Department for Work and Pensions v Information Commissioner & Anor
[2023] UKFTT 822 (GRC)
Department of Work and Pensions v The Information Commissioner
25 April 2024
[2024] UKFTT 334 (GRC)
First-tier Tribunal
Someone asked the government for documents about ending extra Universal Credit. The government said no, citing confidentiality. A judge reviewed the case and decided the public's right to know outweighed the government's concerns about confidentiality, so the documents must be released, with some sensitive parts removed.
Key Facts
- •Appeal against the Information Commissioner's decision regarding a Freedom of Information Act 2000 (FOIA) request.
- •Request for internal DWP materials relating to the end of the £20 Universal Credit uplift.
- •DWP initially relied on FOIA sections 36(2)(b) and (c) exemptions.
- •Information Commissioner found procedural defects in the DWP's application of the exemptions.
- •DWP appealed, presenting a new qualified person's opinion supporting the exemptions.
- •Dispute centered on the public interest test under section 2(2) of FOIA.
- •DWP also relied on section 42 (legal professional privilege) exemption for some information.
- •Tribunal considered whether new exemptions could be raised on appeal.
Legal Principles
Public interest test under section 2(2) of FOIA: The right of access to information does not apply to exempt information if the public interest in maintaining the exemption outweighs the public interest in disclosure.
Freedom of Information Act 2000
Exemptions under FOIA section 36(2)(b) and (c): Information is exempt if disclosure would inhibit free and frank advice/exchange of views or prejudice the effective conduct of public affairs.
Freedom of Information Act 2000
A public authority can rely on an exemption before the Tribunal that was not relied on before the Commissioner.
Information Commissioner v Home Office [2011] UKUT 17 (AAC)
The Tribunal undertakes a fresh consideration of the case on appeal, with no general restriction on issues, evidence, or arguments.
Information Commissioner v Home Office [2011] UKUT 17 (AAC)
New exemptions can be relied on at least until a response under rule 23 of the General Regulatory Chamber tribunal procedure rules is provided.
Birkett v DEFRA [2011] EWCA Civ 1606
The qualified person's opinion is important evidence in the public interest balancing exercise, but not conclusive. The Commissioner must form their own view on the severity and likelihood of inhibition.
Guardian Newspapers Ltd and Brooke v Information Commissioner & BBC (EA/2006/0011 and EA/2006/0013, 8 January 2007)
"Chilling effect" arguments are to be treated with caution. Civil servants are expected to be robust in the face of public scrutiny.
Davies v Information Commissioner and the Cabinet Office [2019] UKUT 185 (AAC)
The public interest test must be assessed in a time-specific and case-specific way.
This case
Outcomes
Appeal dismissed.
The Tribunal agreed with the Commissioner that the DWP's concerns about chilling effect and misinformation were mitigatable. The public interest in disclosure of information relating to the Universal Credit uplift, especially given the policy decision was already made, outweighed concerns about maintaining the exemption.
DWP ordered to disclose withheld information (excluding section 42 exempt information and personal data) within 28 days.
The Tribunal found that the public interest in disclosure outweighed the public interest in maintaining the exemption under section 36(2)(b).
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