Alistair Sloan v Information Commissioner & Anor
[2023] UKFTT 342 (GRC)
The Cabinet Office v The Information Commissioner
5 March 2024
[2024] UKUT 76 (AAC)
Upper Tribunal
An MP asked the government for polling data on the Union. The government said it was secret because it helped make policy. A lower court said the data wasn't secret. A higher court disagreed, saying the lower court didn't look at all the evidence and made a mistake. The case will be heard again by a different court.
Key Facts
- •Mr. Sheppard requested information from the Cabinet Office regarding polling on public perception of the Union.
- •The Cabinet Office refused the request under section 35(1)(a) of the Freedom of Information Act 2000 (FOIA), claiming the information related to the formulation of government policy.
- •The Information Commissioner upheld the refusal.
- •The First-tier Tribunal (FTT) allowed Mr. Sheppard's appeal, finding section 35(1)(a) FOIA was not engaged.
- •The Cabinet Office appealed to the Upper Tribunal (UT).
Legal Principles
Section 35(1)(a) FOIA: Information relating to the formulation or development of government policy is exempt.
Freedom of Information Act 2000
Section 2(2)(b) FOIA: If information is exempt under Part II, section 1(1)(b) (the right to have information communicated) does not apply if the public interest in maintaining the exemption outweighs the public interest in disclosure.
Freedom of Information Act 2000
The FTT has an inquisitorial function and must consider all relevant evidence.
Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 and case law cited in paragraphs 38 and 47
Even where a high-level government policy is settled, information can still relate to the formulation or development of sub-policies under that high-level policy and thus be covered by section 35(1)(a) FOIA.
Upper Tribunal Judgement
Outcomes
The Upper Tribunal allowed the Cabinet Office's appeal.
The First-tier Tribunal erred in law by failing to adequately consider all the evidence before it, particularly regarding the potential for the requested information to relate to the formulation or development of sub-policies within the overarching policy of maintaining the Union. The FTT's conclusion that section 35(1)(a) FOIA was not engaged was based on a material error of law.
The appeal is remitted to the First-tier Tribunal for redetermination.
A new FTT will re-hear the appeal, considering all the evidence and applying the correct legal principles, including the fact that section 35(1)(a) FOIA is engaged.