Fiona Thompson v The Information Commissioner & Anor

This decision concerns three requests made by Fiona Thompson to His Majesty’s Treasury (“HMT”), pursuant to the Freedom of Information Act 2000.

All three requests concern the Loan Charge, a scheme introduced by HMRC in 2016 to target those using, or who had used, ‘loan schemes’ to avoid liability for income tax and national insurance. Following a range of concern over some of the scheme’s effects, in particular its retrospectivity, the government commissioned Sir (later Lord) Amyas Morse to conduct the Independent Loan Charge Review (Footnote: ¹). This reported in December 2019, following which:

The above paragraph is taken from a detailed history of the Loan Charge and the Review contained in a recent decision of this Tribunal: Tully v Information Commissioner [2024] UKFTT 312 (GRC), EA/2023/0462. We gratefully adopt it as part of our own consideration.

There are many who remain dissatisfied with the outcome of the Review and the action taken in response to it. For example, there is a Loan Charge Action Group (“LCAG”) that describes itself as “a non-profit volunteer run group that actively campaigns against Loan Charge legislation and the aggressive pursuit by HMRC of taxpayers to settle the associated tax demands”. There are numerous appeals before this Tribunal relating to Freedom of Information requests for information held by HMT concerning the enquiry.

Such grass roots activism in response to a measure combatting tax avoidance might at first seem surprising. In his report’s Executive Summary, Sir Amyas Morse describes how many Members of Parliament had initially greeted constituents’ concerns with scepticism, their views then evolving once the details emerged. He later explains that those affected by the Loan Charge:

The majority of the impact statements received by the Review from those affected said that the author or a family member had experienced a decline in their mental health as a result of their experiences with the Loan Charge. On 18 January 2024, Sky News reported (Footnote: ²) that “HMRC has admitted that there have been 10 suicides linked to the loan charge”, although of course we should not be taken as drawing any causative link ourselves.

The above background illustrates the emotive and serious context in which those dissatisfied at the Review’s recommendations, and its recognition of the Loan Charge’s effects and HMRC’s surrounding conduct, have sought information about the way in which the Review reached its conclusions.

The parties have all consented to this appeal being decided without a hearing. We have had regard to the documents contained within the bundles, open and closed, filed in each appeal.

We should say at the outset that the length of these reasons will not reflect the length of the submissions and the volume of the papers before us. Ms Thompson has made very detailed submissions concerning the Loan Charge, the Review, and her disputes with HMT, HM Revenue & Customs, and the Commissioner. This Tribunal is neither required to, nor realistically could, rehearse and assess every factual and legal point made. We shall instead identify which issues we consider relevant to our decision, and explain how we have decided them. It has not been necessary to issue any closed reasons. An embargoed draft of this decision was sent to the respondents to ensure that none of the information requested in Request #1 had been inadvertently disclosed.

They are as follows:

To summarise the context of Requests #2 and #3, Request #2 is about how HMT came to its conclusion on Request #1. Request #3 asks for information from the mailboxes of key officials at HMT, at a time immediately after LCAG sent a letter (dated 21 October 2021) to Lord Morse. This letter had set out LCAG’s outstanding concerns at his report, including new evidence said to have emerged and criticism of the way in which the government had interpreted his recommendations.

The Tribunal has already considered several cases related to the Loan Charge:

We approach the appeals by first deciding whether the information subject to Request #1 is exempt under section 36. This will then inform our consideration of whether Requests #2 and #3 are vexatious.

We have had regard to the open bundle prepared in each appeal. In relation to Request #1, HMT has provided a closed bundle containing the requested information, the material submitted to the qualified person, and confirmation of the qualified person’s opinion. A rule 14(6) direction was previously made in respect of this material. Applying the decision of Browning v Information Commissioner [2014] EWCA Civ 1050, we agree that continued reliance upon closed material is justified; this has enabled the Tribunal to view the withheld information for itself to determine the issues in the appeal, and Ms Thompson has been given a fair opportunity to make any submissions she considers appropriate.

In Information Commissioner v Malnick [2018] UKUT 72 (AAC), at [45] and [90], it was confirmed that the Tribunal exercises a full merits appellate jurisdiction. We make any necessary findings of fact and decide for ourselves whether the provisions of the Act have been correctly applied. But we do not start with a blank sheet: the starting point is the Commissioner’s decision, to which we should give such weight as we think fit in the particular circumstances. The proceedings are inquisitorial save that we are entitled to respect the way in which the issues have been framed by the parties. We address matters as they stood at the date of the relevant response by HMT: Montague (Information rights - Freedom of information - public interest test, qualified exemptions) [2022] UKUT 104 (AAC) at [62]-[63].

So far as relevant to this decision, section 36 provides as follows:

Where information is held by a government department, section 36(3) provides that the qualified person must be any Minister of the Crown. The Upper Tribunal in Malnick at [29-30], noting the requirement for seniority in section 36(3), held that while the qualified person’s opinion is not conclusive as to prejudice, it is to be afforded a measure of respect. At [47], the Upper Tribunal held that ‘reasonable’ in this context means ‘objectively reasonable’, and at [52-56] that it is intended to refer to substantive reasonableness rather than impose a procedural requirement. If the Tribunal agrees that the qualified person’s opinion is reasonable, then the procedure by which it was reached is irrelevant. A FOIA appeal is not a judicial review; it is concerned with matters of substance, not process.

Section 36 is subject to the public interest balancing test. If the Tribunal finds that the qualified person’s opinion that the relevant prejudices or inhibitions are engaged was reasonable, it must then decide whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Only if that is so will the public authority be relieved from the obligation to provide the requested information.

Section 14(1) provides that a public authority is not obliged to comply with a request if it is vexatious. For the principles that apply to deciding whether a request is vexatious, we first turn to Information Commissioner v Dransfield [2012] UKUT 440 (AAC). The Upper Tribunal emphasised that the request must be vexatious, not the requester. A request may be inconvenient, irritating, or burdensome to the public authority without necessarily being vexatious; holding public authorities to account by giving access to information is one of the purposes of the legislation. That creates a balancing exercise, where the distress, disruption, irritation or burden caused by a request that must be weighed against the justification for making it. It is important to adopt a holistic and broad approach that considers all the relevant factual circumstances. They are likely to fall under four headings: (a) the burden on the public authority and its staff; (b) the motive of the requester; (c) the value or serious purpose of the request; and (d) any harassment or distress. The Upper Tribunal gave more detailed guidance on each of those topics, to which we shall refer if necessary within our own analysis.

An appeal against the Upper Tribunal’s decision was dismissed, in Dransfield v Information Commissioner [2015] EWCA Civ 454. Arden LJ (as she then was) approved the Upper Tribunal’s analysis and guidance subject to some clarification of her own. While the aim of s.14(1) might be to protect the authority’s resources from being squandered on disproportionate use of FOIA, as held by the Upper Tribunal, that aim would only be realised if the high standard set by vexatiousness was also satisfied. Parliament had chosen a strong word in ‘vexatious’, meaning that the hurdle of satisfying it is a high one: consistent with the constitutional nature of the right. It is an objective standard, primarily involving making a request where there is no reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or any section of the public. This, and a relevant motive that could be identified with a sufficient degree of assurance, such as vengeance for the public authority’s actions, might both be evidence from which vexatiousness could be inferred. Arden LJ nonetheless added that this “could not be said, however vengeful the requester, if the request was aimed at the disclosure of important information which ought to be made publicly available.” At [85], Arden LJ also agreed that a request might be vexatious in part because of, or solely because of, the costs of complying with it. The preservation of the Upper Tribunal’s guidance in Dransfield has subsequently been confirmed in authorities such as Cabinet Office v ICO and Ashton [2018] UKUT 208.

In some of her written arguments, Ms Thompson has sought to expand on the legal principles concerning vexatiousness. The above summary of the law is sufficient for us to properly address the issue in these appeals.

We are satisfied that a qualified person has given an opinion that the prejudice and inhibitions mentioned at section 36(2) would be caused by disclosure. The Decision Notice confirms that the qualified person is the Rt. Hon. Kemi Badenoch MP, who was then Exchequer Secretary. We have seen, in the closed material, the materials provided to the qualified person and confirmation of her opinion. That opinion having been given, and by a person specified by 36(3), we disregard Ms Thompson’s concerns on both how it was reached and Ms Badenoch’s ability to give it; what matters is whether we consider it reasonable, a decision we take based on the evidence and the parties’ arguments. In any event, and to reassure Ms Thompson, we see nothing improper in how the matter was put to the qualified person.

We unhesitatingly conclude that the qualified person’s opinion was reasonable. As Ms Thompson anticipated, the withheld information consists of discussion by officials of the possible candidates to lead the review, and the authors’ views of those candidates’ ability to do so. Not only are the candidates named, but the perceived ‘pros’ and ‘cons’ of each, in relation to various considerations, are frankly described. It is that exchange of free and frank advice that section 36(2) protects.

The nature and scope of a review falling outside a particular statutory framework, such as sensitivity, timescales and resources, are properly matters for the executive to decide. This is the case even if those objectives reduce the transparency with which the necessary arrangements are made. It is no function of this Tribunal to question such decisions, and the civil servants involved were under a duty to implement them. Many of the personal and practical considerations that they needed to address can be readily inferred by anyone.

Free and frank advice, and exchange of views for the purposes of deliberation, is plainly essential if an exercise such as the Review is to be effective. The voicing of opinions, including comparative opinions, would inevitably be inhibited if it were thought that those opinions would later be read by the world at large. This in turn would prejudice the effective conduct of public affairs. We can express that conclusion in general terms, finding that such inhibition and prejudice would be likely in relation to the organisation of any similar exercise. There is nothing in the closed material marking out this Review an exception. The prejudice and inhibitions at section 36(2) would plainly arise in relation to future such exercises if this requested information is disclosed, and in circumstances where the qualified person’s opinion is reasonable.

Next undertaking the public interest balancing test, we first weigh the factors supporting maintenance of the exemption. This includes those listed in the above three paragraphs. The ability of officials to gather information and freely and frankly exchange opinions and advice on the positive and negative practical and personal aspects of possible candidates carries significant weight. Ms Thompson argues in her grounds that this factor is diminished by the Review having concluded and time having passed. While we agree that that there no longer exists any possibility of this Review’s actual work being undermined, as would very likely have been the case if disclosure occurred while it was still in progress, this does nothing to reduce the inhibitory and prejudicial effect on future exercises as we have already discussed.

In support of disclosure, Ms Thompson puts forward the importance of the issues surrounding the Loan Charge as supporting transparency. We agree that there is a general public interest in transparency. We disagree that public debate and scrutiny of the Loan Charge and the response to it would be greatly assisted by the requested information being disclosed. The Review’s Terms of Reference have been published. The fact that Lord Morse was ministerially selected to lead the Review is known, and his suitability can be debated and scrutinised by reference to what is publicly known about him, the Review’s work, and its conclusions and recommendations under his leadership. Disclosure would shed no further light on the evidence considered by the Review after Lord Morse’s appointment, and would not assist with addressing concerns such as those set out in LCAG’s letter of 21 October 2021.

Contrary to Ms Thompson’s grounds, it is not in the public interest that scrutiny of the Loan Charge Review be informed by the assessment of who should lead it. Even in the case of more formal appointments, such as those made in accordance with the Principles of Public Appointments and the Cabinet Office's Governance Code on Public Appointments, or even judicial appointments, it is the procedure for appointment that is transparent rather than what the panel thought were the various candidates’ comparative strengths and weaknesses. In fairness to Ms Thompson, she does state that she would be satisfied with redaction of the various candidates’ names and any identifying details. Due to the seniority of those considered, however, virtually all commentary and description of candidates’ roles would need to be removed to avoid their identification. While not something we need take into account for present purposes, it is likely that removal of identifying details would be required under section 40(2) in any event.

Ms Thompson also ascribes value to the selection of candidates in a broader sense, for example why “demands for [the Review] to be chaired by a truly independent and knowledgeable tax judge” were rejected. In our view, the professional background of the appointee cannot reasonably be extracted from the discussion of individual candidates’ pros and cons. More importantly, it is one of the factors which attracts the need for frank advice and discussion to be protected that we have discussed above. The decision to appoint a person with Lord Morse’s background can, again, be scrutinised and debated by reference to the Review itself.

From Ms Thompson’s grounds, we also derive her concerns that the discussion and assignment of merit to candidates included whether they would deliver a pre-determined result, disclosed a free-standing intention to avoid a transparent public appointment process, contrived urgency or sensitivity in support of that objective, or attempted to introduce partiality. We would accept any of those as increasing the public interest in disclosure, if established, but we can see nothing in the closed material calling into question the good faith of those involved.

In conclusion, the public interest in maintaining the exemption outweighs the public interest in disclosing the requested information. Disclosure would cause significant prejudice, and would undermine rather than support the integrity and effectiveness of this and future reviews. It would provide no material contribution to the debate surrounding the Loan Charge.

We therefore find that the requested material in Request #1 is exempt from disclosure. The Commissioner’s Decision Notice to that effect was therefore correct in law and this appeal must be dismissed. There is no need to address the other exemptions upon which HMT relied.

We approach vexatiousness under the four headings suggested by the Upper Tribunal in Dransfield.

As recorded in the Decision Notice, HMT’s arguments to the Commissioner had focused on burden. This request was closely related to Request #1 and was made at or about the same time as a request for an internal review. HMT was therefore simultaneously addressing both a detailed request for information and another request about that process. Adding to that inherently burdensome process was the work required by Request #2. Hundreds of emails were potentially in scope, and because records of how Request #1 was dealt with inevitably referred to the requested information, work would have to be done to remove and redact information claimed by HMT to be exempt under (among others) section 36(2).

The Commissioner agreed that HMT’s analysis above was well-founded, and we reach the same conclusion ourselves. Requests about requests are always burdensome, and this one was made while the parties were still corresponding about HMT’s response to Request #1.

We also accept HMT’s observation that, contrary to what Ms Thompson had argued, being a large government department did little to reduce the effect on its resources of complying with the two requests. The mailboxes to be searched belong to high level officials, and review of material for disclosure had to be conducted by someone with enough knowledge and seniority to identify potential exemptions.

Also on this topic, HMT had relied on a list of the various requests made by Ms Thompson. We treat this list with caution as it is not clear where a narrowing or refinement of a request has been treated as an entirely new request. Nonetheless, the overall burden posed by Ms Thompson’s requests as described already in these reasons does fall to be taken into account. We have not found it necessary to consider whether requests by other individuals on the same topic make any contribution.

These can be taken together, as we accept that Ms Thompson’s stated purpose for making the request accords with her genuine motivation for doing so. In her grounds of appeal she describes it as follows:

As stated in the Decision Notice at paragraph 44, it may sometimes be reasonable to make a so-called ‘meta-request’ and that in this case, for example, HMT ought to have simply informed Ms Thompson of the qualified person’s identity in its response to Request #1.

Here, we are entirely satisfied that the purpose described by Ms Thompson above has no serious value to either her or the public in general. The statutory scheme in FOIA entitles a person to complain to the Commissioner about a public authority’s response to an information request. Parliament has given the Commissioner powers to investigate that complaint, including by requiring the public authority to provide information. It is a matter for the Commissioner when and how he should do so. If dissatisfied, there is a right of appeal to the Tribunal. This Tribunal has powers to require a public authority to provide documents, attend court for questioning, and even to permit a search of its premises. Failure to comply with requirements imposed by the Commissioner and the Tribunal may, ultimately, be subject to contempt proceedings and punished by imprisonment. A judge will decide whether to exercise the Tribunal’s powers in accordance with the overriding objective to its Procedure Rules and in pursuit of its inquisitorial function under FOIA. If the Commissioner does not do its job properly, then this can be remedied on appeal, by a complaint to the Parliamentary and Health Service Ombudsman, or by judicial review proceedings. If the Tribunal does not do its job properly then it can be corrected by the Upper Tribunal. This is how Parliament has decided that proper investigation of public authorities’ compliance with FOIA should be conducted.

Ms Thompson’s meta-request sidesteps the regime described above by requiring the public authority to disclose everything it holds in any event. This was done in relation to a request where no complaint had even yet been made to the Commissioner. That would have been the proper place for Ms Thompson to air her concerns. We have now dealt with her appeal concerning that request, and there has been no application for us to exercise our enforcement powers. Nor, even on the basis of Ms Thompson’s various complaints, do we see any value in doing so.

This is not such a weighty factor as those above. Ms Thompson is not abusive in her language, although she does make serious allegations against HMT that are not well-founded based on the evidence before us. We further find that the patterns of requests, including requests about requests, has a harassing effect even if that is not its intention.

We are reminded of the Upper Tribunal’s description in Dransfield of “vexatiousness by drift”, where successive requests become disproportionate to the original aim. Ms Thompson wished for greater transparency concerning the Loan Charge Review, and has made numerous requests. It has not been argued that Request #1 was vexatious. But Request #2 is a request about the request, born out of unjustified suspicion and for which more suitable remedies existed. It is not truly related to her original aim at all, and is disproportionate to it. The request’s timing, purpose and burden combine to outweigh any justification for making it, and the request meets the high hurdle of being vexatious. The Commissioner’s Decision Notice to that effect was therefore correct in law and this appeal must be dismissed.

This request originated on the same day as Request #2. Its timing and content is the same as a request made by Ms Thompson relating to HMRC officials, as under consideration in appeal EA/2023/0099 described above. HMRC and the Commissioner did not consider the request to be vexatious, and instead the principal issue in that appeal is exemption under section 36(2)(b) . The Commissioner argues (Response 11 December 2023, paras 38-41) that it is impermissible for the Tribunal to engage in any form of comparative analysis to determine vexatiousness in this case. We disagree with that statement of principle, but on considering the preliminary decision in EA/2023/0099 we find that it contributes nothing of significance in the present appeal. As a public authority, HMRC will hold different information from HMT, hold it in different ways and face a different overall pattern of requests. There is nothing inherently objectionable about finding that one request is vexatious and the other not.

Ms Thompson engages in considerable criticism of the Commissioner’s investigation. We do not consider this relevant to our decision, as we are concerned with the request itself. Any criticisms she makes of the Commissioner’s analysis we shall take into account when reaching our own view.

We repeat our observations under Request #2 as to HMT’s size and the administrative burden posed by requests that concern senior officials’ mailboxes. While the act of searching a mailbox for a text string is not particularly onerous, extracting the various threads and attachments takes time. HMT described to the Commissioner how the junior member of staff conducting that search would then have to submit their returns to a policy official who must spend time reading, extracting and highlighting information, as well as other tasks. We accept this, and the factor carries weight when considering burden. We also accept that the second part of the request would require significantly more work than searching email inboxes.

We also consider that if Ms Thompson wanted to know about the reaction to the letter (which we find as a fact that she did), the request could have been far more focused. We accept HMT’s description of the number of results. Ms Thompson additionally specified high level officials, who are likely to be engaged in long-term strategic discussions on a wide range of subjects, and potential exemptions must be carefully assessed by someone who is in themselves in a position of knowledge and authority.

Like the Commissioner, we nonetheless decline to place any meaningful weight on HMT’s claimed lack of resources for FOIA compliance generally. There may be proactive steps to publication that could be taken that would lessen its overall burden. HMT also drew attention to the overall pattern of requests. We again attribute limited weight to the list provided by HMT in terms of simple numbers, due to the designation of properly narrowed or refined requests as fresh requests. But the close timing of the three requests considered in these proceedings, and the nature of the other requests to which we have referred, carries weight in our analysis for the reasons already given.

Ms Thompson says the following:

In our view, this request constitutes further evidence of the “drift” discussed in relation to Request #2, taken with which it can be seen that Ms Thompson’s real purpose is to expose some sort of perceived corruption or concealment on the part of HMT officials. While exposing such behaviour, where it exists, is a valid use of FOIA, repeated, burdensome and speculative monitoring of senior civil servants’ inboxes and telephones is not. Request #2 requested information about a request for information about the selection of Lord Morse. This requests information from the same officials about a subsequent letter purporting to show inadequacies in that report. The letter may well be a legitimate way to address any perceived shortcomings in the report, but Request #3 is not. Even if what Ms Thompson says in the above paragraph is entirely well-founded, use of FOIA to monitor the subsequent actions of the officials she considers responsible is unjustified in light of all the circumstances.

When considered objectively, there is no reasonable foundation for thinking that the information sought would be of value to Ms Thompson or the public at large.

The Commissioner drew attention to the length and tone of Ms Thompson’s correspondence, which included referring to HMT staff as displaying “a shameful dereliction of public duty and service to demonstrate such an overt unwillingness to be transparent and open to members of the public.” This is far from the most abusive correspondence received by public authorities. But the way in which Ms Thompson writes to HMT makes a modest contribution to vexatiousness.

Taking the above factors together, to form a ‘holistic assessment’ that includes our consideration of Ms Thompson’s, we consider that Request #3 also crosses the high hurdle of being vexatious. The Commissioner’s Decision Notice to that effect was therefore correct in law and this appeal must be dismissed.