Tribunal Upholds FOIA Exemption for Policy Formulation in Holocaust Memorial Cost Case

Citation: [2024] UKFTT 39 (GRC)
Judgment on

Introduction

In the case of Dorian Grehold v The Information Commissioner ([2024] UKFTT 00039 (GRC)), the First-tier Tribunal (General Regulatory Chamber) on Information Rights adjudicated on an appeal concerning a Freedom of Information Act 2000 (FOIA) request. The appellant, Dorian Grehold, sought information related to the projected costs of the UK Holocaust Memorial and Learning Centre. This tribunal hearing focused on whether the exemption under section 35(1)(a) of the FOIA, relating to the formulation or development of government policy, was justifiably applied to withhold the information requested by Grehold.

Key Facts

Dorian Grehold submitted an FOIA request to the Department for Levelling Up, Housing, and Communities, seeking details concerning the allowance for “optimism bias” in the estimated cost of the Holocaust Memorial and Learning Centre. The Department invoked section 35(1)(a) of the FOIA, asserting that the requested information pertained to ongoing government policy formulation and development.

The Information Commissioner upheld the Department’s decision. Grehold appealed, maintaining that the information did not relate to policy formulation and, even if it did, the public interest test was not correctly applied. The Department argued that the business case, including optimism bias figures, is a fundamental part of policy formulation regarding the Memorial’s establishment.

The tribunal applied several legal principles in reaching its decision:

  1. Engagement of Section 35(1)(a) FOIA: Section 35(1)(a) is a class-based exemption that allows for withholding information related to the formulation or development of government policy. For this exemption to apply, the information must be shown to “relate to” policy formulation and development, regardless of whether it constitutes policy information per se.

  2. Public Interest Test: Once it is established that the exemption under s.35(1)(a) applies, the public authority and, if challenged, the Tribunal must consider the public interest test. This involves weighing the public interest in maintaining the exemption against the public interest in disclosure.

  3. Safe Space Argument: This principle defends the withholding of information during the policy formulation phase, protecting a ‘safe space’ for government officials and ministers to deliberate without external interference or public scrutiny until the policy is finalized.

Outcomes

The Tribunal found that:

  1. The engagement of section 35(1)(a) of the FOIA was justified, as the information requested by Grehold directly related to ongoing government policy development concerning the Holocaust Memorial.

  2. The requested information could not be easily or sensibly separated from the wider business case, which encompassed a range of deliberative material necessary for informed policymaking.

  3. There was a compelling need for a confidential “safe space” to ensure candid exchange of views and prevent premature exposure of internal discussions, which could impede effective policy formulation.

  4. Disclosing the optimism bias figures could harm commercial interests and obstruct the decision-making process due to potential undue public pressure.

  5. The public interest favored withholding the information requested by Grehold, concluding that there were limited benefits to its immediate disclosure during an active phase of policy deliberation.

Therefore, the Tribunal unanimously dismissed Grehold’s appeal.

Conclusion

The Tribunal, in Dorian Grehold v The Information Commissioner, upheld the application of the FOIA section 35(1)(a) exemption, emphasizing the significance of allowing government entities the necessary ‘safe space’ for policy formulation and development. It reasserts the necessity of balancing transparency against the practical needs of policy deliberation, prioritizing the integrity of the decision-making process over immediate public access to specific details within policy-related documentation. This case reaffirms the principle that public interest can sometimes be best served by maintaining confidentiality during the sensitive stages of policy development.

Related Summaries