Department for Work and Pensions v Information Commissioner & Anor

The following is relevant to Appeal 1 where the issue is whether s22 FOIA applies. Thus on 14 November 2021, Mr Slater made three RFls as follows: -

DWP did not initially respond to Mr Slater’s RFls. On 14 December 2021, Mr Slater requested an internal review. On 17 January 2022, DWP responded as follows: -

On 6 June 2022, Mr Slater informed the Commissioner that, due to the passage of time, DWP no longer sought to rely on s.43 FOIA in relation to RFI2 [366]. On 8 June 2022, Mr Slater also confirmed that DWP had disclosed the information previously withheld on the basis of s.43 FOIA. As a result, RFI 2 is not in issue in this appeal.

Following Mr Slater’s complaint, the Commissioner carried out an investigation and issued a decision notice (DN1) on 28 September 2022. This reached the following conclusions: -

This is what the Commissioner said about the public interest issue in the 22 September 2022 decision notice in relation to s35 FOIA: -

In relation to the public interest arguments which related to s36(2)(b)(i) and (ii) FOIA and the contents of RFI1 and RFI3, the Commissioner noted that the ‘complainant’s public interest arguments set out in section 35 are also relevant to the public interest considerations here’ and so were not repeated. The Commissioner also noted that there were two opinions from a Qualified Person (which is necessary if s36(2) FOIA is to apply). One related to the material covered by RFI1 (for the purposes of s36(2)(b)(i) and (ii)) and the other related to the material in RFI3 (for the purposes of s36(2)(b)(i)and (ii), and s36(2)(c) FOIA). The Commissioner accepted in both cases that the Qualified Person’s opinion was reasonable and that the exemption in s36(2) FOIA was therefore engaged.

The relevant parts of the decision notice which relate to the public interest and s36(2) FOIA for the purposes of the information in RFI1 are as follows: -

The Commissioner did not take the same approach to a small amount of the material:-

This is not in dispute in this case. For the remaining information, the Commissioner considered that the public interest in maintaining the exemption does not outweigh the strong public interest in disclosure and required DWP to disclose the report and covering paper with the exception of the information set out in Part B of the confidential annex to DN1.

In relation to the public interest arguments and s36(2) FOIA for the purposes of RFI3, the Commissioner said:-

The Commissioner’s decision was that the balance of the public interest favours disclosure of the information withheld under section 36 FOIA, and the Commissioner required DWP to disclose the information withheld under section 36 FOIA which falls within the scope of RFI3.

The DWP appeal advances four grounds of appeal with respect to DN1, summarised here:-

On 11 November 2021, Mr Pring made a RFI to DWP, requesting Paper 7b. As such, Mr Pring’s RFI mirrors (in part) RFI1 in Appeal 1. As set out above, Paper 7b was withheld from publication in reliance on s.36(2)(b) FOIA.

On 7 December 2021, DWP wrote to Mr Pring maintaining the exemption contained in s.36(2)(b) FOIA and relying on s.40(2) FOIA. On 9 December 2021, Mr Pring requested an internal review. On 18 January 2022, DWP upheld its refusal following internal review. Following Mr Pring’s complaint, the Commissioner carried out an investigation a decision notice on 15 December 2022: DN2. For the same reasons as are set out in DN1, the Commissioner determined that s.36(2)(b) FOIA was engaged with respect to Paper 7b, but that the balance of the public interest fell in favour of disclosure, save for a small amount of information contained in the attached confidential annex to DN2 (not in dispute in this case). DN2 further notes at §54 that the information engaging s.40(2) FOIA falls within the information that the Commissioner considers can be withheld pursuant to s36 FOIA, therefore he did not need to consider the applicability of s.40(2) FOIA.

DWP’s grounds of appeal relating to DN2 mirror Ground 4 in Appeal 1 insofar as these relate to RFI1.

On 8 November 2021, Mr Stevens made a RFI to DWP requesting Paper 7a and Paper 7b. As such, Mr Stevens’s RFI mirrors RFI1 in Appeal 1. Paper 7a was heavily redacted and Paper 7b was withheld, both in reliance on s.36(2)(b) FOIA. On 7 December 2021, DWP wrote to Mr Stevens maintaining the exemption contained in s.36(2)(b) FOIA and relying on s.40(2) FOIA.

Following Mr Stevens’ complaint, the Commissioner carried out an investigation and issued a decision notice on 15 December 2022: DN3. For the same reasons as are set out in DN1 (and DN2), the Commissioner determined that s.36(2)(b) FOIA was engaged with respect to Paper 7a and Paper 7b, but that the balance of the public interest fell in favour of disclosure, save for a small amount of information contained in the attached confidential annex to DN (not in dispute in this case). DN3 further notes that the information engaging s.40(2) FOIA falls within the information that the Commissioner considers can be withheld pursuant to s.36(2)(b) FOIA and therefore he did not need to consider the applicability of s.40(2) FOIA.

DWP’s grounds of appeal against DN3 mirror Ground 4 in Appeal 1 insofar as these relate to RFI1.

As the Commissioner notes in submissions for the appeal hearing, while all three appeals need to be determined on their individual merits, (a) the RFIs in Appeal 2 and Appeal 3 were made at ‘materially the same time’ as the RFIs in Appeal 1; (b) the requested information in Appeal 2 and Appeal 3 overlap (to some extent) with the requested information in Appeal 1 (RFI1); (c) the decision and reasoning of the Commissioner in DN2 and DN3 is materially the same as the decision and reasoning adopted in DN1; and (d) the grounds of appeal in Appeal 2 and Appeal 3 mirror Ground 1 in Appeal 1.

Thus there are two broad issues to be determined in relation to the three appeals: -

There is a further issue to be resolved in relation to ground 2 of Appeal 1 which will be considered below when the main issues have been decided.

By virtue of s.2(1), the general duty to disclose information under s.1(1)(b) will not arise where the information is exempted under Part II of FOIA. Section 22 FOIA is one such exemption which may enable a public authority to refuse to provide information. Section 22(1) FOIA states as follows: -

Surprisingly, there is little case law which discusses when the exemption in s22 FOIA applies, and what there is can be found in FTT decisions which are not binding on us. Thus, a number of cases have said that s22 FOIA should be interpreted to mean that there must be an ‘intention’ to publish: Queen Mary University London v IC & Courtney (Decision of 22 May 2013, EA/2012/0229), Love v IC (Decision of 8 April 2014, EA/2014/0286), and Cross v IC & Cabinet Office (Decision of 14 August 2015, EA/2015/0320) (this last case referred to a ‘clear and settled’ intention). On this particular issue, the Commissioner’s guidance (at paras 5 and 9-11) states: -

Section 35 is intended to protect good governance and preserves a space for the government to consider policy options in private. Section 35(1)(a) FOIA states that:-

“(1)

Information held by a government department or by the Welsh Government is exempt information if it relates to—

(a)

the formulation or development of government policy.”

Section 35 is a class-based exemption and it does not matter whether harm will result from disclosure of the requested information (although the question of harm may be relevant to a consideration of the public interest).

Section 36 provides that:

Section 36 FOIA is a prejudice-based exemption, which is only applicable if disclosure would, or would be likely to, prejudice the effective conduct of public affairs in any of the ways specified in s.36(2).

In all three appeals (DN1, DN2 and DN3), the Commissioner found that s.35 and s.36 FOIA were engaged. DWP’s appeal is limited to the application of the public interest balancing test (grounds 3 and 4 in Appeal 1; Appeal 2; Appeal 3). The public interest test also applies if the DWP is correct and s22 FOIA applies as claimed.

The Tribunal should weigh the public interest in maintaining the exemption against the public interest in disclosing that information. Only if this weighing process favours maintenance of the applicable exemption(s) is the duty to communicate the requested information disapplied.

The Upper Tribunal in Montague v Information Commissioner and Department of International Trade [2022] UKUT 104 (AAC) has recently held that:

Mr Couling gave evidence to the Tribunal in both open and closed. He explained that he had implemented a disclosure system for UCPB papers so that documentation could be disclosed after two years, and there were two rounds of disclosure a year. His rationale for that was that by that time it was unlikely that FOIA exemptions under, for example, s35 or s36, would still apply and therefore there could be publication with few redactions. He accepted that even with that time lapse there would sometimes be the need for redactions, but they would be used sparingly.

Mr Couling accepted that the statistics in his statement which supported an argument that there was a low percentage of redacted words in these disclosures, was based on a ‘dip sample’ of the documents rather than a granular review of all the documents.

Mr Couling’s statement is dated March 2023. He explained at the time of his statement the next publication of documents would have been April 2023, but at the time of his statement decisions had not been made about possible exemptions to be applied to the documents. This decision was left to very shortly before disclosure. He confirmed that decisions had not been made about exemptions to be applied, if any, to the publication due to be made in October 2023. He had seen those documents and some redactions were possible. Mr Couling referred to paragraphs 47 and 48 of his statement in which he set out the publication strategy and his view that this was a sensible and efficient way to deal with the dissemination of information about UC:-

As a result of this strategy, he confirmed that when FOIA requests are received, although they would be looked at, the usual response would be to rely on s22 FOIA as in his experience a very large proportion of the documentation would be published even if FOIA exemptions would apply at the time of the requests.

Mr Couling referred to his statement at paragraph 22 which explained the working of the Prime Minister Information Unit (PMIU) and its work: -

In relation to the public interest issue, Mr Couling spoke at some length about the need for a safe space for discussions on the implementation of UC, especially in relation to documents which described a deep-dive into the process. These included paper 7b and selected parts of Paper 7a. He said this in his statement: -

Mr Couling said it was important that officials could be frank with him about the implementation of UC without thinking that their views might be represented in the media and themselves identified. He did not want his officials to be careful about what they said, they were there to provide frank advice and not to become part of what he called ‘the political waft’. He wanted staff to feel confident to be able to provide advice. Without this safe space a fortress mentality could develop.

There was a closed session in this case and the gist from that hearing is included at Annex A. In relation to Mr Couling’s evidence the gist records as follows: -

DWP’s arguments in relation to the application of the public interest test for the purposes of s35(1)(a) FOIA are set out in the skeleton argument for the appeal as amplified in oral submissions by Mr West. These arguments relate to the information within the 2021 Meeting Papers which is concerned with the Department’s ‘Move to UC’ strategy.

DWP argue that the Move to UC strategy was (as the Commissioner found in the decision notice) still under development at the time of the request. This is a sensitive process, as Mr Couling explained, because the migration of often vulnerable claimants requires very careful handling, both in terms of providing transitional protection and communication. Therefore, it is argued that there is a strong public interest in not constraining the Department’s ability to test a variety of options and gather evidence to support the adoption of the optimum approach to transfer customers to Universal Credit. A public debate about the detail of the process used to move the large numbers of vulnerable customers from legacy benefits to UC would constitute such a constraint. There is, additionally, a significant public interest in the strategy working effectively given that it impacts upon vulnerable people.

Further, there is currently a significant volume of information already in the public domain, much of it made available proactively by the Department, which contributes to public understanding and scrutiny of the ‘Move to UC’ strategy. As the 2021 Meeting Papers are concerned with operational – rather than policy – matters they are therefore of less significance in scrutinising a high-profile and controversial policy than the Commissioner assumed in paragraph 101 in the first decision notice (see above). In particular, it is said that the Commissioner was wrong to uncritically rely on the evidence produced by Mr Slater (paras 83-92 and 99, DN1 (see above)) which were of little relevance to the public interest in disclosure of the 2021 Meeting Papers.

Moreover, it is argued that the majority of this information can reasonably be expected to be published in any event, in accordance with the public strategy, which tends to reduce the strength of the public interest in favour of disclosure at this time.

In relation to the public interest test for the purpose of s36(2)(b)(i) and s36(2)(c) FOIA, DWP notes that this relates to the balance of the information within the 2021 Meeting Papers (to which section 35(1)(a) did not apply) and to Paper 7a and Paper 7b.

In relation to the 2021 Meeting Papers, the DWP submitted that the Commissioner reached the wrong outcome on his application of the public interest test given the high-profile of Universal Credit, it was reasonable for the Department to argue that there was a likely risk of information and advice provided to the UCPB being sanitised, to the detriment of the UCPB’s ability to monitor the delivery of Universal Credit. For instance, the Department highlighted – and the Commissioner appeared to accept (paragraph 154, DN1) – the potential for “optimism bias” which could mean that an inaccurate portrayal of project progress was presented.

Further, the disclosure of detailed metrics, such as those contained in the “Programme Dashboards”, would not provide useful insight into the delivery of Universal Credit. As Mr Couling explained in his evidence, there would be a significant risk of misreporting – and therefore public misunderstanding of – the content of these internal documents.

In relation to Paper 7a and Paper 7b, DWP again submitted that the Commissioner reached the wrong outcome on his application of the public interest test as “deep dive” reports issued by the PMIU were not routinely put into the public domain and therefore releasing this type of report, or information about its content, would be likely to have a chilling effect on the willingness of operational arms of government to flag issues and proactively raise situations in which they are unable to deliver.

It is said that there was and would be a chilling effect on the reporting of delivery issues which would limit the government’s ability to address those issues. DWP argued that the free and frank exchange of views from those on the front line of delivery, as well as policy and delivery teams, is essential to the deep dive process. A commitment to confidentiality is central to ensuring the effectiveness of the review process and to identifying the root cause of delivery issues. By their nature, deep dives concern complex projects with delivery challenges that are a high priority for the Government. Therefore, this context in particular requires a safe space for candid discussions internally.

After considering oral and written evidence, the position of the Commissioner is largely to support the position set out in DN1 and to wholly support the position in DN2 and DN3.

However, after hearing the evidence, the Commissioner considered his position and produced a further closed note in which he confirmed that for two documents falling within RFI3 and covered by DN1, he now accepted that they should indeed be withheld applying the public interest test consequent on finding that s36 FOIA applied. These documents are considered further in the Closed Annex to this decision.

Mr Slater made written submissions which supported the upholding of the decision in his case (DN1) and the arguments made by the Commissioner.

It seems to us that that the key words in s22 FOIA which give rise to a difference of approach between the parties are the words ‘with a view to its publication’. On the one hand the Commissioner argues that when seen in the context of s22(1)(a) FOIA as a whole, these words essentially mean there must be a fixed intention that the actual information requested will be published at some point in the future, whereas the DWP argues that the words amount to more of an aspiration which fits in with its publication policy: it is hoped and expected that by the time of publication, there will be no need to apply any exemptions to the information (or the vast majority of it) even if at the time of the request those exemptions might be applicable.

We have been referred to a number of first-tier tribunal decisions which have interpreted the words in s22(1)(a) (and (b)) as meaning that there must be an ‘intention’ or a ‘clear and settled intention to publish the information (at the time of the request).

DWP point out that the Cambridge Dictionary defines this idiom (‘with a view to’) as meaning ‘with the aim of doing something’. The Oxford English Dictionary provides a similar definition: ‘With the aim or object of; with the intention to’. DWP state that therefore, applying the ordinary meaning of this statutory phrase, it requires that the authority is aiming to, or intends to, publish the requested information, and that any requirement for a ‘settled’ intention is a gloss on both the statutory language and ordinary meaning of “with a view to”.

It seems to us that we do not need to engage in a debate as to whether ‘with a view to’ means more or less than an actual (or settled) intention to publish.

The ‘information’ referred to in s22(1)(a) and (b) FOIA must, in context, be the information requested for disclosure (for example, paper 7a or 7b). It is that information which must be ‘held’ with a view to ‘its’ publication, and it is that information which must be ‘already held with a view to such publication’ at the time of the request.

In his witness statement and in his oral evidence, Mr Couling candidly accepted that it was not until close to the date of actual publication that it was possible to say whether and what exemptions would be applied to the information before publication occurred. Thus, in a publication scheme such as that of the DWP (where a period of about two years is expected to elapse before publication) it would not be until towards the end of that two year period that an actual decision on publication would be made. In his witness statement at paragraph 48 (see above) and in evidence, Mr Couling explained the various stages which were applied before a publication decision was made. As well as a review and discussion with senior civil servants, the process also includes ‘submission to minister to approve publication and clearance through Senior Civil Servants’.

Taking the process as a whole, we do not see how it can be said that, at the time of the request, the information is held ‘with a view to its publication’ because it simply cannot be said at that time whether the information will be published or not – the stage has not been reached where it can be said that publication is ‘intended’ or even ‘expected’ or that there is an ‘aim’ to publish. That stage and the decision on publication will come much further down the line and close to the date of publication.

In essence, we accept the Commissioner’s submissions on this issue, and that as a matter of statutory interpretation there is no room to imply a further caveat into s22 FOIA (there are already caveats as to the identity of the publisher and time of publication), which means the information is held with a view to its publication ‘unless a further exemption under FOIA applies’.

Section 22(1)(b) FOIA provides an additional hurdle for DWP. Not only must the information be held with a view to its publication, this must also have been the case at the time of the request. It seems to us that the intention behind s22(1)(b) FOIA is to prevent a public authority making a decision that information is to be published at some point in the future after a request has been received, such that responding to the request is effectively artificially postponed.

The fact that DWP already had a publication scheme at the time of the request means that s22(1)(b) FOIA is less relevant in the present case. But, contrary to the argument of the DWP, simply because there is a publication strategy in place at the time of the request, does not necessarily mean that the requirements in s22(1)(a) FOIA are met, if that scheme is so vague (as we have found) as to make it impossible to say that the information requested is held ‘with a view to its publication’.

DWP should be applauded for having a publication scheme and recognising the importance of transparency and accountability in doing so. However, the current publication scheme, in our view, where actual decisions might be taken about publication months or years after a request is made, does not meet the requirements for s22 FOIA to apply.

As the Tribunal has found that s22 FOIA does not apply to the withheld information, we have not gone on to consider whether the public interest favours or disfavours disclosure for the purposes of that section.

As a recap, in what is described above as RFI3 Mr Slater requested UCPB papers ‘covering the period 01 January 2021 to 31 August 2021’. At the time of RFI3, these papers had not yet been deposited in the House of Commons Library (although some of the relevant papers were made public on 20 April 2023). Ground 3 of DFW’s appeal is that the Commissioner unlawfully applied the public interest balancing test with regard to s.35(1)(a) insofar as RFI3 is concerned, and we have set out the detailed arguments for this above (and also see the excerpts from DN1 set out above). It is accepted that the exemption in s35(1)(a) FOIA applies to this material and therefore, unless the public interest favours disclosure, the information is exempt information because it relates to ‘the formulation or development of government policy’.

DWP’s case as set out above is that disclosure of the sensitive ‘Move to UC’ strategy while it was still under development (at the time of the request), would lead to a public debate which would constrain the testing of options and the gathering of evidence and may have an adverse effect on the vulnerable people the strategy was meant to serve. DWP argues that the material withheld dealt mostly with operational matters and a lot of material is already in the public domain. DWP say that the Commissioner was wrong to put so much weight on the evidence from Mr Slater in paragraphs 83-92 and 99 of DN1, as this evidence has little impact on what has been withheld and the benefit in disclosure. Most of the information will be published in due course in any event.

Like the Commissioner, we accept that significant weight should be given to the approach that the government needs a safe space to develop ideas, debate live issues and reach decisions away from external interference and distraction – where the policy making is live and the requested information relates to that policy making, and this must be the case in relation to a large scale project such as the implantation of UC. However, we also accept that there is considerable weight in the public knowing about the activities of DWP and UC, and there has been considerable interest and trenchant criticism (as set out in DN1) as to how UC has been implemented. Although Mr Couling criticises the reliance of the Commissioner on this material, and the failure as he says to recognise positive coverage of the policy, in our view the material relied upon by the Commissioner does underline just how important it is to the public that DWP has disclosed the fullest information possible under the auspices of FOIA, for the debate to be as best informed as it can be.

As the Commissioner says, DWP recognised (as it was bound to do) that transparency in policy leads to greater public understanding of the process and informs the public debate. It is in the public interest that development of the ‘Move to Universal Credit’ policy includes detailed consideration of the challenging task of moving legacy benefit customers over to Universal Credit in the most effective and customer friendly way and that the Universal Credit Programme demonstrates that a variety of potential policies have been explored.

Ultimately, as the move to UC (and the benefit payments involved) is about such a large amount of public money, and of importance to 6.5 million households (and many vulnerable people), the Tribunal agrees with the Commissioner that for the public interest in withholding the information to prevail the strongest justification is necessary. As Mr Couling says in his witness statement ‘20% of working-age individuals will receive Universal Credit by the time the Move to UC process has concluded’. We note all the points raised by the DWP and we are sure that it has a strong preference, for good reasons, for the material not to be disclosed. But we agree with the Commissioner that the public ‘is entitled to be well informed as to the reasoning behind policy decisions which are likely to shape British society. Disclosure of this information would allow the public insight into the decision-making process and an understanding of the decisions made and challenges overcome’.

By way of recap in RF1 Mr Slater requested unredacted copies of two papers which had been included in the agenda of the UCPB meeting on 22 October 2019. These were a paper entitled ‘How Effective is Support’ (Paper 7a); and a report of the Prime Minister’s Implementation Unit (PMIU) titled ‘How effective is support for vulnerable Universal Credit claimants’ (Paper 7b). Mr Couling describes Paper 7b as a ‘deep dive’ to better understand the claimant experience ‘with a focus on vulnerable groups’ ..

Paper 7a and Paper 7b fell within the batch of UCPB papers deposited in the House of Commons Library on 28 October 2021. However, as described by Mr Couling ‘the majority of the ‘summary' section of Paper 7a was redacted under section 36 of FOIA. The entirety of Paper 7b was withheld under the same section’.

As already described in RFI3 Mr Slater requested UCPB papers ‘covering the period 01 January 2021 to 31 August 2021’ which had not already been deposited in the House of Commons Library. In relation to the public interest test for the purpose of s36(2)(b)(i)(ii) and s36(2)(c) FOIA, DWP notes that this relates to the balance of the information within the 2021 Meeting Papers (to which section 35(1)(a) did not apply)

The Commissioner accepted that s.36(2)(b)(i) and s.36(2)(b)(ii) FOIA were engaged with regard to RFI1 and RFI3. The Commissioner further accepted that s.36(2)(c) FOIA was engaged in respect of RFI3. Therefore, unless the public interest favours disclosure, the information requested in RFI1 and RFI3 is exempt information because in the reasonable opinion of a qualified person, disclosure of the information under this would, or would be likely to, inhibit (i) the free and frank provision of advice, or (ii) the free and frank exchange of views for the purposes of deliberation; or would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs (RFI3 only).

In relation to the 2021 Meeting Papers, the DWP argued that given the high-level profile of Universal Credit, there was a likely risk of information and advice provided by officials to the UCPB being sanitised, if it was thought that the information would or could be disclosed under FOIA, and the Commissioner was wrong to find otherwise. DWP was of the view that the disclosure of detailed metrics, such as those contained in the ‘Programme Dashboards’, would not provide useful insight into the delivery of Universal Credit, and there would be a significant risk of misreporting – and therefore public misunderstanding of – the content of these internal documents.

DWP recognised that transparency in the way in which government operates, and increased accountability of Ministers and public officials, increases public trust in the governmental processes. In particular, there is a public interest in understanding the effectiveness with which government works and the successful delivery of key projects and programmes to time, scope and budget. DWP recognised a public interest in the governance of major government programmes being transparent. We note that the information withheld under section 36 FOIA in RFI3 provides a much greater and up-to-date insight than the information already available about the UC programme. There are strong arguments for transparency and accountability for a programme which may affect millions of UK citizens and process billions of pounds. The minutes and reports go beyond what is already available in the public domain and provide useful information about the UC programme, which allows for greater transparency into the workings of the programme and greater understanding of the difficulties that are encountered.

In relation to Paper 7a and Paper 7b, DWP said that ‘deep dive’ reports issued by the PMIU were not routinely put into the public domain and therefore releasing this type of report, or information about its content, would be likely to have a chilling effect on the willingness of operational arms of government to flag issues and proactively raise situations in which they are unable to deliver. The free and frank exchange of views from those on the front line of delivery, as well as policy and delivery teams, is essential to the deep dive process. A commitment to confidentiality is central to ensuring the effectiveness of the review process and to identifying the root cause of delivery issues.

The Tribunal recognises the strength of these arguments, and also the view of the Qualified Person(s) in relation to the section 36 FOIA exemption (we accept, as did the Commissioner that both opinions were reasonable), which must be given weight in the process of considering the public interest for and against disclosure.

Many of the same arguments which we have expressed in relation to the strength of the public interest in disclosure in relation to s35 FOIA also apply here.

In relation to the ‘chilling effect’ arguments, we understand the fears that civil servants may be reluctant to provide full and robust advice if it is thought that this may be disclosed under FOIA. Civil servants and other public officials should not be easily deterred from expressing their views by the possibility of future disclosure. In any event, there can never be a guarantee that the public interest in disclosure will not outweigh these concerns in particular cases, and in our view, for the reasons set out in relation to the public interest and s35, FOIA, this is one of those cases. As the Commissioner says, there is a strong public interest in disclosing these findings and recommendations to allow scrutiny of the quality of the research and report and whether, two years following the report, any progress on the recommendations had been made. The same applies to the material covered by RFI3, even if that material was more recently produced.

In line with the Commissioner, we do not accept DWP’s argument that disclosure of dashboard metrics could be used to misrepresent the progress of the UC Programme. The Commissioner notes that he does not accept arguments that information may be misunderstood or misinterpreted by the public. DWP would have the opportunity at the point of disclosure to put the withheld information into context.

We have seen the withheld material in RFI1 and RFI3. We agree with the Commissioner that a significant proportion of it includes fairly high level recommendations, overall findings and factual statements which are not attributable to any individual. It does not seem to us likely that disclosure of this information would cause officials to provide lower quality advice in future.

We agree with the Commissioner ‘that a small amount of the withheld information would be likely to cause a chilling effect as it names individuals, directly quotes contributors and gives case studies related to specific job centres’. This information is set out in Part B of the confidential annex to DN1, and we agree that the public interest in preventing this prejudice is sufficient to outweigh the strong public interest in disclosure.

Ground 2 in Appeal 1 relates to s.31(1)(a) FOIA. DWP argues that paragraph 59 of DN1 is ‘based on an incorrect premise’. ln his Response, the Commissioner has conceded that he erred due to a misunderstanding relating to the colour coding used in the disputed information: see paragraph 34]. Therefore, the Commissioner has invited the Tribunal to substitute DN1 to the following limited extent: striking out the whole of paragraphs 56 and 58 and the first 15 words of paragraph 61. We agree with this submission and the passages to be struck out are as follows:-

The Tribunal also accepts the Commissioner’s view, formulated after the hearing the evidence that in relation to two documents covered in RFI3, and referred to in the CLOSED annex to this decision, the public interest (considered for the purpose of s36 FOIA is in fact in favour of non-dislcosure, and these documents can be excluded from the information disclosed by DWP.

Thus, to the extent only as explained above the appeal against DN1 is upheld.

As set out above the issues in DN2 and DN3 and the appeals in those cases, overlap with the decisions made in DN1 in relation to RFI3. The Tribunal applies the reasoning set out above in relation to RFI3 (which is to uphold the decisions made by the Commissioner in relation to disclosure) and the appeals in these cases are dismissed.

To the extent discussed above, this appeal is allowed in relation to DN1. A substituted decision notice is issued. The contents of the original decision notice will stand, save that, as described above, the whole of paragraphs 56 and 58 and the first 15 words of paragraph 61 will be struck out. In addition, as explained in the closed annex to this decision, the public interest is in favour of not disclosing the two documents referred to therein.

No substituted decision notice is issued in relation to DN2 and DN3, and the appeal in each of those cases is dismissed.