, 18 March 2013. In

our view the public interests served by the exemptions in s35(1)(a), (b) and

(d) in the present case overlap, and it is appropriate for us to consider them

both singly and in combination.

 

74. The Commissioner submits, and the Department does not contest, that the

broadly worded exemption in s35(1)(a) is not an exemption which has an

inherent or presumptive weight independent of the particular circumstances:

Office of Government Commerce v IC [2008] EWHC 774 (Admin), [79]. The

Department submits, and the Commissioner does not contest, that in

contrast, the greater specificity of the exemptions in s35(1)(b) and (d) can be

taken as indicating some degree of inherent weight: APPGER v IC and FCO

EA/2011/0049-0051, BAILII: [2012] UKFTT EA_2011_0049 (GRC), 3 May 2012, [146]. We bear these respective remarks

in mind, but do not find them to be of much practical assistance in the

present case, one way or the other. The general importance of a safe space

for policy formulation and development is not in doubt. The interests which

the s35(1)(b) and (d) exemptions are designed to protect are reasonably

clear. Given the extent of the evidence adduced, theoretical points about

whether the exemptions either have or lack inherent or presumptive weight

do not seem to us to materially affect the decisions which we are required to

make in the circumstances of the present case.”

 

(d)       The parties’ submissions on Ground 1

43.       Mr Eadie submits that the FTT was wrong to state, in para. 21 of its decision, that both sides of the scales are to be treated as empty from the start because the exemption in s.35(1)(b) does not carry any inherent weight. The Tribunal was therefore wrong to state that “if, therefore, a public authority is unable to identify any harmful consequence resulting from disclosure then disclosure should be ordered because, even if there were no public interest in disclosure, the empty pan on the side of the scale in favour of maintaining the exemption would not “outweigh” the equally empty scale on the other side.”

 

44.       Mr Eadie’s submission is that the engagement of s.35(1)(b) always carries some weight, albeit that that weight may be far greater in some cases than others. He submits that the reasoning of Blake J in (in particular) para. 39 of HM Treasury is applicable to s.35(1)(b), which applies only to “Ministerial communications” and therefore, like s.35(1)(c), is much more narrowly confined than s.35(1)(a). He relies on what was said in para. 146 of the  APPGER  case, and in para. 74 of the Department of Health case. He further contends that in para. 62 of Aitchison  Upper Tribunal Judge Williams, while not accepting that there was any particular amount of weight to be attached to the s.35(1)(b) exemption, did accept that it carried some inherent weight. He submits that para. 85 of the Scotland Office case must be regarded as wrong, and points out that it was decided before Blake J’s judgment in HM Treasury.

 

45.       Mr Hopkins submits that no inherent weight necessarily attaches to the exemption in s.35(1)(b). He submits that the correct approach is as follows. If disclosure is likely to intrude upon the safe space for Ministerial deliberations and/or contravene constitutional conventions, then there will in general terms be significant public interest in maintaining the exemption in sections 35(1)(a) and/or (b) of FOIA. That, however, must be assessed by reference to the particular circumstances and information at issue in each case.

 

46.       He puts forward the following reasons:

 

            (1)       Nothing in the language of FOIA points towards a conclusion as to inherent weight. The CO’s argument that the specific references in s.35 (to “Ministerial Communications” and to “in particular proceedings of the Cabinet or any committee of the Cabinet”) indicate an intention that s.35(1)(b) should be accorded inherent weight is wrong. It is exactly the sort of argument which was rejected by Stanley Burnton J in OGC. The fact that the exemption is drafted so as to encompass certain descriptions of information says nothing whatsoever about inherent weight for section 2(2)(b) purposes. It simply indicates that such information is eligible for a section 2(2)(b) assessment.

 

            (2)       As later cases have pointed out, although s.35(1)(a) was the exemption relied upon in OGC, Stanley Burnton J did not draw a distinction between that subsection and the remaining subsections of section 35(1).

 

            (3)       Given the statutory language, the starting point or default position for section 35(1) should be that articulated by Stanley Burnton J, for the reasons which he gave. Both “relates to” and “communications” are very broad terms, capable of extending to a very wide range of information. “Ministerial” is somewhat narrower, but even then section 35 ensures that subsection 1(b) has a wide ambit. Because of the width of sections 35(1)(a) and (b) information which is very far removed from the concerns at the heart of the exemptions (such as Ministerial safe space and constitutional conventions) is nonetheless capable of engaging the exemption. That was the case here: on its face, the disputed figure is very far removed from the concerns at the heart of the exemptions. It was up to the Cabinet Office to persuade the Tribunal that, notwithstanding that apparent distance, those concerns applied to this information.

 

            (4)       There is no basis to depart from the default position (no inherent weight) for section 35(1)(b). There is a basis for doing so for s.35(1)(c), namely the confined nature of the Law Officers’ Convention reflected in section 35(1)(c). In contrast, section 35(1)(b) is not of such a confined nature – it is drafted very broadly. Section 35(1)(b) is in this respect much closer to section 35(1)(a) than it is to section 35(1)(c).

 

            (5)       There is no analogy between section 35(1)(b) and the other exemption which carries inherent weight, namely section 42(1). The doctrine of legal professional privilege is binary (i.e information either attracts privilege or it does not) and very specific (it is subject to specific tests established by jurisprudence). Further, section 42 is not a “relates to” exemption.

 

            (6)       On a proper reading of para. 62 of Aitchison Judge Williams was saying that no inherent weight could necessarily be assigned to the s.35(1)(b) exemption.

 

(e)       Analysis and conclusions on Ground 1

47.       In my judgment the submission of Mr Hopkins is correct, for essentially the reasons which he advances. However, I propose to state the position in my own words.

 

48.       I am bound to say that my initial reaction was to agree with Stanley Burnton J in para. 78 of OGC that the issue whether an exemption in section 35 carries inherent weight is “always likely to be arid”. The public interest balancing exercise requires the weight of the public interest in maintaining the exemption, in all the circumstances of the particular case, to be weighed in the balance. Why then does it matter whether or not that side of the scales starts empty?

 

49.       However, the answer to that question may matter in the situation where the Commissioner or tribunal finds that there is minimal public interest in favour of disclosure. If the Commissioner or tribunal must attribute significant weight to the s.35(1)(b) exemption, then the public interest balance will necessarily come down in favour of maintaining the exemption.

 

50.       Usually, if not always, the contention that an exemption carries “inherent weight” involves the contention that, regardless of whether there is any prejudice to the public interest as regards the particular policy or matter to which the information relates, disclosure must necessarily result in some prejudice by reason of a general impact on the public interest factor which the exemption is designed to protect (for example the convention of collective cabinet responsibility) and therefore some general prejudice to the future conduct of government or public affairs.

 

51.       In my judgment the statement in para. 146 of the APPGER case that the weight to be attributed to the s.35(1)(b) and (d) exemptions,  because of their specificity, is greater than for s.35(1)(a) but less than for s.35(1)(c), must be wrong. There is no necessary link between the degree of specificity of each exemption and the amount of weight which should be attributed to the public policy factors underlying it. Specificity is potentially relevant only in that, the more specific or narrow the exemption, the more likely it is that the facts of any particular case will engage the public policy factors underlying the exemption.

 

52.       I agree with Judge Williams in para. 62 of Aitchison that it is not sensible to attempt to rank the strength of the public interest factors behind the exemptions, for a number of reasons.

 

53.       First, I find it difficult to see, for example, how it can be said that undermining of the law officers’ convention (s.35(1)(c)) is necessarily more or less prejudicial to the public interest than undermining of the convention of collective cabinet responsibility (one of the interests underlying s.35(1)(b)) or than the maintaining of safe space within which government policy can be formulated (s.35(1)(a) and also (b)). Secondly, and in any event, the four subsections of s.35(1) do not each have one self-contained public interest factor or policy reason underlying them. In relation to s.35(1)(a) and (b) in particular, a number of different public policy reasons have been identified. Thirdly, and most importantly, the various policy reasons will be in play to different extents, or not at all, depending on the facts of the particular case.

 

54.       As far as section 35(1)(b) is concerned, I accept Mr Hopkins’ submission that the fact that the information has merely to “relate to” Ministerial communications means that the exemption could be engaged without bringing into play to any significant extent any of the public policy considerations underlying the exemption. Mr Eadie’s answer to that at the hearing was to say that one should exclude what he referred to as “outlier” cases which do not impact on the convention of cabinet responsibility etc, and that that does not affect his argument that there is necessarily inherent weight where one of the policy reasons behind the exemption is engaged. However, once one accepts that there can be cases within s.35(1)(b) which do not attract any inherent weight, that in my judgment demonstrates a fatal flaw in the contention that, as a matter of statutory construction, Parliament intended that some significant weight should be attached to the exemption in s.35(1)(b).

 

55.       In the present case the information sought was not the content of ministerial communications, but information relating to them, namely information as to the number of meetings of a Cabinet sub-committee over a two year period. It is not obvious that that would conflict with the convention of collective cabinet responsibility. It seems to me that the Skeleton Argument of Mr Eadie QC and Mr Dunlop in effect acknowleges that, when dealing with the second ground of appeal, and I therefore think it worth setting out the following passages from that Skeleton:

 

“33. .....section 35(1)(b) has inherent weight because there are good reasons why information relating to Ministerial communications should not generally be disclosable. The disclosure of such information is liable to offend against the principle of Cabinet collective responsibility, which is also a longstanding convention enshrined in the Ministerial Code.

 

34.       In particular, there are two reasons why information as to the number of meetings held by a Cabinet committee or sub-committee should not generally be disclosed, in the absence of some specific and countervailing interest.

 

35.       First, such information allows the public to identify the internal process through which a decision was made and the level of committee by which a decision is taken. This is a direct contravention of §2.3 of the Ministerial Code on cabinet collective responsibility (“The internal process through which a decision has been made, or the level of Committee by which it was taken should not be disclosed”). If the number of such meetings were disclosable, the public could tie decisions to meetings and thereby identify the internal process by which the decision was made and the level of committee by which it was taken. This would undermine the principle of cabinet collective responsibility.

 

36.       Secondly, such information is liable to change the behaviour of government in a way that is inimical to good government. ......................................

 

37.       .............................................. disclosure of the requested information in relation to the RRC would not provide the public with any information it does not already have as to “the level of Committee by which [a decision] was taken”. (see §2.3 of the Ministerial Code). However, even so, disclosure would, or might, ‘reveal the internal process through which a decision has been made’ (see §2.3 of the Ministerial Code). Not all decisions of the RRC are taken after a meeting. Some decisions are taken by internal correspondence. If the period of the request had been shorter it might have revealed whether a decision of the RRC was made after a meeting or by way of correspondence. However, the CO accepts that, in this particular case, because of the long period with which the request was concerned, disclosure of the requested information was unlikely to reveal anything about the process by which any decisions of the RRC were taken.

 

38.       The Tribunal, in its reasoning, does not expressly engage with these points. The Tribunal does not analyse whether disclosure of the requested information would reveal the internal process through which decisions by the RRC have been taken. If and in so far as the Tribunal dismissed the argument on collective cabinet responsibility because of the unusually public nature of the RRC’s role in decision making, and the long period of time with which the request was concerned, the CO does not disagree with it.”

 

56.       Nor was it in my judgment obvious that any compulsory disclosure of that information would have some sort of effect on the way ministers behave in future. It was in my judgment for the FTT to evaluate the evidence before it, and in particular that of Dr. Baldwin, that there would be damage to the public interest. But the FTT was not in my judgment required to start from the position, regardless of the evidence in the particular case, that there would necessarily be some general damage to the public interest resulting from disclosure.

 

57.       Even where the information sought itself falls squarely within the definition of “ministerial communications”, as opposed to being merely information which “relates to” ministerial communications, disclosure may not necessarily, on the facts of the particular case, bring into play to any significant extent any of the policy reasons behind the exemption. I would respectfully endorse what was said in paras. 85 to 87 of the Scotland Office case.

 

58.       As Mr Eadie points out, that case was decided before HM Treasury, which related to s.35(1)(c). Mr Hopkins made clear that the Commissioner does not take issue with HM Treasury. The exemption in s.35(1)(c) is, like the other subparagraphs, applicable in the case of information which “relates to” the specified matter. However, I am not persuaded that anything in HM Treasury is inconsistent with the views which I have stated, for the following reasons.

 

59.       First, notwithstanding the presence of the word “relates to”, it is clear that Blake J proceeded on what he saw as the important footing that the scope of the exemption (in that case the “neither confirm nor deny” exemption arising by virtue of the combination of s.35(1)(b) and s.35(3)) was coterminous with the law officers’ convention:

 

            “By contrast, the ground of exemption here relied upon is very specific. Parliament has precisely identified as exempt the issue as to whether or not the law officers have given their advice.” (para. 35).

 

60.       In my judgment Blake J’s reasoning therefore has no necessary application to a case where the scope of the exemption is not coterminous with the public policy reasons underlying it. Section 35(1)(b) is different from s.35(1)(c) because there are a number of conventions and policy reasons potentially underlying it, and because those may not be engaged at all on the particular facts.

 

61.       Secondly, on the facts in HM Treasury, where the request was for the actual advice given by the law officer (if it was a law officer who advised), there was no need to consider the possible significance of the words “relates to”. However, it seems to me that the presence of those words means that there may be situations where even the exemption in s.35(1)(c) can be engaged without any necessary assumption of some inherent weight. Suppose, to take an example which has a parallel to the information request in this appeal, a request were to be made for the number of occasions on which the Attorney-General had provided advice to Government in the previous 2 years. That would not be a request which, if complied with, would obviously undermine the public policy reasons behind the law officers’ convention. The answer would obviously not reveal the substance of any advice, nor whether advice had been sought or given on any particular matter. To take another example, suppose that it were in the public domain that one of the law officers had advised on a particular matter, and a request were made simply as to whether the advice was from the Attorney-General or the Solicitor-General. Again, it is not obvious that compliance with the request would conflict with the policy underlying the law officers’ convention. It might do on the particular facts, but it might not.

 

62.       I agree with Mr Hopkins that the exemption in s.42 is different, for two reasons. The first is because it exempts “information in respect of which a claim to legal professional privilege ..... could be maintained in legal proceedings”. The exemption is coterminous with the doctrine of legal professional privilege, which the exemption is designed to protect. The “relates to” complication is not present.

 

63.       The second reason is that it has been accepted in case law under s.42 that any compulsory disclosure of legally privileged information will to some extent weaken the important doctrine of legal professional privilege in relation to future cases, with detrimental consequences to the ability of persons to obtain legal advice on a full and frank basis: see DCLG v IC & WR [2012] UKUT 103 (AAC) at [42] to [46].

 

64.       I do not think that what Judge Williams said in para. 62 of Aitchison clearly supports either party’s contention. It is clear that in the last three sentences of that paragraph he was saying that there is no particular amount of weight which must be attributed to the public interest factors underlying the exemption in s.35(1)(b), but I do not think he was there addressing the question whether that exemption necessarily carries some inherent weight. I do not think that there is anything in Aitchison which is inconsistent with Mr Hopkins’ submissions, although it may not positively support them.

 

65.       Neither side has referred me to section 36 of FOIA as relevant to Ground 1. The public policy interests sought to be protected by sections 35 and 36 substantially overlap, but section 35 is a class-based exemption whereas section 36 is prejudice-based. That fact, together with the express provision in s.36(1)(a) that information which is exempt under s.35 cannot be exempt under s.36, might be argued to indicate that the exemptions in s.35 necessarily carry inherent weight. However, I am satisfied that that is really no more than an argument that the exemptions in s.35 carry inherent weight because they are class-based, an argument which the CO does not seek to advance in relation to s.35(1)(a). However, s.36(2)(a)(i) is potentially significant in indicating the importance attached by FOIA to the convention of Cabinet (or ministerial) collective responsibility.

 

66.       In my view it is potentially misleading to describe the result of all this as being that the exemption in s.35(1)(c) carries “inherent weight”, but that those in s.35(1)(a), (b) and (d) do not. (I note, for example, that para. 188 of the Commissioner’s Guidance Note in relation to section 35 states that “there is no inherent or automatic public interest in withholding information just because it falls within one of these class-based exemptions (except section 35(1)(c), which does always attract strong inherent weight”)).

 

67.       I think that some confusion and apparent contradiction has been introduced into the case law by formulating the question as being whether the exemption in a particular subsection of section 35(1) carries inherent weight. In my judgment it is preferable (i) to consider to what extent the public interest factors potentially underlying the relevant exemption are in play in the particular case and then (ii) to consider what weight attaches to those factors, on the particular facts. That seems to me essentially the approach which the Commissioner, via Mr Hopkins’ submissions in the present case, advocates.

 

68.       It does not of course follow that a tribunal cannot go wrong in law if it adopts that approach and finds that there is no significant public interest in maintaining the exemption. If, for example, a tribunal finds (or could on the evidence only properly find) that disclosure of the information would directly impact upon on one or more of the public policy concerns underlying s.35(1)(a) and/or (b) (e.g. “safe space”, collective Cabinet responsibility etc), it may be that the only proper finding would then be that there would necessarily be significant general damage to the public interest resulting from the likely effect on ministerial or other official behaviour in the future. It seems to me that the limits on the freedom of the fact finding body’s decision making ability, in relation to these exemptions, will need to be established very much on a case by case basis.

 

69.       But, for the reasons which I have given, I am satisfied that the FTT in the present case did not go wrong in law in the approach which it took. It did not go wrong in law in stating in para. 21 that “there is no question of the mere fact of engagement [of section 35(1)(b)] contributing any inherent weight in favour of maintaining the exemption.”

 

70.       It follows, further, that it did not go wrong in law merely because it concluded (para. 29) that “the public interest in maintaining the exemption is so weak that it does not equal, let alone outweigh, the public interest in disclosure.”

 

Ground of appeal 2: misunderstanding Dr Baldwin’s evidence

71.       The second ground of appeal includes a contention that the Tribunal failed to take into account and/or give appropriate weight to and/or understand the evidence of Dr Baldwin to the effect that compulsory disclosure of the requested information could change the behaviour of government in a way that is inimical to good government.

 

72.       In his witness statement, Dr Baldwin explained this aspect of the prejudice to good government as follows:

 

            “24.      In the longer term ministers and their advisers would attempt to forestall possible misunderstanding about the process by which a decision was reached. In this context it would not matter whether public comment generally approved or generally disapproved of the number of meetings disclosed. Ministers would consider in advance how they would defend the process by which they arrived at a decision as well as the decision itself. This would undermine ministers’ freedom to determine, on the basis of their leadership of the process of policy formulation, how frequently they need to meet to make progress in any particular case. The ‘rules’ aired by observers of the constitution from their position exterior to the policy making process would be bound to influence the thinking of those involved in the actuality of policy formulation and development.

 

            25.       The ‘rules’ that emerge from this process would bear little relationship to the actual needs of policy development. Abstracted from the process of specific policy making, they are also likely to be insufficiently flexible to meet the concrete circumstances in each of the many different areas in which governments make policy. Inflexibility is a lesser fault, however. The paramount fault with such an approach is that it runs counter to both the spirit and practice of democratic accountability which underpins government in the United Kingdom.”

 

73.       The Commissioner, when dealing with the complaint, had not had the benefit of Dr. Baldwin’s witness statement. However, he did have a letter dated 6 February 2013 from Mr Roger Smethurst, Deputy Director and Head of the Knowledge and Information Unit at the CO, in which he dealt with the ‘change of behaviour’ point as follows:

 

            “18.      Ministers might feel that they have to hold meetings or discuss certain subjects in specific forums, if this information is made public. Reducing regulation matters can be discussed in many different meetings, including at Cabinet, in other Committee meetings and at bi-lateral Ministerial meetings. If the number of meetings held is made public, Ministers are likely to feel pressurised into holding meetings and using these to formulate policy on reducing regulation – this may not be the most appropriate forum to do so, and lead to other considerations which are normally raised through other channels being excluded.

 

            ...............................................................................

 

            21.       Disclosing the requested information might also undermine Ministerial communications (as protected by regulation 35(1)(b)) as Cabinet Committee meetings are a major way in which Ministers communicate and develop policy. In addition, Ministers might be less willing to resolve matters via correspondence if the number of times which a Committee met were made public. This is because they might seek to hold more meetings to be able to report that fact, and thus would discuss matters in person instead of via letters. Letters are sometimes the most appropriate way of agreeing issues, and can allow more detailed discussion of complex issues.”

 

74.       What was the FTT’s finding in relation to that evidence? It is necessary for me to refer to the following parts of its decision.

 

75.       In para. 10, when summarising the Commissioner’s decision, it said that the Commissioner rejected the three arguments put forward by the CO, of which it stated the second as being:

 

            “Ministers might become less willing to address policy matters in detailed correspondence, preferring to do so only during RRC meetings. They might feel that, although less conducive to a thorough and detailed dialogue, this would enable them to record the fact that meetings had in fact taken place. The [Commissioner] considered that the public had a right to expect Ministers to be more robust in determining the best way of working, regardless of public perception.”

 

76.       I have set out in para. 8 above the FTT’s summary of Dr Baldwin’s evidence. I refer in particular to what it said in para. 19. Mr Eadie contends that in that summary the FTT made no reference to Dr Baldwin’s concern that disclosure would lead ministers to take steps to “forestall possible misunderstanding.” However, the last sentence of para. 19 can in my judgment probably be taken as a reference to that. It has to be said that Dr. Baldwin’s statement itself is very imprecise as to what the steps to forestall public misunderstanding might be. It was Mr Smethurst’s letter which had been more specific.

 

77.       Under the heading ‘Public interest in maintaining the exemptions’  the FTT said:

 

            “24.      ..... the Information Commissioner argued that disclosure posed no threat to good government. The Cabinet Office argued (in addition to the risk of misunderstanding considered above) that disclosure would damage the convention of collective decision making and would create a risk of Ministers removing decision-making from formal Cabinet committee meetings. We deal with each argument in turn.

 

            25.       Collective responsibility: The parties were in agreement that there is a strong public interest in protecting the convention of collective decision making but the Information Commissioner did not accept the Cabinet Office contentions that the protection would be undermined because, for the reasons put forward by Dr Baldwin, release of the withheld information would disclose details about the processes followed by Ministers in relation to Cabinet sub-committee decision making. He argued that the integrity and confidentiality of how those who agreed to take responsibility for a particular decision reached [it] would not be impaired in any way by the disclosure of the number of meetings that took place. We think that is correct. And we do not accept the argument put forward by [counsel for the CO], to the effect that disclosure of this information would set a trend, representing a first step on a slippery slope that would lead to the release of increasing quantities of information. The protection against that happening lies in the process for controlling the release of information in response to future FOIA requests, of which this Tribunal’s procedure forms a part.

 

            26.       “Behaviour change: The Cabinet Office argued that if Ministers knew that the number of Cabinet sub-committee meetings would be made public, they would fear that the information would be taken out of context and misinterpreted by the public. They might then take steps to avoid that happening by, for example, fixing a set number of meetings each year and arranging for issues arising between meetings to be decided more informally, thereby removing the process from the established Cabinet structure of minuted meetings. This might preserve “safe space” for Ministers to make decisions but would undermine the concept of responsibility for decision making. The Information Commissioner accepted the broad concept of Ministers having such safe space for decision making but did not think that the disclosure of information about the procedure set up for decision making would impose on it, particularly as Ministers’ freedom to set their own procedures have already been severely limited by the release into the public domain of a great deal of information about how the reducing regulation process operated. On this point we agree with the Information Commissioner – we do not accept that Ministers will, or should, adjust the processes by which they make decisions in order to manipulate the freedom of information processes to avoid openness and transparency.”

 

78.       In my judgment the CO is justified in submitting that paras. 24 and 26 indicate that the FTT appears to have misunderstood the CO’s case in relation to this aspect of prejudice to the public interest. The CO’s case was not that disclosure would “create a risk of Ministers removing decision-making from formal Cabinet committee meetings” and was not that Ministers would “arrang[e] for issues arising between meetings to be decided more informally.” Rather, it was to the effect that, in order not to have to meet accusations that a particular issue was being neglected, or inadequately considered, by government, there would if anything be more committee meetings than were really necessary. But more importantly, it was not the CO’s case that Ministers would “adjust the processes by which they make decisions in order to manipulate the freedom of information processes to avoid openness and transparency.” There was no suggestion in Dr Baldwin’s witness statement that Ministers would seek to avoid information being public by removing policy discussion from formal committee meetings.

 

79.       Mr Hopkins submits that the essential relevant points being made by Dr Baldwin were that Ministers would attempt to “forestall potential misunderstanding about the process by which a decision was reached”, that they would “consider in advance how they would defend the process”, and that this would undermine their freedom to determine how frequently they needed to meet (see para. 24 of Dr Baldwin’s witness statement, set out at para. 72 above). Mr Hopkins submits that the FTT did understand this essential point, but found that it was unlikely that Ministers would in fact behave in that manner. He submits, therefore, that on a fair reading of the FTT’s decision it did understand the point, but rejected it, and that the challenge being made is really a perversity challenge.  

 

80.       However, in my judgment it is apparent from the last sentence of its paragraph 26 that an important part of the FTT’s reason for rejecting the CO’s contention was that it did not think that Ministers either would or should adjust processes in order to manipulate freedom of information processes in order to avoid openness or transparency. It seems that it reasoned that Ministers would not adjust their processes because it would be wrong for them to do so in order to attempt to avoid openness and transparency. The apparent misunderstanding was in my view therefore not as to inessential detail, but as what the FTT itself saw as an important part of the CO’s contention.

 

81.       It is something of a mystery as to what could have caused the FTT to make this error; it seems a strange error to have made, particularly in view of the fact that in para. 10b, when summarising the Commissioner’s decision, it had referred to the CO’s contention correctly, and had further correctly recorded the Commissioner’s conclusion that “the ...Commissoner considered that the public had a right to expect Ministers to be more robust in determining the best way of working, regardless of public perception.” The Commissioner clearly did not make the error which the FTT did. However, Mr Hopkins, who as I have mentioned represented the Commissioner before the FTT, has not suggested that anything was said to the FTT by counsel then acting for the CO which justified the FTT in setting out the CO’s contention in the way in which it did in its para. 26.

 

82.       I do not therefore think that this is a case where I can say with sufficient confidence that the FTT must have understood the essential point being made, and was simply intending to find, like the Commissioner, that it was unlikely that Ministers would adjust their processes, and that in giving its precise reasons it has gone on to express itself badly but without affecting the validity of its main finding. 

 

83.       In my judgment the second ground of appeal therefore succeeds. It is therefore unnecessary for me to consider the third ground of appeal, which relates to the FTT’s reasons in relation to the public interest in disclosure.

 

Outcome

84.       The FTT’s decision must be set aside, and the matter remitted to a freshly constituted FTT, as directed in paragraph 1 above.

 

 

 

Charles Turnbull

Judge of the Upper Tribunal

20 October 2014