Appeal Number: EA/2023/0031Decision given on: 25 April 2024
Information Rights
Between:
DEPARTMENT FOR WORK AND PENSIONS
Appellant
and
THE INFORMATION COMMISSIONER
Respondent
Date of Hearing: 12 September 2023 & deliberations 2 January 2024.
.
Panel: Brian Kennedy KC, Marion Saunders and Pieter de Waal.
Hearing Type: Remote hearing using HMCTS Cloud Video Platform
Representation:
For the Appellant: Robert Cohen of Counsel.
For the Respondent: Harry Gillow of Counsel.
Result: The appeal is dismissed.
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Date of Decision: 2 January 2024.
REASONS
Introduction:
[1] This decision relates to an appeal brought under section 57 of the Freedom ofInformation Act 2000 (“the FOIA”). The appeal is against the decision of theInformation Commissioner (“the Commissioner”) contained in a Decision Notice(“DN”) dated 16 December 2022 (reference IC-135964-Y7V0), which is a matter ofpublic record.
Factual background and issues:
[2] Full details of the background to this appeal are set out in the DN. The appealrelates to a request made to the Department for Work and Pensions (“DWP”) on12 September 2021 for the following information:
“Full copies of all internal modelling, presentations, briefing materials and
impact assessments relating to the end of the £20 per week universal credit uplift”.
[3] The background to the Universal Credit uplift during the Covid-19 pandemic(taken from the House of Lords article “Universal credit: an end to the uplift”published on 3 September 2021) is set out in the DN. In brief, on 20 March 2020 thethen Chancellor of the Exchequer announced that the standard allowances ofUniversal Credit and the basic element of Working Tax Credit would be increasedby £1,000 a year (or £20 a week). He said that this uplift was designed to“strengthen the safety net” during the Covid-19 pandemic and was part of a widersupport package for household finances. The uplift was initially intended to last12 months and was due to expire in April 2021. However, at the March 2021 budgetthe Government announced that it would be extended for a further six months. In
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July 2021 the Government confirmed that it would withdraw the uplift at the endof September 2021.
[4] The request was refused by the DWP on 23 September 2021 in reliance on the
exemptions at Sections 36(2)(b) and (c) of FOIA, which provide:
Information to which this section applies is exempt information if, in the reasonable opinionof a qualified person, disclosure of the information under this Act… (b) would, or would belikely to, inhibit i)the free and frank provision of advice, or (ii)the free and frank exchangeof views for the purposes of deliberation, or (c) would otherwise prejudice, or would be likelyotherwise to prejudice, the effective conduct of public affairs.
[5] These exemptions are subject to the public interest test under Section 2(2) of FOIA,which means that the right of access to information does not apply to informationwhich is exempt by virtue of Section 36 of FOIA if or to the extent that in all thecircumstances of the case the public interest in maintaining the exemptionoutweighs the public interest in disclosing the information.
[6] The Commissioner concluded in the DN dated 16 December 2022 that there weredefects in the procedure by which the qualified person had given an opinion forthe purposes of reliance on the section 36 exemptions.1 The DWP accepts thatconclusion. The Commissioner’s DN also required the DWP to disclose therequested information with the exception of information exempt under section42(1) of FOIA (see below).
[7] On 12 January 2023 the Tribunal received the DWP’s notice of appeal against theDN together with an application for an extension of time to file its grounds ofappeal, which were filed on 3 February 2023 (dated 31 January 2023). The groundsof appeal make reference to a fresh submission that was placed before a (new)
1 Since the Commissioner found that the exemptions were not engaged, it was not necessary to make anydecision relating to the public interest test.
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qualified person2 who on this occasion considered the withheld information andconcluded that disclosure of the requested information would be likely to inhibitthe free and frank provision of advice or the free and frank exchange of views forthe purposes of deliberation (Section 36(2)(b) of FOIA) or would otherwiseprejudice the effective conduct of public affairs (Section 36(c) of FOIA), and thatthe public interest in maintaining the exemptions outweighs the public interest indisclosing the information.
Jurisdiction:
[8] In view of this sequence of events, a question arises as to whether the Tribunal is
able to deal with the appeal. Section 58 of FOIA provides (with our emphasis):
Determination of appeals.
If on an appeal under section 57 the Tribunal considers—
that the notice against which the appeal is brought [i.e. a decision notice issued by the
Commissioner] is not in accordance with the law, or
to the extent that the notice involved an exercise of discretion by the Commissioner,
that he ought to have exercised his discretion differently,
the Tribunal shall allow the appeal or substitute such other notice as could have beenserved by the Commissioner; and in any other case the Tribunal shall dismiss theappeal.
On such an appeal, the Tribunal may review any finding of fact on which the notice in
question was based.
[9] The point was addressed as follows by the DWP in its grounds of appeal.
[10] A public authority is permitted to rely on an exemption before the Tribunal whichwas not relied on before the Commissioner. By analogy, the DWP is permitted torely on a ‘fresh’ opinion from a qualified person for purposes of the exemptions in
2 A witness statement subsequently filed by the DWP confirms that this happened on 27 January 2023, i.e. afterthe notice of appeal was filed and a few days before the grounds of appeal were filed.
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section 36 of FOIA. In Information Commissioner v Home Office [2011] UKUT 17(AAC), UTJ Jacobs held that the handling of a FOIA request by a public authorityis ‘administrative’, and ‘does not involve any commitment as to the future’ (at ¶18).‘As a whole, the structure of FOIA is not consistent with a prohibition on raisingnew exceptions.’ At §29, it was held:
In summary, a public authority is allowed to change its position to disclose information. Ifit is not allowed to change its position to rely on another exemption, this may hamper a fullconsideration of the public interest and prevent the interests of third parties being takeninto account.
[11] The Upper Tribunal also considered the Tribunal’s role on appeal:
As to the function of [s.58 FOIA], the First-tier Tribunal hears appeals under a varietyof legislation. There are various formulations in different legislation, but generally theyhave in common that the tribunal is required to undertake a fresh consideration of the caseon the evidence and arguments put to it. That is what I expect to find in the case of aninitial appeal from a decision-maker in a public body, as the tribunal will give the case thefirst judicial consideration. It is the nature of such an appeal that there is generally norestriction on the issues, evidence or argument that the tribunal can consider. This is, ofcourse, subject to any express or implied limitation.
That is what section 58 does. The tribunal is required to consider whether theCommissioner’s decision notice was in accordance with law. That directs attention to thecontents of the notice and the scope of the Commissioner’s duty under section 50. And thatdirects attention to whether the public authority is required to disclose the information.There is nothing in the language of the section or inherent in the nature of the tribunal’stask to limit the scope of that consideration. In other words, the section imposes the ‘inaccordance with the law’ test on the tribunal to decide independently and afresh. It isinherent in that task that the tribunal must consider any relevant issue put it by any of theparties. That includes a new exemption relied on by the public authority.
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[12] In Birkett v DEFRA [2011] EWCA Civ 1606, a case involving the EnvironmentalInformation Regulations, the Court of Appeal agreed that new exemptions couldbe relied on as of right at least until the point that a response under rule 23 of theGeneral Regulatory Chamber tribunal procedure rules is provided. It held:
28 […] The Tribunal is a creature of statute. Not only is there no need for a non-statutorydiscretion such as that purportedly exercised by the Tribunal in the present case; there isno scope for the exercise of such a discretion in a statutory scheme which requires the publicauthority to set out its grounds of appeal, or grounds of opposition in response to an appeal,within a particular timescale, and which expressly envisages in the case of the latter thatthose grounds may not be contained in another document provided with the response, i.e.that they may contain new reasoning.
[13] In McInerney v Information Commissioner, UTJ Jacobs noted at §32 that ‘there is noUpper Tribunal decision that disagrees with my conclusion or my reasoning in theHome Office case. My understanding is that it is now generally accepted as correctand that the Court of Appeal’s decision on the EIR [in Birkett] is treated assupporting my decision on FOIA.’
[14] It follows, submitted the DWP, that the DWP is permitted to rely on the new
opinion of a qualified person obtained after the Commissioner issued the DN.
[15] The Commissioner does not object to this analysis in response to the DWP’sappeal. The Tribunal is equally content to proceed accordingly and to undertake afresh consideration of the case on the evidence and arguments put to it by both theDWP and the Commissioner in the appeal.
The issues:
[16] The Commissioner now accepts in this appeal that, following the fresh submissionto the qualified person subsequent to the DN, Section 36(2)(b) of FOIA applies to
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the requested information.3 However, the DWP and the Commissioner disagreeon the question of whether in all the circumstances of the case the public interestin maintaining the exemption outweighs the public interest in disclosing theinformation.
[17] In respect of a small amount of information falling within the scope of the requestthe DWP also relied on the exemption in Section 42 of FOIA, which provides thatinformation in respect of which a claim to legal professional privilege could bemaintained in legal proceedings is exempt information. In the DN theCommissioner accepted that legal professional privilege applies to a limitedamount of information covered by the request. The DWP no longer appeals againstthis aspect of the DN.
[18] This means that the issues have narrowed since the DN was issued and since theappeal was filed, and that the principal point to be determined is the public interesttest which applies to the exemption in section 36(2)(b) of FOIA.
[19] The Tribunal was helpfully assisted in the hearing of this appeal by written andoral submissions made on behalf of the DWP and the Commissioner and by openand closed witness statements filed on behalf of the DWP. A Gist of the closedevidence is attached as Appendix A. The Tribunal also received a closed bundlecomprising the information withheld by the DWP in response to the request.
The section 42 exemption and public interest test
[20] While the DWP no longer appeals against the Commissioner’s DN relating to theextent to which the Section 42 exemption applies to a limited amount of thewithheld information, at the hearing the Tribunal questioned whether that
3 In the appeal the DWP did not press the point as to whether separate considerations arise under section 36(2)(c). Given that the Commissioner now accepts that the exemption in section 36(2)(b) is engaged (butsubject to the public interest test), the DWP took the position that the question of whether or not releasing therequested information would or would be likely to otherwise prejudice the effective conduct of public affairs islargely moot.
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information qualifies for protection under legal professional privilege. TheTribunal also questioned whether the information constitutes communicationsbetween a lawyer and client for the purpose of obtaining legal advice or inconnection with existing or reasonably contemplated litigation. (While theTribunal had understood from the DN and from the DWP’s submissions andevidence that it is legal advice privilege which is asserted by the DWP, it wassuggested by Counsel for the Commissioner at the hearing that the informationwas subject to litigation privilege.)
[21] The Tribunal subsequently issued directions seeking submissions from the DWPon these questions and on the public interest test. We received helpful closedsubmissions, supported by a closed witness statement, explaining why on a properlegal and factual reading of the relevant information it qualifies for both legaladvice privilege and litigation privilege.
[22] The DWP’s closed submissions also addressed the DWP’s reasons for assessingthat in all the circumstances of the case the public interest in maintaining theSection 42 exemption outweighs the public interest in disclosing the information.
[23] The Commissioner did not file any submissions on these points in reply. Asmentioned at the outset, there is no longer any dispute between the DWP and theCommissioner about the DWP’s reliance on the section 42 exemption in respect ofa limited amount of the withheld information.
[24] The Tribunal accepts the submissions and evidence given by the DWP inaccordance with the Tribunal’s directions to support the DWP’s reliance on thisexemption. The Tribunal also accepts that in all the circumstances the publicinterest in maintaining the exemption in respect of a limited amount of privilegedinformation outweighs the public interest in disclosing the information.
The section 36 exemption and public interest test:
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[25] While the Commissioner and the DWP arrived at an agreed position that theinformation withheld by the DWP is exempt under section 36 of FOIA becausedisclosure would or would be likely to inhibit the free and frank provision ofadvice or the free and frank exchange of views for the purposes of deliberation,they have different views on whether in all the circumstances of the case the publicinterest in maintaining the exemption outweighs the public interest in disclosingthe information.
[26] Both parties agree that the subject matter of this appeal is of significant publicinterest and agree with the trite proposition that there is a strong public interest intransparency of Governmental decision-making.
[27] While the Commissioner noted that the policy decision to which the informationrequest relates was controversial, the DWP said that this is double-edged: Whilecontroversy is capable of increasing public interest, it is also liable to increase therisk of a chilling effect on officials and to increase the risk of distortion andmisunderstanding of information. There is an equal countervailing interest inensuring that decision-making is based on the ability of officials to give their viewsand analysis without fear. The need for a free space in which to make suchdecisions is important. If officials could not be sure that their input into theformulation of Government policy and decision-making is protected from publicdisclosure, there would be a strong incentive to omit or to diminish ‘negative’information and the prejudice likely to be caused by its disclosure. Moreover, thepublic interest in publication of information is to a great extent satisfied by the factthat the DWP has publicly stated its justifications for the policy in question. Thepublic can access these explanations, which are already in the public domain.
[28] The DWP also said that the public interest in free and frank discussion and analysisof difficult policy choices and in the ability of officials to act free from inhibition insuch circumstances is especially prominent. It does not serve the public interest forthe discussion of any controversial topic to be pervasive or inhibited due to fearsof subsequent misinterpretation.
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[29] The Commissioner made these submissions in response to the DWP’s grounds of
appeal in respect of the public interest test:
[30] When assessing the public interest balance under the section 36 exemption,appropriate weight should be given to the opinion of the qualified person:Department for Works and Pensions v Information Commissioner & Zola [2016] EWCACiv 758 at [55].
[31] The opinion of the qualified person is not, however, conclusive: Guardian
Newspapers Ltd and Brooke v Information Commissioner & BBC (EA/2006/0011 andEA/2006/0013, 8 January 2007) at [92]:
In our judgment the right approach, consistent with the language and scheme of the Act isthis: the Commissioner, having accepted the reasonableness of the qualified person’sopinion that disclosure of the information would, or would be likely to, inhibit the free andfrank exchange of views for the purposes of deliberation, must give weight to that opinionas an important piece of evidence in his assessment of the balance of public interest.However, in order to form the balancing judgment required by s2(2)(b), the 41Commissioner is entitled, and will need, to form his own view on the severity, extent andfrequency with which inhibition of the free and frank exchange of views for the purposes ofdeliberation will or may occur.
[32] The Tribunal has generally been sceptical of arguments that disclosure will inhibitfree and frank discussion in the future - Davies v Information Commissioner and theCabinet Office [2019] UKUT 185 (AAC) at [25]:
There is a substantial body of case law which establishes that assertions of a “chilling effect”on provision of advice, exchange of views or effective conduct of public affairs are to betreated with some caution. In Department for Education and Skills v InformationCommissioner and Evening Standard EA/2006/0006, the First-tier Tribunal commentedat [75(vii)] as follows:
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“In judging the likely consequences of disclosure on officials’ future conduct, we areentitled to expect of them the courage and independence that has been the hallmark of ourcivil servants since the Northcote-Trevelyan reforms. These are highly educated andpolitically sophisticated public servants who well understand the importance of theirimpartial role as counsellors to ministers of conflicting convictions. The most seniorofficials are frequently identified before select committees, putting forward theirdepartment’s position, whether or not it is their own.”
[33] The Commissioner considered that there was a strong public interest in opennessand transparency both generally and in this specific case. In particular, there wasa strong public interest in being able to understand the reasoning behind thedecision to end the Universal Credit uplift and the information that was availableto decision-makers at the time. The Commissioner accepted that the controversialnature of the decision was a factor both in favour of and against disclosure.
[34] The Commissioner did not, however, consider the DWP’s arguments aboutchilling effect to be convincing. The Commissioner submitted that the Tribunal hashistorically been sceptical of such arguments: Davies v IC and Cabinet Office. TheCommissioner did not consider it likely that disclosure of the withheldinformation would have any substantial chilling effect in this case, even taking intoaccount the controversial nature of the decision relating to the Universal Credituplift. As such, the Commissioner’s view was that the controversial nature of thedecision is a factor in favour of disclosure. In respect of transparency, theCommissioner also noted that the publicly stated justification for the decision wasmade after the date of the DWP’s final refusal of the request (save for the SocialSecurity Uprating of Benefits Bill on Wednesday 13 October 2021) and as such didnot assist in assessing the public interest at that date.
[35] Finally, insofar as there was genuine concern about the possibility ofmisinterpretation arising from disclosure of the withheld information as arguedby the DWP, in the Commissioner’s view this could be met by a proper explanation
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from the DWP, in particular that the information was based on limited pre-pandemic information which did not give an accurate view of the current situation.
[36] In reply, the DWP was of the view that the Commissioner’s assessment of publicinterest did not do justice to the complexity of the issue, or the nuances identifiedby the DWP. The DWP had identified a case-specific risk of chilling effect, whichthe ICO did not address. The withheld information suffered from necessarylimitations. While it served as a useful tool for ministers and officials, it isnecessarily imperfect. In such circumstances there is a substantial risk of futurediscussions between ministers and officials being hindered. Such discussions willoften benefit from inchoate or imperfect analysis being considered. But releasingsuch analysis to the world would lead to unfair criticism, misunderstanding andconfusion. In turn this would lead to officials being much more reticent.
[37] The DWP also stressed that, as recognised in the Commissioner’s DN, the policycontext of the withheld information was especially febrile. This made the chillingeffect identified by the DWP likely to ensue. Such a chilling effect would becontrary to the public interest, which is best served by ministers having as muchanalysis as is possible. The DWP was also concerned that releasing the withheldinformation would lead to policy-making being misrepresented andmisunderstood. If (as is common ground) transparency is central to the publicinterest, then creating uncertainty and misunderstanding is inimical to it.
Decision:
[38] Having viewed the withheld information, the Tribunal can see some merit in theDWP’s concerns which principally relate to a risk that its disclosure would createa chilling effect on decision-making and a risk of misinformation. However, theTribunal does not agree with the DWP’s assertion that the Commissioner failed toadequately address these concerns in the appeal or erred in assessing them.
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[39] The Commissioner’s reply to the ‘chilling effect’ argument is that the starting pointis that civil servants are expected to be robust in the face of public scrutiny and criticism (Davies v Information Commissioner and the Cabinet Office [2019] UKUT 185(AAC) at [25]) and that the Tribunal is “entitled to expect of them the courage andindependence that has been the hallmark of our civil servants since the Northcote-Trevelyan reforms”.
[40] The Commissioner stressed that in this case it is important to bear in mind the timeat which the public interest is to be assessed, namely as of the date of first refusalof the request by the DWP. At that time, the policy in question (i.e. to discontinuethe Universal Credit uplift) had already been finalised and announced and therelevant decision had already been taken months before. Accordingly, the policywas not ‘live’ at the time of the request, and concerns over a safe space for policyformulation have much less weight as a result.
[41] The Commissioner said that the DWP did not taken proper account of theextremely unusual circumstances in which the withheld information wasproduced. First, the pandemic conditions were unprecedented and the prospect ofa ‘chilling effect’ is reduced where similar circumstances are unlikely to recur.Second, civil servants can be expected to operate under difficult conditions attimes, and the fact that they do so in a particular instance does not mean that thework undertaken by them in those conditions should be immune from scrutiny.
[42] In respect of the risk of misinformation, the Commissioner submitted thatmisunderstanding of published information is always a possibility and does notprovide a strong argument against disclosure absent compelling reasons whythere would be a particularly serious risk of misinformation in an individual case.No compelling reason was identified in this case.
[43] The Commissioner was not convinced by the assertion that significant resourceswould be required to correct any potential for public misunderstanding of the
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withheld information. The Commissioner’s position is that it is open to the DWPto provide an explanation of any issues relating to accuracy or interpretation of theinformation, or any other concerns it might have.
[44] The Commissioner considered that any concerns about partial disclosure couldagain be addressed by way of appropriate explanation or by further voluntarydisclosure of information to provide context and a more complete picture. Publicunderstanding, and therefore the public interest, is best served by disclosure ofrelevant material, even if that is necessarily partial. The public can be expected toappreciate and understand the difficult conditions in which the information wasproduced.
[45] Set against the DWP’s concerns, the Commissioner considered that the publicinterest in disclosure was very strong. The circumstances surrounding theproduction of the withheld information were unique. The public has a very stronginterest in understanding how decisions over Universal Credit support during thepandemic, and the continuation or discontinuation of that support, were made.
[46] Insofar as information was published voluntarily to assist public understandingafter the information request was made, the Commissioner submitted that this isof no relevance to the public interest balance. While the DWP clarified that itregularly publishes information, this is of limited use where direct scrutiny ofmaterial used in decision-making is much more important as a means oftransparency.
[47] Like the Commissioner, the Tribunal accepts that the opinion of the new qualifiedperson to support reliance on the Section 36(2)(b) exemption subsequent to the DNwas a reasonable one and that the concerns identified by the DWP and thequalified person with disclosure of the withheld information are legitimate.
[48] However, in assessing the public interest test the Tribunal agrees with theCommissioner that those concerns are reasonably capable of mitigation by
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appropriate measures. We have also taken into account that the public interest testmust be assessed not generically but, in a ti5e,-specific and case-specific way. Atthe time of the request (12 September 2021), the Government had alreadyconfirmed its policy that the Universal Credit uplift would be withdrawn. Thisreduces the risk that disclosure of the withheld information would have caused a
‘chilling effect’ or otherwise inhibited the free and frank provision of advice orexchange of views specifically informing the decisions that were made on theUniversal Credit uplift.
[49] Taking into account all relevant factors, the Tribunal considers that in all thecircumstances of this case the public interest in maintaining the Section 36(2)(b)exemption does not outweigh the significant public interest in disclosure of thewithheld information.
[50] Accordingly, the Tribunal has no reason to determine that the Commissioner’sresponse to this appeal is not in accordance with the law or that the exercise ofdiscretion in respect of the public interest test as presented by the Commissionerin the appeal ought to be exercised differently.
Substituted Decision Notice
The Tribunal orders that the DWP is to disclose to the requester within 28days of this judgment all the withheld information in the Closed Bundleexcept for information which is exempt under Section 42 of FOIA as agreedbetween the DWP and the Commissioner and any personal data. The Excelspreadsheet in the Closed Bundle must be converted to and disclosed in aformat that is not capable of being modified (for example in PDF format) andmust not be disclosed as a working spreadsheet.
Any failure to abide by the terms of the Tribunal’s substituted decisionnotice may amount to contempt which may, on application, be certified tothe Upper Tribunal.
Brian Kennedy KC 15 January 2024.
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