Tribunal Examines FOIA Exemptions in Rosemary Smith v. The Information Commissioner & Anor.

Citation: [2024] UKFTT 212 (GRC)
Judgment on


The case of Rosemary Smith v. The Information Commissioner & Anor revolves around a Freedom of Information Act 2000 (FOIA) request and the subsequent appeal process relating to withheld governmental information. At the center is the appellant’s request for information regarding the handling of the “Loan Charge” policy and its impact on individuals. The First-tier Tribunal’s decision offers insights into the application of exemptions under FOIA, particularly sections 35 and 36, and the application of the public interest test in the context of information disclosure.

Key Facts

Rosemary Smith submitted a request for information related to the Loan Charge policy, specifically concerning correspondence to and from Beth Russell, Director General Tax and Welfare. The request was initially refused under section 14(1) of FOIA due to the breadth of correspondence and burden it posed. Subsequent refinements to the request were made, resulting in partial disclosure with some information redacted under sections 40(2), 35(1)(a), and 36(2)(b)(ii) of FOIA. Smith appealed the decision, arguing that more information existed within scope and questioning the exemption justifications.

Throughout the case, further disclosures were made, and apologies were issued for the initial mishandling of the request. Challenges were raised to the exemptions applied, primarily focusing on the necessity for transparency due to the severe impact of the Loan Charge policy, including suicides and other tragic outcomes.

The Tribunal primarily addressed two legal principles under FOIA:

  1. Section 35(1)(a): This exemption relates to the formulation or development of government policy. The exemption is class-based, meaning that once the information falls under this description, it is exempt without the need to demonstrate prejudice. The Tribunal ruled that this exemption was engaged as the withheld information related to policy formulations still under active consideration at the date of the request.

  2. Section 36(2)(b)(ii): This exemption concerns the withholding of information likely to inhibit the free and frank exchange of views for the purpose of deliberation. The engagement of this exemption depends on the reasonable opinion of a ‘qualified person.’ The Tribunal found that the Qualified Person’s opinion provided by Baroness Penn was reasonable and the exemption was engaged.

The Tribunal further applied the public interest test, weighing the need for a safe space in government policy formulation against the public interest in transparency surrounding the impact of the Loan Charge policy. Although acknowledging the significant public interest in disclosure, the Tribunal concluded that the public interest in allowing a safe space for policy development slightly outweighed that in disclosure.


The Tribunal allowed the appeal in part, noting that the appellant’s right to information had been partially fulfilled through subsequent additional material disclosures. The Tribunal:

  • Issued a Substituted Decision Notice.
  • Allowed the appeal regarding information that was disclosed after the initial appeal was adjourned.
  • Found that the remainder of the withheld information was exempt under sections 35(1)(a) and 36(2)(b)(ii) for the stated reasons.
  • Required no further action from HM Treasury (the Second Respondent).


In the matter of Rosemary Smith v. The Information Commissioner & Anor, the Tribunal’s scrutiny of FOIA exemptions under sections 35(1)(a) and 36(2)(b)(ii) emphasized the delicate balance between transparency, accountability, and the need for confidential spaces in government policy formulation. The decision reinforces the principle that the application of FOIA exemptions is a fact-sensitive exercise, and the public interest test remains a crucial component in determining whether withheld information should be disclosed. Notably, the Tribunal’s role is to ensure that information is withheld lawfully, balancing the interest in public disclosure against the government’s need to protect its policy development processes.

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