Daniel Edwards v The Information Commissioner
[2024] UKFTT 571 (GRC)
Perrys Motor Sales/Perrys Group Limited v Information Commissioner & Anor
26 January 2024
[2024] UKFTT 62 (GRC)
First-tier Tribunal
A company asked the government for information about how it handled insurance payouts during the pandemic. The government refused, saying it was still working out its policy. A court agreed with the government, saying the government needs a 'safe space' to discuss these things without interference.
Key Facts
- •Perry's Motor Sales/Perry's Group Limited (Appellant) requested information from HM Treasury (HMT) concerning discussions about deducting government Covid-19 business support payments from business interruption insurance payouts.
- •HMT initially withheld information citing exemptions under sections 35(1)(a), 42, and 43 of the Freedom of Information Act 2000 (FOIA).
- •Following an internal review, HMT withdrew reliance on section 43 but maintained sections 35(1)(a) and 42.
- •The Information Commissioner upheld HMT's reliance on sections 35(1)(a) and 42.
- •Perry's appealed the Commissioner's decision to the First-tier Tribunal (FTT).
Legal Principles
Section 35(1)(a) FOIA exempts information relating to the formulation or development of government policy. This is a class-based exemption; prejudice from disclosure need not be demonstrated.
Freedom of Information Act 2000
The public interest test under section 2(2) FOIA applies to qualified exemptions like section 35(1)(a). The Tribunal weighs the public interest in maintaining the exemption against the public interest in disclosure.
Freedom of Information Act 2000
Section 42(1) FOIA exempts information protected by legal professional privilege. A public interest test also applies.
Freedom of Information Act 2000
In applying section 35(1)(a) FOIA, the focus is on the content of the information, not the timing of the FOIA request relative to the decision-making process. The policy-making process need not be 'live'.
Cabinet Office v IC and Morland [2018] UKUT 67 (AAC)
Outcomes
The appeal was dismissed.
The FTT found that HMT was actively formulating and developing policy regarding the treatment of government support payments in business interruption insurance claims during the relevant period. The FTT accepted HMT's arguments that the public interest in maintaining a 'safe space' for policy development outweighed the public interest in disclosure, particularly given the ongoing litigation and involvement of multiple bodies.