Case Reference: FT/EA/2024/0231
Information Rights
Decided without a hearing
Before
JUDGE SOPHIE BUCKLEY
MEMBER PIETER DE WAAL
MEMBER DR AIMEE GASSTON
Between
GEORGE GREENWOOD
Appellant
and
(1) INFORMATION COMMISSIONER
(2) HOME OFFICE
Respondents
Decision:
1. The appeal is allowed in part.
Substituted Decision Notice:
Organisation: The Home Office
Complainant: George Greenwood
The Substitute Decision – IC-271744-Y4X4
1. For the reasons set out below:
a. The Home Office was not entitled to rely on section 36 of the Freedom of Information Act 2000 (FOIA) to withhold the requested information.
b. The Home Office was entitled to rely on section 40(2) FOIA to withhold the name of a Home Office official.
c. The Home Office was entitled to rely on section 23(1) FOIA to withhold information A and information B identified in the closed annex.
d. The Home Office was not entitled to rely on section 23(1) FOIA to withhold information C identified in the closed annex.
2. The Home Office must disclose to George Greenwood the requested information, redacted to withhold information A and B and the name of the Home Office official, within 35 calendar days of the date that this decision is sent to the parties by the Tribunal.
3. Any failure to abide by the terms of the tribunal’s substituted decision notice may amount to contempt which may, on application, be certified to the Upper Tribunal.
REASONS
Introduction
This is an appeal against the Commissioner’s decision notice IC-271744-Y4X4 dated 11 June 2024 which held that the Home Office was entitled to rely on section 36(2)(b)(i) and (ii) of the Freedom of Information Act 2000 (‘FOIA’) to withhold the requested information.
This decision contains a closed annex. The closed annex identifies the specific text that the tribunal has determined can or cannot be withheld under section 23. It contains very brief closed reasoning on section 23. A copy of the closed annex has been sent to the Commissioner and the Home Office. It has been withheld from Mr Greenwood. It is necessary to withhold the annex from Mr Greenwood because otherwise the purpose of the appeal would be defeated.
Factual background
On 30 November 2022 the then Home Secretary commissioned Nick Timothy, former Home Office and Number 10 advisor, to provide her with a report on how the Home Office functions and on how to ensure the Home Secretary is served effectively. Nick Timothy was appointed as an independent consultant working directly to the Home Secretary.
The terms of reference set out in the report are as follows:
The Post Holder will be appointed as an Independent Consultant working directly to the Home Secretary. At the end of their tenure, they will report to the Home Secretary with recommendations to ensure the Home Secretary is served effectively, and that the Department is set up to succeed.
Specifically, the postholder will be responsible for:
Advising on improvements to the structures and systems which support Home Secretary decision making Secretary making
Reflections on how to improve the delivery system and structures within the Home Office to maximise successful delivery of Home Secretary and government priorities
Recommendations to ensure the Home Secretary’s time is used efficiently and effectively
Suggesting improvements to ways of working within private office and the wider Ministerial team
The post holder will not advise on policy or specific operational delivery. The post holder will have access to HO email and IT for the purposes of conducting this work. The post holder will be expected to meet with relevant officials, Ministers and Special Advisors. They will be supported for the purposes of progressing this work. The Post Holder may attend relevant meetings with the Home Secretary provided they hold appropriate security clearance.
The post holder will not directly commission the department for advice.
Although there is no reference to the advice being provided in private in the terms of reference in the report itself, we accept the evidence of Tom Mottershead, Principal Private Secretary to the Permanent Secretaries that when the terms of reference were ‘circulated’ on 12 December 2022 they also included the following:
The role does not involve interaction with awarding contracts or grants, or otherwise directing public resources.
The advice provided by the role will be provided in private.
In the course of drafting the report Nick Timothy met with relevant officials, ministers and Special Advisors to seek their views on the Home Office and its related bodies.
The final report was delivered to the then Home Secretary in March 2023 and was shared with the Permanent Secretary and an advisor in 10 Downing Street. With the agreement of the Home Secretary the report was ‘tightly held’ within government and was subsequently shared only with four other officials in the strategy directorate who were overseeing the implementation of the report.
The Home Office created a derivative document, which had a less limited circulation called ‘the Tracker’. Recommendations on the Tracker were only shared with approximately 18 relevant members of the executive committee (the department’s senior management team). Tom Mottershead kept a hard copy of the report in a private locked cabinet. When a member of the executive committee required access to wording in the report itself, Tom Mottershead would personally show them the relevant section only.
The report by Nick Timothy was referred to in the Sunday Times on 19 August 2023 in the following terms:
A report into the failings of the Home Office was commissioned by Sunak last year from Nick Timothy, who was a senior aide to Theresa May and is now the Tory parliamentary candidate for West Suffolk. The report was handed over in the spring but has never seen the light of day. It has only been seen by the prime minister, the home secretary, a tight circle of Sunak’s aides plus Rycroft and his most senior lieutenants.
On immigration, he recommended that the different agencies become far more directly accountable and work together in a clearer command structure, with senior officials made accountable for problems. The plans are now being implemented.
It is clear from that report in the Sunday Times that concerns have been expressed by external and internal sources about significant structural and other issues impacting upon the effective operation of the Home Office as a department.
At the time of responding to the request on 27 September 2023 the Home Secretary who commissioned the report was still in post, and the Home Office was still working through the recommendations in the report. Once the Home Secretary had left her post the Home Office ceased the programmatic monitoring of the report, but many of the recommendations have informed the Home Office’s overall approach to departmental direction and supporting ministers.
Request
On 21 August 2023 George Greenwood made the following request:
Please provide a copy of the report completed by Nick Timothy into Home Office ‘structures and systems’ as referenced in the below Sunday Times article.
[link]
The Home Office responded on 27 September 2023. It confirmed that it held information but withheld it under section 36(2)(b)(i) (inhibition to the free and frank provision of advice) and (ii) (inhibition to the exchange of views for the purposes of deliberation) FOIA. The Home Office upheld its position on internal review.
During the course of the Commissioner’s investigation the Home Office relied in addition on sections 23(1) and 40(2) FOIA.
Decision Notice
In a decision notice dated 11 June 2024 the Commissioner decided that the Home Office was entitled to rely on section 36(2)(b)(i) and (ii).
The Commissioner was satisfied that the Home Secretary was authorised as the qualified person for the purpose of section 36.
The Commissioner considered that the submission that was put to the qualified person summarised the reasons for applying sections 36(2)(b)(i) and (ii) and the qualified person had access to the withheld information. The Commissioner was satisfied that the submission included a clear overview of the request and relevant arguments for, and against, the application of the exemptions. He found that it was reasonable for the qualified person to reach the view that there was a need to protect the confidentiality of free and frank discussions and between officials and those they consult with for advice. He was further satisfied that the qualified person’s opinion that inhibition ‘would be likely to’ occur through disclosure of the withheld information was reasonable. He concluded that sections 36(2)(b)(i) and (ii) were engaged.
In relation to the public interest balance, the Commissioner considered that there is a presumption running through FOIA that openness is, in itself, to be regarded as something which is in the public interest. The disclosure of official information assists the public in understanding how public authorities make their decisions and carry out their functions, and this, in turn, fosters trust in them. Disclosure in this case would allow the public to scrutinise an external consultant's frank observations on the Home Office’s working practices, and his recommendations as to how areas of weakness and underperformance he had identified, could be addressed. The question to be considered is whether the public interest is better served by permitting such public scrutiny, or by protecting the integrity of high level advisory and decision-making processes.
The Commissioner considered that the opinion of the Home Secretary that inhibition would be likely to occur carried considerable weight when balancing the public interest. He said that the Home Secretary had the requisite knowledge of departmental decision-making processes of the information in scope (having commissioned the report) and the likely consequences of any disclosure to make that assessment.
The Commissioner also considered the timing of the request. He accepted that public officials are expected to be impartial and robust when giving advice, but said that safe space arguments cannot be dismissed out of hand, and may be particularly relevant if the issue underpinning the request was ‘live’. He said that in this case the request was made five months after the completion of the report while its observations and recommendations were still being considered. He noted that the Home Office maintained that it needed a safe space in which to consider, debate, and reach decisions about the report away from external interference and distraction.
The Commissioner accepted that the disclosure of candid observations and recommendations, obtained as a result of free and frank discussions between the author and stakeholders, would be likely to have a chilling effect on the willingness of stakeholders to engage openly and honestly in the future. As a result he said that the quality of advice received by the Home Office would be likely to be diminished and the quality of its decision making impaired.
In considering the severity and extent of the inhibition, the Commissioner afforded weight to the public interest in avoiding harm to deliberation and decision making processes. He held that there was a clear public interest in Home Office officials having the freedom and space to thoroughly explore all options when considering recommendations on important matters.
Taking account of the purposes of the exemption and the magnitude of the Home Office’s responsibilities that require it to function as effectively as possible, on balance the Commissioner considered the public interest in protecting good decision making to be more compelling than permitting public scrutiny of the report.
The Commissioner did not consider it viable to disclose a redacted version of the report. He considered that the report was relatively brief and composed of observations and recommendations that attract the exemptions in question. He took the view that there was no other non-exempt information that could be disclosed.
Grounds of appeal
The grounds of appeal are that the Decision Notice was wrong because the Commissioner struck the wrong balance when carrying out the public interest test.
In particular Mr. Greenwood submitted that:
While a very limited amount of highly specific information might be exempted, the report was a high level assessment of systematic failures in the Home Office and how these can be addressed. It is highly unlikely that the disclosure of this kind of document would cause meaningful harm by reducing the quality of advice the Home Office receives on granular matters.
The public interest in upholding the right to know and in Mr. Greenwood obtaining the document for public interest accountability reporting as an investigative journalist outweighs any very minor risk of prejudice to the Home Office’s ability to obtain frank advice.
Mr. Greenwood does not challenge the engagement of section 36 and does not argue that the Home Secretary’s opinion was irrational.
The Commissioner’s response
The Commissioner submitted that the relevant date for consideration of the public interest test was 20 September 2023, 20 working days following the receipt of the request.
In general, the Commissioner relied on his decision notice. The Commissioner made the following specific points on the public interest:
FOIA is generally applicant and motive blind and therefore Mr. Greenwood’s role as a journalist is not relevant to the public interest test.
The Home Office’s arguments are not generic. The Home Office’s submissions to the Commissioner dated 6 June 2024 refer to specific content of the report by identifying parts that it considered to be free and frank exchange of views and recommendations for further consideration by the Home Secretary.
Disclosure of the report would not reveal whether action had been taken in response. The Home Office may be held accountable for not taking action without disclosure of the report.
The Commissioner submits that the assessment of the likely consequences of disclosure is a matter of predictive judgment. Specialist public bodies such as the Home Office have experience and expertise in their fields, and it is entirely legitimate to accept their informed views, if the Commissioner considers it appropriate to do so on the basis of the submissions provided and the content of the Report itself.
The Commissioner submits that neither the Institute of Government Report nor the crime statistics tip the balance in favour of disclosure.
The Commissioner reached his decision having carefully considered the remit and content of the Report both during his investigation and in light of Mr Greenwood’s public interest arguments on appeal. The Commissioner maintains that the public interest balance favours the non-disclosure of the report for the reasons contained in the Decision Notice and the Home Office’s submissions to the Commissioner.
The Commissioner maintains that the report was relatively recent at the time of the request and the Home Office required sufficient time to properly consider and debate the report’s contents without getting unduly side-tracked.
The Commissioner gave appropriate weight to transparency and accountability: significant but not such as to outweigh the prejudice caused by disclosure.
The question is not whether the author of the report would be less likely to provide advice in future, but whether disclosure might inhibit the process of providing advice and exchanging views from numerous individuals including ministers and officials.
In reply to the amended response the Commissioner noted the fact that the review’s recommendations were not longer actively considered post 13 November 2023. As this post-dates the relevant time (20 September 2023) he said that it was not relevant to the public interest test.
Mr Greenwood’s reply
Mr Greenwood said that he would not oppose limited redactions but suspects that much more of the document can be released.
Mr Greenwood submitted that his identity as a journalist and purpose in making the request adds significant weight to the public interest. The request has the purpose of holding a troubled government department to account as part of the public watchdog function of a journalist. He submitted that the applicant blind principle is routinely disregarded by government departments.
Mr Greenwood submitted that if the Home Office’s arguments were as strong as claimed, they should have been able to provide in open at least some clear explanation of specific harms the disclosure would cause.
Mr Greenwood said that it does not matter that information on whether decisions were taken in response to the report is not included. It is only with disclosure that he can do the research and reporting necessary to check this.
Mr Greenwood submitted that it is not clear how the Home Office ‘may be accountable’ without disclosure of the report.
Mr Greenwood argued that it is clear that the Home Office has not been functioning well even within the safe space it claims it needs. He strongly believes that transparency can contribute to a better functioning department.
He said that the fact that material on the functioning of the Home Office was produced after the relevant date is not material, as equivalent information was available on or before that date. He argued that such poor performance harms the public and is a result of institutional failure. More information in the public domain about how the Home Office deals with advice about institutional failure would clearly serve the public interest in transparency.
The Home Office’s response (as amended)
The Home Office understood that Mr Greenwood accepts that sections 36(2)(b)(i) and (ii) are engaged but argues that the minimal prejudice disclosure would cause is outweighed by the public interest in disclosure, and it responded on that basis.
The Home Office accepted the general public interest in openness and transparency in government and that this may serve to increase public trust. It accepted that the Home Office is a great office of state and its responsibilities are among the most serious in government, with potentially invasive and often sensitive and controversial powers. It accepted the public interest in matters related to the effectiveness of the working of the Home Office and that a degree of courage and fortitude is to be expected of its officials.
The Home Office submitted that against that must be weighed the following.
First, the review is effectively advice and concerns the free and frank exchange of views, provided in a safe space context. The Home Office maintained that officials/consultants will be less likely to provide free and frank advice if there is a risk that their advice will be disclosed pursuant to a FOIA request, which would diminish the value of their advice and prejudice the effectiveness of the Home Office. The Commissioner was correct to give this significant weight.
Second at the point of the FOI request, the review, dated 3 March 2023, had been produced fairly recently and the Home Office required further time to properly consider its contents and recommendations without external distraction, which the Home Office considered would be likely to follow disclosure. It was argued that hinderance/interference with the work of officials considering the report’s recommendations would in itself be contrary to the public interest.
For the avoidance of doubt the Home Office confirmed that Home Secretary left her post on 13 November 2023 and the reviews recommendations were no longer actively considered and programmatically tracked after that date.
In relation to section 23 the Home Office said that the basis for reliance on section 23 is addressed in witness evidence.
The Home Office confirmed that it relied on section 40 to exempt the disclosure of the name of a single junior Home Office official. The Home Office maintained that junior officials have a legitimate expectation that their names will not be released in response to FOIA requests, there is no legitimate interest in disclosure of the official’s name, and that disclosure would be unlawful and unfair.
Mr Greenwood’s reply
Mr Greenwood submitted:
The safe space argument remains in highly generic terms.
The Home Office has had more than 18 months to consider the recommendations.
The tribunal should assess critically whether the Home Office is correct in its assessment that information was supplied by a body specified as a security body under FOIA.
He had no issue with a genuinely junior Home Office official having their identity redacted. This would not include officials with significant decision-making powers or significant influence. The tribunal was invited to assess critically whether the official in question was genuinely junior taking into account R (IAB) v Secretary of State for the Home Department [2024] EWCA Civ 66 which held that there was no automatic right to redaction in judicial review proceedings, unless there are ‘good and specific reasons’ for doing so.
In reply to the amended response, he submitted that if the proposals were no longer under active consideration, the public interest in transparency was even stronger given the much more limited harm to current policy formulation processes that could come from disclosure.
The law
Section 36 provides in material part that:
36 Prejudice to effective conduct of public affairs
This section applies to—
information which is held by a government department … and is not exempt information by virtue of section 35, and
…
Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act…
would, or would be likely to, inhibit—
the free and frank provision of advice, or
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.
It is for the tribunal to assess whether the qualified person’s (QP’s) opinion that any of the listed prejudices/inhibitions would or would be likely to occur is reasonable, but that opinion ought to be afforded a measure of respect: Information Commissioner v Malnick [2018] UKUT 72 (AAC), [2018] AACR 29 at paragraphs 28-29 and 47.
In relation to ‘chilling effect’ arguments, the tribunal is assisted by the following paragraphs from the Upper Tribunal decision in Davies v IC and The Cabinet Office [2019] UKUT 185 (AAC):
“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 be treated with some caution. In Department for Education and Skills v Information Commissioner and Evening Standard EA/2006/0006, the First-tier Tribunal commented at [75(vii)] as follows:
“In judging the likely consequences of disclosure on officials’ future conduct, we are entitled to expect of them the courage and independence that has been the hallmark of our civil servants since the Northcote-Trevelyan reforms. These are highly-educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions. The most senior officials are frequently identified before select committees, putting forward their department’s position, whether or not it is their own.”
26.Although not binding on us, this is an observation of obvious common sense with which we agree. A three judge panel of the Upper Tribunal expressed a similar view in DEFRA v Information Commissioner and Badger Trust [2014] UKUT 526 (AC) at [75], when concluding that it was not satisfied that disclosure would inhibit important discussions at a senior level:
“75. We are not persuaded that persons of the calibre required to add value to decision making of the type involved in this case by having robust discussions would be inhibited by the prospect of disclosure when the public interest balance came down in favour of it...
...They and other organisations engage with, or must be assumed to have engaged with, public authorities in the full knowledge that Parliament has passed the FOIA and the Secretary of State has made the EIR. Participants in such boards cannot expect to be able to bend the rules.”
In Department of Health v Information Commissioner and Lewis [2015] UKUT 0159 (AAC), [2017] AACR 30 Charles J discussed the correct approach where a government department asserts that disclosure of information would have a “chilling” effect or be detrimental to the “safe space” within which policy formulation takes place, as to which he said:
“27. ...The lack of a right guaranteeing non-disclosure of information ...means that that information is at risk of disclosure in the overall public interest ... As soon as this qualification is factored into the candour argument (or the relevant parts of the safe space or chilling effect arguments), it is immediately apparent that it highlights a weakness in it. This is because the argument cannot be founded on an expectation that the relevant communications will not be so disclosed. It follows that ... a person taking part in the discussions will appreciate that the greater the public interest in the disclosure of confidential, candid and frank exchanges, the more likely it is that they will be disclosed...
28. ...any properly informed person will know that information held by a public authority is at risk of disclosure in the public interest.
29. ... In my view, evidence or reasoning in support of the safe space or chilling effect argument in respect of a FOIA request that does not address in a properly reasoned, balanced and objective way: (i) this weakness, (ii) the public interest in there being disclosure of information at an appropriate time that shows that the robust exchanges relied on as being important to good decision making have taken place, and (iii) why persons whose views and participation in the relevant discussions would be discouraged from expressing them in promoting good decision making and administration and thereby ensuring that this is demonstrated both internally and when appropriate externally, is flawed.”.
28.Charles J discussed the correct approach to addressing the competing public interests in disclosure of information where section 35 of FOIA (information relating to formulation of government policy, etc) is engaged. Applying the decision in APPGER at [74] – [76] and [146] – [152], when assessing the competing public interests under FOIA the correct approach includes identifying the actual harm or prejudice which weighs against disclosure. This requires an appropriately detailed identification, proof, explanation and examination of the likely harm or prejudice.
29.Section 35 of FOIA, with which the Lewis case was concerned, does not contain the threshold provision of the qualified person’s opinion, but these observations by Charles J are concerned with the approach to deciding whether disclosure is likely to have a chilling effect and we consider that they are also relevant to the approach to an assessment by the qualified person of a likely chilling effect under section 36(2) and so to the question whether that opinion is a reasonable one.
30.Charles J said at [69] that the First-tier Tribunal’s decision should include matters such as identification of the relevant facts, and consideration of “the adequacy of the evidence base for the arguments founding expressions of opinion”. He took into account (see [68]) that the assessment must have regard to the expertise of the relevant witnesses or authors of reports, much as the qualified person’s opinion is to be afforded a measure of respect given their seniority and the fact that they will be well placed to make the judgment under section 36(2) – as to which see Malnick at [29]. In our judgment Charles J’s approach in Lewis applies equally to an assessment of the reasonableness of the qualified person’s opinion as long as it is recognised that a) the qualified person is particularly well placed to make the assessment in question, and b) under section 36 the tribunal’s task is to decide whether that person’s opinion is substantively reasonable rather than to decide for itself whether the asserted prejudice is likely to occur. Mr Lockley agreed that the considerations identified by Charles J were relevant. We acknowledge that the application of this guidance will depend on the particular factual context and the particular factual context of the Lewis case, but that does not detract from the value of the approach identified there.”
Section 36 is not an absolute exemption.
Section 23
Section 23, which creates an absolute exemption, provides as follows:
“23 (1) Information held by a public authority is exempt information if it was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).
(2) A certificate signed by a Minister of the Crown certifying that the information to which it applies was directly or indirectly supplied by, or relates to, any of the bodies specified in subsection (3) shall, subject to section 60, be conclusive evidence of that fact.
(3) The bodies referred to in subsections (1) and (2) are—
(a) the Security Service,
(b) the Secret Intelligence Service,
(c) the Government Communications Headquarters,
(d) the special forces,
(e) the Tribunal established under section 65 of the Regulation of Investigatory Powers Act 2000,
(f) the Tribunal established under section 7 of the Interception of Communications Act 1985,
(g) the Tribunal established under section 5 of the Security Service Act 1989,
(h) the Tribunal established under section 9 of the Intelligence Services Act 1994,
(i) the Security Vetting Appeals Panel,
(j) the Security Commission,
(k)the National Criminal Intelligence Service, F1. . .
(l) the Service Authority for the National Criminal Intelligence Service.
(m) the Serious Organised Crime Agency.
(n) the National Crime Agency.
(o) the Intelligence and Security Committee of Parliament.
The relevant parts of section 40 of FOIA provide:
Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject.
Any information to which a request for information relates is also exempt information if –
It constitutes personal data which does not fall within subsection (1), and
either the first, second or the third condition below is satisfied.
(3A) The first condition is that the disclosure of the information to a member of the public otherwise than under this Act -
would contravene any of the data protection principles, or…
Personal data is defined in section 3 of the Data Protection Act 2018 (DPA). The definition of ‘personal data’ consists of two limbs:
Whether the data in question ’relates to’ a living individual and
Whether the individual is identified or identifiable, directly or indirectly, from those data.
The data protection principles are set out in Article 5(1) of the UKGDPR and ss 35-40 DPA. Article 5(1)(a) UKGDPR provides that personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject. Article 6(1) UKGDPR provides that processing shall be lawful only if and to the extent that at least one of the lawful bases for processing listed in the Article applies.
The only potentially relevant basis here is article 6(1)(f):
Processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which requires protection of personal data, in particular where the data subject is a child.
The case law on article 6(1)(f)’s predecessor established that it required three questions to be answered, which we consider are still appropriate if reworded as follows:
Is the data controller or a third party pursuing a legitimate interest or interests?
Is the processing involved necessary for the purposes of those interests?
Are the above interests overridden by the interests or fundamental rights and freedoms of the data subject?
Lady Hale said the following in South Lanarkshire Council v Scottish Information Commissioner [2013] 1 WLR 2421 about article 6(f)’s slightly differently worded predecessor:
“27. ... It is well established in community law that, at least in the context of justification rather than derogation, ‘necessary’ means ‘reasonably’ rather than absolutely or strictly necessary .... The proposition advanced by Advocate General Poiares Maduro in Huber is uncontroversial: necessity is well established in community law as part of the proportionality test. A measure which interferes with a right protected by community law must be the least restrictive for the achievement of a legitimate aim. Indeed, in ordinary language we would understand that a measure would not be necessary if the legitimate aim could be achieved by something less. ... “
Section 40(3A) is an absolute exemption and therefore the separate public interest balancing test under FOIA does not apply.
In Secretary of State v R(IAB and others) [2024] EWCA Civ 66 the Court of Appeal held that defendants in judicial review proceedings do not fulfil their duty of candour if (save for good and specific reasons) they disclose documents with redactions of the names of civil servants (paragraph 36). The Court of Appeal observed at paragraph 24 that ‘(o)rdinary civil litigation is very different from proceedings in the Administrative Court. There is no duty of candour equivalent to that imposed on public bodies defending judicial review claims’.
The role of the tribunal
The tribunal’s remit is governed by section 58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.
List of issues
In the reasonable opinion of a qualified person would disclosure, or would disclosure be likely to:
inhibit the free and frank provision of advice or the free and frank exchange of views for the purposes of deliberation?
Does the public interest in maintaining the exemption outweigh the public interest in disclosure?
Section 40(2)
Is any of the withheld information the personal of data of a ‘junior official’ (i.e. an official without significant decision-making powers and without significant influence? If so, Mr Greenwood accepts that it can be withheld under section 40(2).
If not, does any of the withheld information relate to an identifiable individual?
If so:
Is the requestor pursuing a legitimate interest or interests?
Is the processing involved necessary for the purposes of those interests?
Are the above interests overridden by the interests or fundamental rights and freedoms of the data subject?
Section 23
Was any of the withheld information directly or indirectly supplied to the Home Office by, or does it relate to, any of the bodies specified in subsection 23(3) FOIA?
Evidence
The tribunal considered an open bundle and a closed bundle.
The open bundle included a redacted witness statement from Tom Mottershead, Principal Private Secretary to the Permanent Secretaries in the Home Office Strategy Directorate.
The closed bundle contained the withheld information (the report) and a closed, unredacted, version of the statement of Tom Mottershead. The tribunal was satisfied that it was necessary to withhold the closed bundle from Mr Greenwood in order to avoid defeating the purpose of the proceedings.
In his statement Mr Mottershead set out the factual background to the report which we adopted above. In relation to the effects of disclosure Mr Mottershead gave the view that disclosing the report would cause significant prejudice. He stated that the report is, in its entirety, advice commissioned by the Home Secretary from an external consultant, who relied on the frank exchange of views of Home Office officials in the course of its drafting. The report includes recommendations for further consideration by the Home Secretary.
Mr Mottershead said that the report was commissioned as an expressly private report from an external consultant. It is wide-ranging and comments on every area of the Home Office. He said that the author and those interviewed provided their views on the understanding that they were doing so on a confidential basis. He identified parts of the report that he said contained free and frank expressions of views by officials on particular areas of work of the Home Office. Mr Mottershead said that disclosure of the report would mean that individuals who had commented on the Report are, or are seen to be, the same individuals working on those same issues currently.
Mr Mottershead said that if the Home Office is not capable of protecting these types of sensitive opinions from public disclosure, officials will be less likely to provide frank views the next time they are asked. This impacts the Home Office’s ability to improve systems and structures. This impact would be particularly serious given the critical public services that the Home Office runs and oversees.
Mr Mottershead said that the report presents only one view of the Home Office at a moment in time and was only one of many outputs considered when making decisions about how the Home Office was run. Disclosure of the report would present an inaccurate view of the totality of advice provided at the time.
Mr Mottershead said that it was essential that the Home Secretary receives open and frank advice on what may be controversial topics. He said that if officials were reticent to provide advice, or their feedback was not free and frank this would impair the quality of decision making in relation to working practices within the Home Office.
In relation to redacting the report, Mr Mottershead said that of the 124 paragraphs in the report, 32 either explicitly quote from officials or are indirectly attributed to advice from officials. As the report does not separate the recommendations and observations that come from those the author has interviewed and those that come from the author’s own experience, Mr Mottershead said that the report should be withheld in full.
In relation to section 23, Mr Mottershead identified, in the closed version of his statement, the information that the Home Office said fell under section 23.
In relation to section 40(2) Mr Mottershead said that the redacted name was a junior Home Office official who provided administrative support to the project, who did not have a public facing role.
Discussion and conclusions
The relevant date
We agree with the Commissioner that the relevant date, for the purposes of assessing the application of section 36 and the public interest balance, is September 2023. We note that the Commissioner asserts that the relevant date is, at the latest, the statutory deadline for responding rather than the date of the response but it makes no material difference in this appeal.
Was the qualified person’s opinion reasonable?
The qualified person in this case is the Home Secretary.
The tribunal’s task is to decide if the opinion of the qualified person is substantively reasonable, rather than deciding for itself whether the asserted prejudice is likely to occur. When deciding whether the opinion is substantively reasonable, we note that the qualified person is particularly well-placed to make the assessment in question.
The considerations identified by Charles J are relevant to the question of the reasonableness of the qualified person’s opinion on the likely chilling effect of disclosure, including the adequacy of the evidence base for the arguments founding expressions of opinion and whether there is an appropriately detailed identification, proof, explanation and examination of the likely harm and prejudice.
The record of the qualified person’s opinion is an email from ‘PS.HomeSecretary’ which states:
All, the Home Secretary and Permanent Secretary have reviewed and agree with the recommendation.
This email was sent in response to an email which states:
Please see the attached submission that invites the Permanent Secretary and Home Secretary to approve the application of FOI exemption 36(2) to prevent disclosure of the information requested by FOI applicant George Greenwood.
This relates to the Nick Timothy report which we plan to exempt in full.
The attached submission states that the qualified person’s opinion is being sought as to whether the exemption at sections 36(2)(b)(i) and (ii) are engaged ‘to withhold specified items of correspondence’, although it is clear from the remainder of the submission that it relates to the report in question.
The recommendation in the submission is:
That you indicate that you believe that the information described in this submission engages sections 36(2)(b)(i) and 36(2)(b)(ii) of the FOIA, because its disclosure would be likely to prejudice the effective conduct of public affairs in the way described.
The submission has two annexes, the FOI request and the proposed FOI response.
In the section entitled ‘discussion’ the author explains that the relevant sections of FOIA exempt information from release if disclosure of the information would or would be likely to inhibit the free and frank provision of advice or inhibit the free and frank exchange of views for the purposes of deliberation.
The submission states that the withheld report was received from the Permanent Secretary’s office and that disclosure would be likely to cause the specified inhibitions ‘because it would undermine the effective conduct of public affairs.’
The submission then specifies that the author considers that prejudice would be likely to occur rather than would occur.
The submission then goes on to explain that if the exemption is engaged based on the qualified person’s opinion, Home Office officials will reach a final view on whether the public interest balance favours releasing or withholding the information. The submission states ‘while there is a public interest in transparency the preliminary view reached by officials is that the public interest favours withholding the information because it would not be in the public interest to cause the prejudice described above’.
The proposed FOI response sets out the arguments against disclosure ‘in terms of the public interest test’ as follows:
We believe the future provision of free and frank advice and the free and frank exchange of views would be impacted if officials and ministers believed that their discussions and correspondence would be subject to disclosure under the FOIA soon afterwards. This would have a limiting and negative effect on the quality of internal and external discussion and decision-making in future and on the quality, honesty and comprehensiveness of advice to ministers, which would not be in the public interest.
Although the report was not attached we infer that the Home Secretary would have been familiar with its contents.
Although the email confirming the qualified person’s opinion is brief and devoid of reasoning, it indicates that the qualified person had ‘reviewed and agreed the recommendation’. Given the terms of the recommendation set out above, we accept that the qualified person had formed the necessary opinion.
Although we have reservations about the lack of reasoning in support of the qualified person’s opinion, as expressed below, we accept that the opinion was substantively reasonable given the seniority of the qualified person, her likely familiarity with the contents of the report and the free and frank expressions of views contained in the report.
On that basis we find that the exemption is engaged.
Public interest balance
In balancing the competing public interests we must give appropriate weight and consideration to the opinion of. the Home Secretary and Tom Mottershead who have significant institutional expertise.
We are guided in our approach by paragraphs 233-235 of Cabinet Office v ICO[2025] UKUT 114.
In this case, the weight that we would ordinarily have attached to an opinion of the Home Secretary is reduced. This is because there is a lack of detail and specificity in the submission to the Home Secretary, making it difficult to understand the basis for the opinion. There is no reference to the contents of report. The arguments in the submission are generic.
Further the safe space/chilling effect argument in the submission does not address, and certainly not in a properly reasoned, balanced and objective way, with reference to the withheld information, why persons would be discouraged from expressing their views or participating in discussions in the interests of promoting good decision making and administration and thereby ensuring that this is demonstrated both internally and when appropriate externally.
The information and the reasoning is addressed in significantly more detail in the witness statement. We accept the institutional experience of Tom Mottershead, although this is not an area where a precautionary approach is needed, i.e. this is not a case dealing with potential threats to national security or public safety where decisions must be based on inherently uncertain assessments of the future and which requires that such assessments must be made by the executive, which is infinitely more qualified to form an authoritative opinion on such issues than a domestic judge.
In our view, although we place appropriate weight on the views of Tom Mottershead, this is not a case in respect of which the tribunal cannot claim any competence and where only exceptional circumstances would justify judicial interference. It is, in our view, a case based on factors on which the tribunal has the evidence, the experience, the knowledge and the institutional legitimacy to be able to form our own view with confidence.
The exemptions in section 36(2)(b)(i) and (ii) are primarily concerned with protecting the processes of providing advice and deliberation and ensuring that these are not unduly inhibited. There is a strong and important public interest in providing and protecting the safe space which allows officials to have such discussions and exchanges. Where information relates to discussions and exchanges about a particular issues that are still ongoing, public interest arguments as to the chilling effect on that particular process have weight and relevance. See the observations of the Commissioner agreed with by the Upper Tribunal at paragraph 168 of Cabinet Office v ICO[2025] UKUT 114.
The content and sensitivity of the withheld information has a bearing on both sides of the public interest balance. The withheld information consists of frankly expressed opinions both by the report writer and those with whom he consulted and of candid and frank advice given by the report writer. That is reflected in the steps that the Home Office took to preserve confidentiality internally and the fact that the terms of reference provided that the advice was to be provided ‘in private’. We accept that officials gave their views on the basis that they were doing so on a confidential basis, in the sense that they would not be identified in the report. That increases the value of the safe space.
It is also important that officials are able to express views freely and frankly for the purposes of a report of this nature, particularly where the department in question is the Home Office. That also increases the value of the safe space.
We note that the views of officials that are recorded in the report are not attributed to named individuals. Tom Mottershead’s evidence at paragraph 18 of his witness statement was that ‘The disclosure of the Report would mean that individuals who had commented on the report are, or are seen to be, the same individuals working on those same issues currently.’ Having read the report carefully, we are not persuaded on the basis of this broad statement that any specific comment in the report can be attributed to any specific identifiable individual. That reduces, in our view, the likelihood of disclosure causing a ‘chilling effect’ on the willingness of officials to input, on a similarly frank basis, into similar reports in the future.
In any event, where officials are asked, as part of their role as public servants, to take part in any future consultation about how their department functions, which they know will inform the preparation of a report making recommendations for change, it is in our view highly unlikely that those public servants will be anything other than frank and honest, particularly where they are aware that comments and views would not be attributed to named individuals. Particularly in a department such as the Home Office, those public servants would be aware of the consequences of a poorly functioning department for the country as a whole, and we take the view that they would, in those circumstances, be highly likely to do their job properly rather than temper their feedback through fear of publicity or internal reprisals.
Further, those officials would already be aware of the possibility of disclosure of this type of information held by the Home Office in response to a FOIA request, where the public interest favoured disclosure.
The author of the report is identifiable. However, in our view it is highly unlikely that an external consultant, instructed specifically to provide a report of such a nature, would be inhibited from providing frank advice on the basis that there was a risk of publication under FOIA.
The final report was delivered to the then Home Secretary in March 2023. To that extent the frank discussions and exchanges that informed the recommendations in the report had been completed. The process of providing free and frank advice was no longer live, nor was the process of the exchanging views between officials and the consultant for the purposes of deliberation.
We accept that the process of implementing some of those recommendations was still ongoing in September 2023 (albeit that the programmatic monitoring of the report ceased at a later date). We note that at paragraph 10 of his witness statement Tom Mottershead says that the report was delivered to the Home Secretary in March 2023 and shared with the Permanent Secretary and an advisor in No 10 Downing Street. It was then subsequently shared only with four officials in the strategy directorate who were ‘overseeing the implementation of the report’. At paragraph 12 of the witness statement Tom Mottershead says that in September 2023 the Home Office was ‘working through’ the recommendations, and that once the Home Secretary left post the Home Office ceased the ‘programmatic monitoring’ of the report.
By September 2023 the Home Office had had 6 months to discuss the recommendations and the contents of the report. Taking into account the passage of time, the ‘tracker’ that has been provided to the tribunal and the evidence in the witness statement highlighted above, we conclude that by late September 2023, 6 months after the report, it is likely that any live/ongoing work would have related implementation of the recommendations rather than the provision of advice, discussions or exchanges as part the consideration of the content or recommendations. We accept that there will remain a need for some discussions and exchanges as part of the implementation stage, but we find that there is less of a need for a safe space and less risk of distraction from the type of free and frank discussions and exchanges that are protected by section 36 once the process has moved from the production and consideration of the report and its recommendations on to the implementation of those recommendations by officials. On that basis we accept that there is some, but a relatively low, risk of that publication of the report in September 2023 would have caused the type or level of distraction asserted by the Home Office. In our view, by September 2023 any need for a safe space had reduced significantly.
Taking into account all the above, and according appropriate weight to the views of the Home Secretary and its witness, we accept that, overall, there remained a public interest in withholding the report in September 2023, but that public interest was limited for the reasons set out above.
On the other side of the balance, we find that there is a strong and important public interest in transparency in relation to the ways in which the Home Office is functioning and in relation to any independent review of whether it is functioning as it should. The matters contained in the report would add significant value to informed public debate about how the Home Office is and should be functioning and how it could be improved. Transparency is in our view particularly valuable given (a) the importance of the work of the Home Office and the consequences for individuals and the nation of that work not being done effectively and (b) the serious concerns about the functioning of the Home Office as a department which were highlighted in the media at the time and subsequently and in the report itself. Matters that came into the public domain at a later date are relevant to the extent that they shed light on the functioning of the Home Office at the relevant time.
We accept that the report does not contain the totality of advice provided to the Home Office at the time but the Home Office is able, if it wishes, to provide context or further explanation to the extent that it feels the report provides an inaccurate or incomplete picture. In the circumstances we do not accept that this diminishes the value of the report in providing transparency or informing public debate.
We accept that the report represents the view of one individual. That is clear from the report and will be clear to the public. In our view, given the terms of reference, the analysis contained in the report and the sources of information on which the views and recommendations are based, the report makes a very valuable contribution to transparency even though it represents the subjective advice or recommendations of one external consultant.
There is also, in our view, a strong and important public interest in accountability that would have been served by publication of the report in September 2023, 6 months after the report was produced. We accept that the publication of the report does not, in itself, reveal what action, if any, has been taken by the Home Office in response to the recommendations. It does allow the public, either on through individual interested members of the public or through journalists acting on behalf of the public, to identify specific recommendations and to challenge the Home Office on whether or not those recommendations have been adopted. Given the matters identified in the report and the amount of time that had passed between completion of the report and the request, there was in our view a very substantial public interest in accountability that would have been served by publication in September 2023.
For those reasons, we are satisfied that the strong and important public interest in disclosing the information outweighs the public interest in maintaining the exemption.
Section 40(2)
We accept that the redacted name is the name of a genuinely junior official without significant decision-making power or significant influence. In those circumstances the redaction is uncontested and we find that the Home Office is entitled to withhold the name under section 40(2).
Section 23(1)
There is additional closed reasoning in a closed annex in relation to this exemption. It is necessary to withhold this from Mr Greenwood to avoid defeating the purposes of the appeal.
We accept that one part of the information (information A), identified in the closed annex, was supplied to the Home Office by a security body. Information A is accordingly exempt under section 23(1) FOIA.
In relation to the remainder of the information withheld under section 23 we accept that most of it relates to bodies dealing with security matters. The specific parts of the information are identified in the closed annex and referred to as information B. Information B is also exempt under section 23(1).
We have determined that some of the information withheld under section 23 does not relate to bodies dealing with security matters. The evidence submitted by the Home Office does not explain the basis on which it is asserted that these parts of the text of the report ‘relate to’ bodies dealing with security matters. In our view it is plain that these particular parts of the text of the report do not relate to those bodies.
That information is identified in the annex as information C. That information is not exempt under section 23(1) and must be disclosed.
Signed Date:
Sophie Buckley 14 July 2025