Fiona Thompson v The Information Commissioner & Anor
[2024] UKFTT 391 (GRC)
Rosemary Smith v The Information Commissioner & Anor
13 March 2024
[2024] UKFTT 212 (GRC)
First-tier Tribunal
Someone asked the government for emails about a controversial tax policy (the Loan Charge). The government refused, saying it was too much work and some information was secret. A judge mostly agreed with the government but ordered them to release some extra emails they'd found later and criticized their poor handling of the request.
Key Facts
- •Rosemary Smith (Appellant) appealed a Decision Notice (DN) from the Information Commissioner concerning a Freedom of Information Act 2000 (FOIA) request to HM Treasury (2nd Respondent).
- •The request sought emails and letters from Beth Russell, Director General Tax and Welfare, regarding the Loan Charge.
- •HM Treasury initially refused the request citing excessive burden (s.14(1) FOIA), then disclosed some information with redactions under sections 35(1)(a), 36(2)(b)(ii), and 40(2) FOIA.
- •The Commissioner upheld the Treasury's redactions, leading to the appeal.
- •The appeal challenged the application of sections 35(1)(a) and 36(2)(b)(ii) FOIA, arguing insufficient disclosure and an unreasonable public interest test.
- •Subsequent to the initial hearing, further information was discovered and disclosed by HM Treasury.
Legal Principles
Section 35(1)(a) FOIA exempts information relating to the formulation or development of government policy.
Freedom of Information Act 2000
Section 36(2)(b)(ii) FOIA allows withholding if disclosure would likely prejudice the effective conduct of public affairs.
Freedom of Information Act 2000
The public interest test under FOIA requires a balancing exercise between the public interest in disclosure and the public interest in withholding.
Freedom of Information Act 2000
The Tribunal's role is to review the legality of the Decision Notice, not the Commissioner's process.
Previous First-tier Tribunal judgments (Billings v Information Commissioner, Stevenson v Information Commissioner, Wilson v Information Commissioner)
Outcomes
The appeal was allowed in part.
The Tribunal found that the newly disclosed information (post-DN) was wrongly withheld. The remaining withheld information was deemed properly withheld under sections 35(1)(a) and 36(2)(b)(ii) FOIA after balancing the public interest.
No further action was required of the 2nd Respondent (HM Treasury).
While the Tribunal acknowledged HM Treasury's unsatisfactory handling of the request and breach of s.10 FOIA, the additional disclosures rendered further action unnecessary.