Earlier this week, the First-Tier Tribunal issued a decision in relation to two appeals against information notices served on the Cabinet Office by the Information Commissioner in relation to requests by journalists connected to the Good Law Project and the Times.

The first appeal arose out of a request made by someone described as a journalist at the Good Law Project for the name of the investment fund based in the United States of America that had been operating a blind management or trust arrangement in relation to the former Prime Minister, The Rt. Hon Rishi Sunak. The second appeal concerned a request for information made to the Cabinet Office by a journalist at the Times which sought disclosure of the then Prime Minister’s full declaration of interests document, including all the interests submitted to the Independent Adviser on Ministerial Interests as at the date of the request for information.

In relation to both requests, the Cabinet Office had withheld the information and the respective requesters had complained to the Information Commissioner under section 50 of the Freedom of Information Act 2000.

As is standard practice for the Commissioner, the Cabinet Office was written to with various questions as well as a request to provide a full unredacted copy of the information that was held by the Cabinet Office which was in scope. The Cabinet Office refused to provide a full unredacted copy of the former Prime Minister’s completed ministerial declaration of interest documents. It did so citing the “hugely significant sensitivities in terms of personal data and potential security implications.” The Cabinet Office explained that the documents were “handled extremely carefully within government, with only a very small number of people having access to it, on a strictly need-to-know and ‘hard copy’ basis.”

The Commissioner and the Cabinet Office then entered into correspondence and meetings took place between the Commissioner and a senior official from the Cabinet Office. The Commissioner then served information notices on the Cabinet Office pursuant to his powers under section 51 of the Freedom of Information Act 2000. The Cabinet office exercised its right of appeal, under section 57(2) of the Freedom of Information Act 2000, against the Commissioner’s decision to issue the information notices.

The first ground of appeal dealt with by the tribunal (referred to as Ground 1A in the Tribunal’s decision) was that the Commissioner’s power to issue an information notice is subject to a requirement that he reasonably require the information. The Cabinet office contended that the Commissioner had not identified any sensible basis upon which parliament might have intended a different operation of section 51(1)(a) and section 51(1)(b). Section 51(1)(a) provides that where the Commissioner has received an application under section 50 he may serve an information notice on the public authority whereas section 51(1)(b) confers a power upon the commissioner to issue an information notice where he “reasonably requires” information (i) “for the purpose of determining whether a public authority has complied or is complying with any of the requirements of Part I” or (ii) “for the purpose of determining whether the practice of a public authority in relation to the exercise of its functions under this Act conforms with that proposed in the codes of practice under sections 45 and 46.”

The Tribunal did not accept this proposition from the Cabinet Office. At [40], the tribunal found “no ambiguity” and accepted “the proposition that what the Cabinet Office is seeking to do is to read words into a statute which are not there and which are not necessary for it to make sense.” The Tribunal continued noting that there is a clear textual difference which can be seen by the use of the word “or” at the end of section 51(1)(a) and from the way in which the different duties had been separated out.

In essence, the Tribunal was satisfied that where the information notice is issued in circumstances where the Commissioner had received a complaint under section 50, the only limitations on his powers to issue an information notice are the usual public law ones.

The second ground considered by the Tribunal in its decision (referred to as Ground 1B in its decision) concerned the Cabinet Office’s contention that the Commissioner receiving and using the information would involve the unlawful processing of personal data. While the Tribunal accepted, at para [41], the contention that the Commissioner receiving the information and then using it to determine the section 50 complaints would amount to the processing of personal data under both the UK General Data Protection Regulation and the Data Protection Act 2018, it did not accept the submission on behalf of the Cabinet Office that (i) the processing by the Commissioner would not satisfy any of the conditions in Article 6(1) of the UK General Data Protection Regulation or (ii) that it would be unfair to the former Prime Minister in that it would be contrary to reasonable expectations of confidentiality that he had.

At [49] of its decision, the Tribunal recorded that it had “no reason to doubt the acceptance that ministers would or should be aware of Freedom of Information legislation and of course on the way in which a request would be handled including the way in which a complaint would be handled by the Commissioner and his office and the applicable exemptions.” In other words, although ministers, such as the Former Prime Minister, had a reasonable expectation of confidence in relation to the information they would be aware that the contents may be the subject of requests for information and that it would likely be disclosed to the Information Commissioner were a complaint made concerning a refusal to provide information within the declarations of interests.

The final ground of appeal dealt with by the Tribunal (referred to as Ground 2 in its decision), concerned the question of whether the Commissioner should have exercised his discretion to serve an information notice differently. The Tribunal noted that there was an overlap between this and what it refers to as ground 1B. The Tribunal began by finding, at [52], “that it would be an unusual case in which the Commissioner would simply accept a public authority’s assurance that the exemptions sought were made out.”

The Tribunal concluded, at [63], that it would not be possible for the Commissioner to determine any of the exemptions relied upon were made out without an examination of the material. It is a core element of the Commissioner’s duties when dealing with a complaint under section 50 to consider whether any exemption cited by the public authority applies to any or all of the withheld information.

Earlier in its decision the Tribunal had noted the terms of section 132 of the Data Protection Act 2018. That section prohibits, without lawful authority, the disclosure by the Commissioner or any member of his staff of information which (i) has been obtained by, or provided to the Commissioner, in the course of or for the purposes of discharging his functions, (ii) relates to an identified or identifiable individual or business and (iii) is not available to the public from other sources at the time of the disclosure and has not previously been publicly available from other sources. It also makes it an offence to knowingly or recklessly disclose such information (section 132(3)). This section provides a clear safeguard against the onward disclosure of information which has been provided in confidence to the Commissioner as part of his discharge of his functions under the Freedom of Information Act 2000.

It had also been argued that the service of the information notices had been premature. The Tribunal determined, at [57], that it was not satisfied, on the evidence, that the request was premature. The Tribunal stated, at [57], that the information notices were only issued “after a sustained period of negotiation and in any event provided 30 calendar days for compliance.” The Tribunal also noted that the Cabinet Office had also been given time to arrange for inspection of the information, which they had initially indicated was acceptable.

The Tribunal dismissed the appeals against the information notices.

The Tribunal had joined the Good Law Project as a party, but only in relation to what is described as the first appeal. The Tribunal considered that the submissions on behalf of the Good Law Project “added little of substance” to what had been said in the submissions on behalf of the Cabinet Office and the Information Commissioner and that much of the submissions made on behalf of the Good Law Project related to a matter that was “manifestly out with the scope of this appeal” (specifically the extent to which any exemptions might apply). Where an appeal has been brought against the service of an information notice, requesters may wish to consider whether they really need to be involved in such an appeal and what, if anything, they could realistically add to assist the Tribunal. Such an appeal does not really offer an opportunity to argue against the application of any exemptions or where the public interest lies in relation to maintaining any qualified exemptions.

Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.