Cabinet Office v Information Commissioner
[2023] UKFTT 1025 (GRC)
Henry Dyer v The Information Commissioner & Ors
20 November 2024
[2024] UKFTT 1042 (GRC)
First-tier Tribunal
Someone requested government documents about a former minister's job after leaving office. The government said releasing the documents would hurt their ability to get good advice in the future. A court agreed, saying protecting the process of getting that advice was more important than releasing the documents, even though the government initially gave inaccurate information.
Key Facts
- •Henry Dyer requested information from the Department for Business and Trade (formerly DIT) under the Freedom of Information Act 2000 (FOIA) regarding consultations between the Advisory Committee on Business Appointments (ACOBA) and the Permanent Secretary about a job taken up by Liam Fox.
- •The Department refused the request, citing exemptions under sections 36, 40, and 43 of FOIA.
- •The Information Commissioner upheld the Department's decision, finding that section 36(2)(b)(i) & (ii) and section 36(2)(c) FOIA applied.
- •Dyer appealed to the First-tier Tribunal (General Regulatory Chamber).
- •The Department disclosed some information during and after the hearing.
- •The Tribunal considered whether the Commissioner's Decision Notice was in accordance with the law.
Legal Principles
FOIA's general right of access is subject to exemptions, including section 36 (prejudice to the effective conduct of public affairs).
Freedom of Information Act 2000
Section 36 is a qualified exemption; the public interest in maintaining the exemption must outweigh the public interest in disclosure.
Freedom of Information Act 2000, section 2(2)(b)
For section 36 to apply, a Qualified Person's opinion that disclosure would cause prejudice must be reasonable, and the public interest balancing test must favor maintaining the exemption.
Case law, particularly IC v Malnick and ACOBA [2018] UKUT 72 (AAC)
The Tribunal acts as a fresh decision-maker on the evidence and does not review the Commissioner's process.
Case law and Tribunal procedure
Additional FOIA exemptions considered included sections 40 (personal information), 41 (information provided in confidence), and 43 (commercial interests).
Freedom of Information Act 2000
Outcomes
The appeal was dismissed.
The Tribunal found that the Qualified Persons' opinions were reasonable, the public interest favored maintaining the exemption under section 36, and no errors of law were identified in the Commissioner's Decision Notice.