Haley Dixon v The Information Commissioner & Anor

NHSE maintains guidance on delivering same-sex accommodation in hospitals, dating to 2019 (“the 2019 Guidance”) [A60]-[A80]. Annex B of the 2019 Guidance addresses “trans people and gender variant children” [A72]-[A74].

In September 2021, NHSE commenced a review of the 2019 Guidance, including the provision in Annex B for trans people and gender variant children, to ensure that it remained appropriate. NHSE invited a large number of organisations to contribute to that review, including Mermaids, Stonewall, Gendered Intelligence and the LGBT Foundation [A142]-[A143].

On 9 September 2022 the Appellant submitted a request under FOIA to NHSE in the following terms (“the Request”) [A87]: “Under the Freedom of Information Act please can you provide me with any correspondence either to, from or between NHS England employees Ruth May, Chief Nursing Officer, Jane Robinson, Clinical Improvement Project Lead and Dr Michael Brady, National Advisor for LGBT Health which include the following terms: • Mermaids • Stonewall • Gendered Intelligence • LGBT Foundation. Please include all correspondence which mentions these organisations, includes the above terms, or is to or from workers for these organisations and the three named NHS employees between 1.01.2021 and today, 09.09.2022.”

On 1 February 2023, NHSE responded. It disclosed a substantial amount of information in response to the request, but (so far as is relevant to this appeal) relied on section 36 FOIA (prejudice to the effective conduct of public affairs) and section 40(2) (personal information) to withhold other information [A88]-[A179]. The Appellant requested an internal review on 3 February 2023. The Appellant referred the matter to the Information Commissioner (“the Commissioner”) on 17 April 2023. NHSE responded to the Internal Review request on 8 June 2023 relying on s36(2) FOIA to withhold the information. During the course of the Commissioner’s investigation further information was identified by NHSE and disclosed, on 20 June 2023 See: [A192]-[A204] and 14 July 2023 [A205]- [A368].

On 14 August 2023 the Commissioner issued his Decision Notice (“DN”) dated 14 August 2023 (IC-228151-N0D3), wherein he reached the conclusion that on the balance of probabilities, NHS England had supplied all of the information it held at the time of the request which falls within the scope of the Request and further also upheld NHS England’s reliance on s.36(2)(b)(ii) of FOIA in respect of the withheld information. The Commissioner also agreed that on balance the public interest weighed in favour of maintaining the exemption. The Appellant appealed [A10]-[A16] and the matter was heard by this Tribunal at what became a preliminary hearing on 3 April 2024. Mr Giancarlo Laura (“Mr Laura”) gave oral evidence, further to his witness statement dated 16 January 2024 [A406]-[A411]. The Tribunal considered that it would advance the overriding objective to adjourn the hearing with further case management directions, Open Directions dated 9 April 2024 [OB/B33] (pdf 934) and Closed Directions dated 9 April 2024 [CB/B2] (pdf 719).

Further searches were conducted as detailed in the Second witness statement of Mr Laura, dated 1 May 2024 [A510]-[A516] (=[B40]-[B46]). On 30 April 2024, Amanda Pritchard, the Chief Executive of NHSE and its qualified person for the purposes of section 36 FOIA, gave an opinion that disclosure of certain of the information retrieved would cause prejudice to public affairs See: [E137]-[E144].

Paragraphs 4-8 of the 9 April 2024 Open Directions provided for further searches to be conducted by NHSE, and for various documents to be filed and served. Those searches led to the following inclusions in the Open Bundle:

On 10 and 14 June 2024, NHSE re-disclosed but with limited circulation certain documents, having removed redactions of personal data – “in order to provide clarity for the purposes of the proceedings” and so they are not listed here. NHSE provided an exhibit “GL/1” to Mr Laura’s second witness statement, including various WhatsApp messages, and 8 “covering emails” [A824]-[A894] which had been omitted previously, in error.

Paragraph 9 of the Open Directions directed that a schedule of documents be provided. That Schedule appears in the Open Bundle an [OB/A507-A509] (pdf 514-516) (=[OB/B37-B39] (pdf 938-940)).

Paragraph 10 of the Open Directions provided a mechanism for the Appellant to challenge NHSE’s compliance with paragraphs 4-9. On 14 June 2024. The Appellant confirmed she was satisfied with the searches undertaken, and that she did “not intend to make any written representations pursuant to paragraph 10 of the April order” [OB/C399] (pdf 1775).

Paragraphs 4-8 of the Open Directions provided for further searches to be conducted by NHSE, and for various documents to be filed and served. Those searches led to the following inclusions in the Open Bundle:

On 10 June 2024, NHSE re-disclosed certain documents, having removed redactions of personal data in order to provide clarity for the purposes of the proceedings, from [OB/A566] (pdf 573) (=[OB/B131] (pdf 1032)). These data remain “withheld” for the purposes of FOIA and subject to the implied undertaking. These documents comprise three categories:

On 14 June 2024, NHSE made further disclosures including:

In the Open Bundle is the NHSE’s Submission the Response to the Open Directions dated 20 August 2024 is dated 11 September 2024 and appears at [OB/A499-A505] (pdf 506-512) which provides full detail in paragraph 4 of the chronology regarding identification of the withheld documents and relevant chronology of their disclosure.

On 13 December 2024, NHSE correspondence with the Appellant explains 5 of the 8 emails (see above) have been disclosed to her under FOIA and so to the world at large on the basis that NHSE did not seek to maintain any exemption in respect of those emails. [para 1 (iii) C523]. These are Emails 1- 4 and 6. Emails 5, 7 and 8 remain withheld and therefore disputed. NHSE maintained that emails 7 and 8 are exempted under section 36 and email 5 has always been, and remains, redacted.

The Tribunal appreciate and acknowledge the change of circumstances since the Commissioners investigation and Decision Notice (“DN”). The course and sequence of events in the appeal have resulted in extensive further disclosure and a significant narrowing of the issues between the parties resulting in a simplified list of outstanding issues for Tribunal to consider.

Notably, the Appellant now takes no material issue with the Public Authority’s searches and where appropriate and relating to other data subjects, does not challenge NHSE’s reliance on the exemptions under s.40 or s.41 FOIA. NHSE maintains that s40 does apply to other individuals who are named, and whose roles/contact details are included, within the withheld information – that information has been redacted since the earliest stages of the Appeal and are now accepted by the Appellant as not required/within scope of the request.

The Tribunal find the Qualified Person’s Opinion (“QPO”) was sought on a similar, narrower request of 6 Jan 2023 and given on 10 January 2023. A QPO was sought again 26 May 2023 and granted 5 June 2023. The only extant QPO at the time of the response to the Freedom of Information (“FOI”) request was the one given on 10 January 2023.

The Tribunal Panel discussed whether the QPO was a substantively reasonable one, applying Malnick (IC v Malnick and ACOBA [2018] UKUT 72 (AAC); [2018] AACR 29 at [56]).

The application of an earlier QPO (originally provided for an earlier request with a narrower scope) was one which the Panel found difficult. The Panel observed that it would generally be undesirable to have a blanket QPO or QPO’s which were being redeployed for new requests. As the scope of the earlier request was narrower, there was a question as to whether the QPO was valid for a wider request. In this case there was a significant overlap in scope and effectively the same application of section 36 (b) (ii). A QPO was sought again on 26 May 2023 and given on 5 June 2023 and was consistent with the original QPO. Whilst considering the validity of the QPO, the Tribunal had in mind the fact that exemptions may be adduced late, even after Tribunal proceedings have commenced (Birkett v. Defra[2011] EWCA Civ 1606 GIA/2098/2010). The Panel reminded itself that the question for the Tribunal was whether the QPO was substantively reasonable and not whether it was procedurally reasonable.

The Panel concluded that the opinion was reasonable in the Malnick sense. We agreed with the analysis in paragraph 29 of the Skeleton argument from NHSE dated 9 January 2025 that: ‘Ms. Pritchard was entitled to reach the view that premature disclosure of the relevant information would be likely to cause prejudice to an ongoing deliberative process on a highly sensitive topic.’

The Panel considered that the time at which the Public Interest Balance Test (“PIBT”) fell to be assessed was the time of refusal (and not the time of the internal review), following the Upper Tribunal in the case of Montague (Montague v IC DIT [2022] UKUT 104 (AAC) at [47] – [90]).

The Panel concluded that the Commissioner had considered the relevant arguments on both sides of the PIBT and had been correct to decide that the PIBT fell in favour of non-disclosure. The Tribunal did take into account that the integrity of the process had been called into question and that there was a public interest in whether or not the process had been carried out correctly. However, the Tribunal concluded that the arguments regarding the chilling effect and the safe space were particularly strong given the sensitive nature of the subject matter.

Everything which is withheld on the basis of section 36 in the closed bundle may continue to be withheld.

There is no need to apply section 40 separately where s.36 already applies as everything is withheld already.

We concluded that where section 36 is engaged, it is engaged for the entire email chain and any attachments, so no separate analysis is required. We reached this conclusion on the basis that section 36 (b) (ii) protects the process and needs to be applied in a holistic manner.

We only analysed the application of section 40 where section 36 had not been applied. This meant we looked at the section 40 redactions for the following items in the updated closed bundle (160125): - Email 1 (pdf page 99) , Email 2 (pdf page114), Email 3 (pdf page 175), Email 4 (pdf page 202) and Email 6 (pdf page 266).

Most section 40 redactions had been accepted by the Appellant as valid. The redactions relating to one individual were still disputed at the time of the final hearing. The identity of that individual had been disclosed only to the Appellant (for the purposes of the proceedings only and not under FOIA).

The Tribunal looked at whether the information redacted under section 40(2) was personal data. We concluded that the name of an individual was personal data and that a small reference to health information was personal data. However, we had regard to that fact that the concept of personal data is construed broadly (including the recent case of Ashley (Ashley v The Commissioners for His Majesty’s Revenue and Customs [2025] EWHC 134 (KB)). We felt that where the information was just identifying this person as the sender or receiver of an email which was entirely professional and revealed nothing about the individual personally, the information in an email could not be viewed as personal data. However, in case we are wrong on that, we treated all the information subject to section 40 redactions as personal data and then applied the legitimate interest test to it. Our conclusion was that (with the exception of a small incidental personal reference) the information which was claimed to be the personal data of one individual should be disclosed. We have provided the detailed reasons we came to this conclusion in a closed decision as an annex to this Open Decision as to do otherwise might inadvertently disclose the identity of an individual and frustrate any potential appeal.

Where no other exemption has been applied, section 40 redactions should be unredacted and disclosed under FOIA.