Tribunal Upholds Government Policy Exemption in UK Holocaust Memorial Information Request Appeal

Citation: [2024] UKFTT 40 (GRC)
Judgment on

Introduction

In the case of Dorian Grehold v The Information Commissioner & Anor [2024] UKFTT 40 (GRC), the First-tier Tribunal (General Regulatory Chamber) on Information Rights deliberated on an appeal under section 57 of the Freedom of Information Act 2000 (“FOIA”). The primary focus was whether exemptions under FOIA applied to information withheld by the Department for Levelling Up, Housing and Communities, concerning the UK Holocaust Memorial and Learning Centre (HMLC).

Key Facts

Dorian Grehold (the Appellant), acting as a litigant in person, sought specific information from the Department relating to the location choice and specifications for the HMLC. The Department relied on exemptions under section 35(1)(a) related to the formulation or development of government policy and section 43(2) pertaining to commercial interests. The Information Commissioner agreed with the Department’s application of section 35(1)(a) but did not proceed to assess section 43(2)‘s applicability.

Following internal reviews and the Commissioner’s decision, the Appellant appealed, arguing that withholding information allowed for misleading information by the Department, led to decision-making predicated on inadequate evidence, incorrectly applied the public interest balance, and alleged denial of live policy status.

The Tribunal centered its analysis on the following legal principles:

  1. Class-Based Exemption: Under FOIA, section 35(1)(a) is a class-based exemption that protects the integrity of the policy-making process by requiring only that the information relate to policy formulation or development, without needing to show how its disclosure would prejudice the policy process.

  2. Live Policy: A policy is considered “live” until a final decision is made, which in this case hinged upon the granting of planning permission which remained outstanding at the time of the request’s refusal.

  3. Public Interest Test: The qualified exemption of section 35(1)(a) requires a public interest test to determine if the public interest in maintaining the exemption outweighs the interest in disclosure.

  4. Safe Space Argument: The Tribunal recognized the need for a “safe space” in policy deliberation to avoid a ‘chilling effect’ on open and candid discussion.

  5. Date of Refusal Relevance: It is the state of affairs at the time of the refusal of the FOIA request, not the time of the actual request, that is relevant in the determination.

  6. Previous Case References: The Tribunal took into account previous decisions from similar cases where it was established that policy was still live and public interest favored non-disclosure.

  7. Scope of Tribunal Jurisdiction: The Tribunal confined its decision to the scope of the FOIA and the Commissioner’s decision, avoiding commentary on whether the Department’s actions were appropriate beyond the disclosure of information.

Outcomes

The Tribunal dismissed the appeal after finding no significant change in circumstances since prior judgments. The s35(1)(a) exemption was engaged, the policy was live, and the public interest favored non-disclosure. It concluded that the information fell squarely within section 35’s remit and agreed with the Information Commissioner’s decision not to disclose the requested information.

Conclusion

This case underscores the delicate balance between transparency and the need for confidentiality in the context of governmental policy formulation. The Tribunal’s decision reaffirms the importance of providing a protected space for open policy discussion, especially when planning decisions remain pending and policy issues are unsettled. The judgment reflects a rigorous application of FOIA’s provisions, prioritizing a methodological approach to public interest over individual appeal claims, and strictly adhering to previously established legal benchmarks for information exemption under FOIA.

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