Melanie Newman v The Information Commissioner & Anor.

The Commissioner asserts that para 6.v of the amended Grounds of Appeal is the sole independent ground of appeal under Ground 1, namely that the Commissioner failed to consider, or to consider whether the QP had had regard to, the inherent weakness of the “chilling effect’ argument referred to by the Upper Tribunal in Davies v Information Commissioner [2019] 1 WLR 6641.

The Commissioner submits that the effect of Davies is overstated. The Commissioner recognises that when considering chilling effect arguments, a reasoned and evidence-based case needs to be made to support the conclusion that a chilling effect would occur and what its effect would be. However chilling effect arguments should not be discounted unduly because s 36(2)(b)(ii) calls for consideration of the risk of inhibition as part of the public interest considerations.

The Commissioner properly considered the inhibiting effect of disclosure, rather than the content of the requested information itself. The Commissioner did not assume a chilling effect necessarily arose - she considered the chilling effect on the facts. At para 31 of the Decision Notice she stated that whether it is reasonable to think that a chilling effect would occur will depend on the circumstances in each case including the timing of the request, whether the issue is still live and the actual content and sensitivity of the information in question. The Commissioner gave due consideration as to why the withheld information was sensitive, noting at the time of the request that the Pack had not yet been withdrawn and that litigation was ongoing.

Any inadequacy in reasons can be cured by the tribunal considering the application of s 36(2)(b)(ii) afresh. The six examples given under Ground 2 lack merit in any event.

The Commissioner’s consideration of the public interest test was lawful in the circumstances. The Commissioner properly accepted the CPS’ submissions that the effects of disclosure of either strand of the request would have the relevant effect.

The CPS and the Commissioner correctly applied s 36(2)(b)(ii). The QP’s opinion reasonably and rationally recognised that the disclosure of the disputed information would be likely to lead to prejudice. There is a real public interest in maintaining the exemption given that the prejudice goes to a key function of the CPS, namely the development of guidance, including with external stakeholders.

The grounds of appeal proceed on three false premises:

The opinion of the QP satisfies the threshold test of rationality. The disputed information and the relevant arguments were placed before the DPP. These documents, together with the DPP’s own knowledge and experience, were relied on in reaching the section 36 opinion. The DPP reviewed his opinion at the internal review stage, and specifically took into account the concerns raised by the appellant.

There was no need for the DPP to consider the impact of disclosure of the two strands of the request. Davies does not reflect an inherent weakness in the chilling effect argument, it reflects a common sense proposition that the assertions of a chilling effect are to be treated with caution and be properly tested by the decision-maker.

The CPS accepts the public has an interest in understanding policy development, and the role of external stakeholders in policy development. That interest will be higher on issues of significant public concern. The CPS does not dispute that the issue of the nature of the guidance provided to schools around bullying, and hate crimes, and in particular how that guidance should address LGBT+ rights, is an issue of significant public concern.

There is a strong interest in maintaining the exemption:

In the event that the primary argument on s 36 is not accepted the CPS relies on s 40(2) in relation to any personal data.

We have read and taken account of an open and a closed bundle of documents. We read an open and two closed witness statements and heard evidence from Graham Ritchie, Deputy Director in the Strategy and Policy Directorate (SPD) of the CPS. We took account of one further closed witness statement which explains the nature of any redactions and the circumstances in which the latest opinion of the QP was sought.

We have taken account of all the evidence in the witness statements and given orally.

The tribunal heard part of the evidence and submissions in closed on the basis that it was necessary to avoid defeating the purpose of the proceedings. The following gist of the closed session was prepared by the CPS and agreed with the tribunal:

Section 36(2)(b)(ii) provides:

A ‘qualified person’ for the purposes of this appeal is defined in s 36(5)(o) as any officer or employee of the public authority who is authorised for the purposes of this section by a Minister of the Crown. In this appeal it is the DPP.

The tribunal’s role is to decide whether the opinion is substantively reasonable rather than to decide for itself whether the asserted prejudice is likely to occur.

In IC v Malnick and ACOBA [2018]AACR 29 the Upper Tribunal said:

In considering whether a qualified person’s opinion that there would, in essence, be a ‘chilling effect’ is substantively reasonable, the tribunal is assisted by the following paragraphs from the Upper Tribunal decision in Davies v IC and The Cabinet Office [2019] UKUT 185 (AAC):

S 36 is a qualified exemption, so that the public interest test has to be applied. In weighing the public interest the opinion of the QP gives weight to the arguments for withholding the information, but the tribunal can consider the severity, extent and frequency of the prejudice or inhibition.

The tribunal’s remit is governed by s.58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether she should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner, and may make different findings of fact from the Commissioner.

The Appellant submits that the question of how a radically flawed schools pack came to be published by the CPS is a matter of urgent and legitimate concern. The organisations consulted were limited to a group of like-minded organisations who all took closely aligned approaches. Dissenting voices were excluded from the consultation process, whether deliberately or through ignorance.

There is nothing in the submissions to the DPP which show that his mind had been properly directed to the question that he is required to address. He agrees to withhold, but does not address his mind to the statutory threshold question or give his opinion that the threshold question is satisfied. He recommends that the balance of public interest favours disclosure, which is a different question.

There was no material before the DPP capable of founding a reasonable opinion that disclosure would be likely to inhibit the free and frank exchange of views for the purposes of deliberation, either in relation to external or internal communications.

The evidence in Mr. Ritchie’s witness statement amounts to no more than an assertion that the CPS should be able to engage with stakeholders in private, or that the CPS should be exempt from FOIA by its nature. The schools pack was published in January 2020. The need for a safe space would have long since expired by the time the request was made.

Mr. Ritchie’s evidence on the issue being live amounted to no more than that the stakeholders were still upset and the fact that the debate was sensitive, with both sides feeling very strongly, and was attracting a lot of public and press interest. The debate has become toxic and heated, but it is unclear why this should mean that the CPS must be allowed to consult with one side without scrutiny from the other.

As in Davies the basis of the likely chilling effect is no more than a statement that disclosure was likely to have that effect devoid of any reasoning why. Any chilling effect is simply the effect the existence of FOIA could be expected to cause, and should be very minor because of the expectations that civil servants will act with professionalism, courage and independence. External groups, if they are worth consulting, should be equally robust. There should have been separate consideration by the QP of whether there was likely to be an effect on internal and external discussions.

The tribunal was asked to consider:

The appellant relied on a number of first tier tribunal decisions as instructive as to the kinds of circumstances that justified withholding information in the public interest.

Immediacy is needed in relation to a safe space for the incubation of policy. It does not provide permanent long term safety from any kind of scrutiny. The timing of the decision is crucial. By the time of the decision the schools pack had been permanently withdrawn.

It is understandable that the CPS is reluctant to have details of its engagement with a restricted set of stakeholders scrutinised. People will be critical of that process but that is a healthy state of affairs.

The only ‘sensitivity’ of this issue is that people feel strongly about it. That is not what sensitive means for the purposes of the public interest in withholding information.

The result of the consultation process was a document riddled with serious flaws which had to be withdrawn at the first intimation of judicial review proceedings. If a more open consultation had been conducted with a wider group of stakeholders, those flaws might have been identified at an earlier stage. The deficiencies of the pack provide powerful evidence that the public interest would be better served by openness.

The Commissioner made two points about para 31.3 of the CPS’ amended response as follows. First, in Davies, the Upper Tribunal did not reject the ‘inherent weakness’ observation of Charles J in Lewis, rather the Upper Tribunal clarified that it carried less weight in the face of ‘appropriately detailed identification, proof, explanation and examination of the likely harm or prejudice’. Second, the Commissioner clarified that the Commissioner does not have to repeat the substance of the QP’s inquiry under s 36(ii).

The submission to the QP squarely set out the statutory test and it would have been obvious to the DPP what he was being required to address. Alternatively, if the submissions are read pragmatically and as a whole there can be no real doubt that the QP was of the opinion that the free and frank exchange of views for the purposes of deliberation was likely to be inhibited.

The Appellant’s submissions on the QP’s opinion suffer from the same flaw as the FTT’s decision overturned by the Upper Tribunal in Malnick. The correct outcome should not be vitiated by a technical error (see para 51-56 of Malnick). If it was reasonable to conclude that prejudice was likely to arise from disclosure, it would be wrong if disclosure was to follow from a flaw in the approach of the QP or the way in which the question was put to him. The tribunal is engaging in a full merits review and is likely to have more evidence before it than was before the QP, but it is the substance of the opinion that is being assessed, so the reasonableness of the opinion is tested against the evidence before the tribunal.

Although it is an error for the tribunal to require the QP to evaluate more than is required for the threshold test, it is not an error for the QP to go on to consider the public interest. This is anticipated by the Commissioner’s guidance.

The QP is aware of the context in which CPS are working and he is aware of the sensitivities engaged. He had seen the underlying material and had had the ‘inherent weakness’ point specifically drawn to his attention.

Both chilling effect and safe space arguments can apply to external and internal communications.

The following factors were said to be relevant to both the reasonableness of the opinion and to the public interest balance.

The policy was still relatively live in October 2020:

In terms of the content of the information, two aspects of CPS policy are engaged. First the sensitive policy decision around the withdrawal of the schools pack and secondly consulting with stakeholders about the development of the pack. The chilling effect is not just the effect on a generic free space for ideas and open and honest policy discussion. It is the freedom to have an open and honest discussion with stakeholder groups in order to fully understand their positions in this particular case and on these particular facts and at this particular stage in the process. This was in the early stage of the processes where there is a need for an open and honest atmosphere when information was being gathered which could be tested later. If this was disclosed there would be risk that next time a less open approach might be taken at the information gathering stage.

The respondent is not advancing the argument that the CPS would always be entitled to a safe space when engaging with stakeholders.

The subject remains a topical and sensitive one. It is relatively easy to see how disclosure would inhibit CPS staff in their deliberations and their ability to express themselves honestly and openly when asking questions about this particular topic and putting forward their views when those views, if made public, might be treated as definitive positions.

There are particular difficulties about communication and transgender issues given the polarised debate. The norms for the public debate are developing. The CPS wants to advance policies that promote its role as an effective and independent prosecutor. Disclosure of these communications could lead to the CPS being required to engage in a substantive debate and criticised for conduct which is not at the core of their policy making.

Mr. Ritchie explained how this extended to other highly sensitive issues including hate crime and violence against women and girls.

The public interest in disclosure is relatively minimal. There is a public interest in transparency and accountability. A number of the factors relied on by the Appellant do not point in favour of disclosure:

The QP gave his opinion on 3 occasions:

It is extremely unfortunate and surprising in an organisation such as the CPS, that the submissions do not explicitly direct the DPP to answer the required statutory threshold question. The submission asks the DPP to ‘approve the withholding of the material’ and explicitly highlights the public interest factors that have been taken into account.

The requirement under s 30(1)(ii)(b) is for an opinion by the QP on whether or not the section is engaged. The QP is not required to give an opinion on whether or not the information should be withheld or whether the public interest favours disclosure. Either the person drafting the submission was unaware of this, or the submission was badly drafted.

It is not our role to consider the process by which the opinion is reached. As the Upper Tribunal highlighted in Malnick, at paras 54 and 55:

Having made these observations, we turn to the question of whether we have before us evidence which allows us to conclude that the opinion of the QP was that disclosure of the information would or would be likely to prejudice the free and frank exchange of views for the purposes of deliberation.

The QP adopted the reasoning in the submission dated 15 September 2020. He agreed ‘to withhold, pursuant to s36(2)(b)(ii), ‘for the reasons given’. Those reasons included the following at para 15:

In our view, the QP’s conclusion that the information should be withheld ‘for the reasons given’ implicitly rests on the QP having formed the opinion that there was likely to be inhibition as set out para 15. We do not accept that there is a requirement that the opinion be expressed in a particular way, for the reasons given in Malnick.

For similar reasons, we do not accept that the fact that the QP was asked to and did express an opinion on the public interest balance vitiates the QP’s opinion. It is clear from Malnick that our role is to assess the substantive reasonableness of the opinion, not the process by which that opinion was reached.

We then move on to the substantive reasonableness of that opinion.

In determining if the opinion is substantively reasonable, in our view we are entitled to take account of all the evidence before us today even if that was not before the DPP when he formed his opinion. This follows from the Upper Tribunal decision in Malnick.

If that were not the case, if the opinion was not reasonable because some of the evidence before the tribunal was not before the QP, the result would be that information would have to be disclosed even though the opinion appeared to be correct in substance and where the consequences of disclosure would be very serious prejudice within section 36(2) and where there was no sufficient countervailing public interest in disclosure.

In any event, in addition to the submissions the QP reviewed the withheld information and, as the DPP, would be likely to have had personal knowledge of the matters highlighted to us in evidence in the tribunal hearing such as sensitivity and timing.

We find that the opinion of the QP that disclosure of the requested information would be likely to inhibit the free and frank exchange of views for the purposes of deliberation was reasonable for the following reasons.

When considering the QP’s opinion we take into account the fact that he is well-placed to make the assessment and we take account of his level of seniority.

In assessing the substantive reasonableness of the opinion, we bear in mind that a degree of circumspection about reliance on a ‘chilling effect’ is justified where there is simply an assertion that that is what will occur. We bear in mind that civil servants can be expected to act with courage and independence.

This does not mean that the threshold can never be discharged (particularly given the low degree of likelihood required), nor that it cannot properly be discharged on the basis of evidence setting out the basis of the view that such a chilling effect will occur (see para 138 DfT v ICO and Alexander [2021] UKUT 327 (AAC)).

Further we note that the purpose of s 36(2)(b)(ii) is to protect the free and frank exchange of views for the purpose of deliberations. It is intended to avoid a ‘chilling effect’ on that free and frank exchange of views.

The response to the request was given in October 2020. At that stage the decision had been taken, definitively and permanently, to withdraw the schools pack. There was no intention to produce an amended version. Accordingly there was no ongoing risk of inhibition on deliberations regarding (i) whether or not to take the decision to withdraw the schools pack or (ii) the content of any future version of the schools pack.

However, a number of matters remained live in October 2020. Discussions were ongoing as to how the CPS should manage stakeholder relations in the light of the withdrawal of the schools pack. The CPS were holding discussions with stakeholders about the decision to withdraw. The DPP email of 25 September 2020 also notes that judicial review proceedings had been commenced ‘earlier that week’.

The CPS had an ongoing role in relation to policy development in this area. The CPS still had to address the underlying issues. It still had to work with local communities and third party sectors to develop its approach to supporting victims and tackling hate crime.

This topic is particularly sensitive in a number of ways. The norms are constantly changing. The goalposts of acceptability shift very rapidly. Language is sensitive, contested and constantly evolving:

The discussions with stakeholders took place at an early, information gathering stage in the process of developing policy and developing the schools pack. It is important that the CPS and stakeholders are able to engage in open and candid discussions at this early stage in the process of deliberations.

Where topics are controversial and polarised and where, in particular, norms and the use of language is sensitive, contested and constantly evolving, it is not simply a lack of courage or independence on the part of the individual civil servant or on the part of the stakeholders which might inhibit free and frank exchanges of views.

It is important to have a safe space to explore ideas and gather information on stakeholder views in these very controversial areas without having to focus on what terms, approaches or definitions might be deemed acceptable in the future at the point at which those emails became publicly available; on what the consequences might be on the public perception of the CPS which has responsibilities in relation to hate crime and sexual offences, or on the public perception of a stakeholder organisation which has a particular cohort of which it needs to maintain the confidence.

Having considered the withheld material, we find that its disclosure would be likely to cause a chilling effect irrespective of the specific content of any particular email because of the broad nature of the information: the exploration of ideas and the gathering of information on stakeholder views in a very controversial area. Further we have taken account of some specific content which we find illustrates the sensitive nature of these emails in general, as highlighted in closed by Ms Thelen.

Mr. Ritchie gave a small number of other examples in closed where a topic was regarded particularly sensitive and controversial, but where it is vital for the CPS to understand particular stakeholders’ views at this information gathering stage. It was not suggested that all engagement with stakeholders on any issue would engage the exemption.

Slightly different considerations apply to the information requested in part (c) of the request, because it does not form part of the ‘information gathering’ from stakeholders requested in part (a), and therefore slightly different safe space considerations apply.

The issues in relation to sensitivity, changing norms, the importance of terminology and the rapidly shifting goalposts of acceptability also apply to internal discussions amongst senior CPS management relating to the legal threat and subsequent publicity. Further we have accept the specific evidence given by Mr. Ritchie in para 19 of his closed witness statement and we have taken account of the content of the withheld information. The internal discussions relate to matters that were still ‘live’ in the sense set out above.

In summary, we accept that Mr. Ritchie has clearly explained on the particular facts of this case the basis for the ‘chilling effect’ and the continuing need for a safe space in October 2020 in relation to both types of information requested.

In the circumstances we find that the opinion of the QP that disclosure of the requested information would be likely to inhibit the free and frank exchange of views for the purposes of deliberation was reasonable. We find that the section is engaged.

In considering the public interest balance, we have given due weight to the opinion of the DPP. Further, having heard the evidence of Mr. Ritchie we find that there is a clear risk that the free and frank exchange of views would be inhibited by the disclosure of the information requested in either part (a) or part (c) of the request in an area where it is particularly important that the CPS can freely exchange views either internally or with external stakeholders.

Taking into account all the matters set out above, we find that the issue was, at least to some extent still live, in October 2020 and that this inhibition was likely to impact on the important and ongoing work that the CPS has in the area of hate crime.

We think there is a strong public interest in avoiding this.

In terms of the public interest in disclosure of this information, we accept that there is an increased public interest in transparency in general surrounding the deliberations which led up to the publication of the school pack, the decision to withdraw and the fallout from that decision. We have reached this conclusion in the light of: