Department for Work and Pensions v The Information Commissioner & Anor
[2023] UKFTT 260 (GRC)
Department for Levelling Up, Housing and Communities v The Information Commissioner
21 March 2023
[2023] UKFTT 427 (GRC)
First-tier Tribunal
The government wanted to keep secret a report about how they chose towns for a big money fund. A judge said most of it had to be released because the public has a right to know how that money was decided, even if it might make officials less open in the future.
Key Facts
- •Two joined appeals against the Information Commissioner's decision requiring the Department for Levelling Up, Housing and Communities (DLUHC) to disclose an Accounting Officer's assessment of the Towns Fund selection process.
- •Requests were made by journalists from the BBC and The Times.
- •DLUHC withheld information citing sections 35(1)(a), 36(2), and 42(1) of the Freedom of Information Act 2000 (FOIA).
- •The assessment related to the selection of 101 towns to bid for £3.6 billion in funding.
- •A summary of the assessment was already publicly available.
- •The National Audit Office (NAO) and Public Accounts Committee (PAC) had also published reports on the selection process, having access to the full assessment.
Legal Principles
Public interest test under section 2(2)(b) FOIA: Balancing public interest in maintaining the exemption against the public interest in disclosing the information.
APPGER v Information Commissioner and Foreign and Commonwealth Office [2016] AACR 5
Section 35(1)(a) FOIA: Information relating to the formulation or development of government policy is exempt.
Freedom of Information Act 2000
'Relates to' in section 35(1)(a) has a broad meaning but should not be interpreted with uncritical liberalism.
Department of Health v ICO [2017] 1 WLR
Section 36(2) FOIA: Information is exempt if, in the reasonable opinion of a qualified person, disclosure would prejudice the effective conduct of public affairs.
Freedom of Information Act 2000
Substantive reasonableness of a qualified person's opinion under section 36(2): The opinion must appropriately identify, prove, explain and examine the harm and address weaknesses in the chilling effect argument.
Davies v ICO [2019] 1 WLR
Section 42(1) FOIA: Legal professional privilege.
Freedom of Information Act 2000
Outcomes
Appeals allowed in part.
Section 42 exemption applied to legal advice; sections 35 and 36 exemptions did not apply to the remaining information due to the public interest in disclosure outweighing the need to maintain the exemption.
DLUHC required to disclose the remainder of the requested information within 35 days.
Public interest in transparency and accountability regarding the allocation of £3.6 billion in funding outweighed the potential chilling effect on future assessments.