Dorian Grehold v The Information Commissioner & Anor
[2024] UKFTT 40 (GRC)
Dorian Grehold v The Information Commissioner
17 January 2024
[2024] UKFTT 39 (GRC)
First-tier Tribunal
Someone asked for information about the cost of building the Holocaust Memorial, specifically how much was added to cover potential cost overruns. The government refused, saying it was part of their policy planning and releasing it would hurt their ability to make decisions. The court agreed, saying the information was closely related to policy making and releasing it now wouldn't be in the public interest.
Key Facts
- •Appeal against the Information Commissioner's decision notice refusing access to information on the cost of the Holocaust Memorial and Learning Centre.
- •Appellant requested information on the allowance made for 'optimism bias' in the estimated cost.
- •The Department for Levelling Up, Housing and Communities (DLUHC) refused the request citing the exemption for formulation of government policy (section 35(1)(a) of the Freedom of Information Act 2000).
- •The Information Commissioner upheld the DLUHC's refusal.
- •The appeal argued that the information did not relate to policy formulation and that the public interest test was incorrectly applied.
- •The Tribunal considered previous case law and the ongoing nature of policy decisions related to the project, including site selection and planning permission.
Legal Principles
Section 35(1)(a) of the Freedom of Information Act 2000 allows for the withholding of information relating to the formulation or development of government policy.
Freedom of Information Act 2000
The public interest test under section 35(4) FOIA must be considered when determining whether to disclose factual information used in policy decision-making.
Freedom of Information Act 2000, Section 35(4)
Information need not be directly about policy, but only needs to 'relate to' the formulation or development of government policy to be exempt under section 35(1)(a).
This Tribunal's finding
The relevant time for consideration is the time of refusal of the request.
Tribunal's consideration
The Tribunal will consider the information actually requested, not the entire business case if only a portion is requested.
Tribunal's finding
Outcomes
The appeal was dismissed.
The Tribunal found that the requested information related to the formulation of government policy and that the public interest favored withholding the information.
Section 35(1)(a) FOIA was engaged.
The information requested, relating to optimism bias calculations within the business case, was inextricably linked to the ongoing policy formulation and decision-making process surrounding the HMLC, which included live issues such as planning permission.
Public interest test favoured withholding the information.
The Tribunal found the public interest in this very specific information was quite limited, while the arguments for maintaining a safe space for policy deliberations were strong.
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