The Cabinet Office v The Information Commissioner

This appeal is about whether the First-tier Tribunal in its decision of 10 June 2021 (“the FTT”) erred in law in allowing Mr Sheppard M.P.’s appeal by concluding on the evidence and arguments before it that the requested information did not engage the exemption in section 35(1)(a) of the Freedom of Information Act 2000 (“FOIA”). The consequence of the FTT’s decision was that the legal basis for the Cabinet Office refusing the request for information under FOIA was not made out. But for the Upper Tribunal suspending the effect of the FTT’s decision until these appeal proceedings concluded, the result of the FTT’s decision would have been the provision of the requested information.

What this appeal is not about is political questions concerning the merits or demerits of devolved settlements made with the constituent countries of the United Kingdom or whether any of those constituent countries should be independent nations. Nor was it argued as such.

This is the open decision on this appeal. A closed decision accompanies it, though it will only be issued to the Cabinet Office and the Information Commissioner.

The appeal arises from a request made by Mr Sheppard, M.P., to the Cabinet Office on 3 June 2019 in which he said:

The request was refused by the Cabinet Office on 1 July 2019 under section 35(1)(a) of FOIA. The Cabinet Office told Mr Sheppard that it held the requested information but “it is being withheld as it is exempt under section 35(1)(a) of the Freedom of Information Act 2000…, as it relates to the formulation or development of government policy”. The refusal letter continued:

This decision was upheld on review by the Cabinet Office, on 14 August 2019. The material parts of the review decision read as follows:

The second quoted paragraph in the review decision letter was written in response to an argument Mr Shepard had made when seeking the review, which he put as follows:

The point made by Mr Sheppard about the polling data relating to the UK Government’s settled policy of maintenance of the Union, and the Cabinet Office’s response about the polling relating to ongoing activity to support the development of that policy, in many ways encapsulates the key issue arising on this appeal.

Given its central importance to this appeal, it makes sense to set out section 35(1) of FOIA here.

the formulation or development of government policy,

Ministerial communications,

the operation of any Ministerial private office.”

The Information Commissioner, on a complaint by Mr Sheppard against the Cabinet Office’s decision to refuse his request, upheld the Cabinet Office’s decision, and Mr Sheppard appealed against the Information Commissioner’s decision to the First-tier Tribunal. Before turning to the FTT’s decision, it is worthwhile focusing in some detail on that complaint.

Mr Sheppard in making his complaint argued, inter alia, that:

On 3 September 2019 the Information Commissioner, as part of the investigation of the complaint, wrote to the Cabinet Office and asked it a number of questions. One set of questions related to “engaging the exemption” under section 35(1)(a) of FOIA and read, insofar as relevant, as follows:

The material parts of the Cabinet Office’s response, dated 9 October 2019, including passages which need to be redacted in this open decision, read as follows:

Even ignoring the redacted passages, this is not the most clearly written letter. In particular, significant parts of what is included under the sub-heading Public interest test appears on its face to be more concerned with the logically prior question of whether the requested information related to the formulation or development of government policy.

It is an important factual context to the appeal to the FTT that the Cabinet Office was not a party to those FTT appeal proceedings. The Cabinet Office had neither sought to be, nor was it made, a party to Mr Sheppard’s appeal to the FTT. In effect, the Cabinet Office relied on the Information Commissioner to make good the case for the request being refused under section 35(1)(a) of FOIA. The Cabinet Office only became a party in the First-tier Tribunal proceedings, as I understand it, after the FTT had made its decision and for the purpose of applying to the FTT for permission to appeal to the Upper Tribunal against the FTT’s decision. Whether the Cabinet Office is, or remains, a party in the proceedings which by this decision I am remitting to be redecided by the First-tier Tribunal may depend on the terms on which the Cabinet Office was joined to the FTT proceedings under rules 1(3)(c) and 9 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

The FTT allowed Mr Sheppard’s appeal on the basis that section 35(1)(a) of FOIA was not engaged in respect of the requested information. Given the range of the competing arguments of the parties about the FTT’s decision, I set large parts of that decision out below.

Section 1 of FOIA provides, subject to immaterial exceptions on this appeal, the core duty under FOIA. It states:

if that is the case, to have that information communicated to him.”

Section 2 of FOIA then deals with the effect of the exemptions found in Part II of FOIA, where section 35 sits, and provides materially as follows:

section 40(1),

It is section 2(2) when read with section 2(3) which makes section 35(1) a qualified exemption, but only if the exemption in section 35(1) applies or is engaged at all. If it does not apply then, subject to any other exemption or exclusion (e.g., section 14 of FOIA) applying, the duty in section 1(1)(b) of FOIA requires the public authority to provide the requested information.

I repeat for completeness the key terms of section 35(1)(a) of FOIA.

the formulation or development of government policy…”

The essence of the FTT’s decision was that the information requested by Mr Sheppard did not relate to the formulation or development of government policy because that policy was confined to maintaining the union of the United Kingdom.

The FTT having refused permission to appeal, Upper Tribunal Judge Wikeley refused the Cabinet Office permission to appeal the FTT’s decision, on the papers, on 8 September 2021. The essence of his reasons for so doing was that whether section 35(1)(a) of FOIA was engaged was ultimately a question of fact and the Cabinet Office’s appeal was no more than an attempt to re-argue the case on its factual merits.

The Cabinet Office renewed its application for permission to be reconsidered at an oral hearing and after an oral hearing on 24 May 2022 I gave the Cabinet Office permission to appeal. I did so on the following bases:

Written submissions were then made on the appeal by the parties. Those submissions included closed submissions from the Information Commissioner, submissions on the grounds on which I had given the Cabinet Office permission to appeal and argument about whether the FTT had also allowed the appeal on the alternative basis that, even if section 35(1)(a) of FOIA was engaged, the balance of the competing public interests favoured disclosure of the requested information.

The hearing of the appeal took place on 26 September 2023. The hearing included a closed session, which only the Information Commissioner’s representatives and the representatives of the Cabinet Office attended. A gist of the closed hearing was then provided to Mr Sheppard and his representatives when the open hearing resumed. That gist set out the following:

I will first clear out of the way the argument that the FTT decided in the alternative that, even if section 35(1)(a) was engaged, under section 2(2)(b) of FOIA the balance of the public interest in maintaining the exemption was outweighed by the public interest in disclosing the information. Far too much time was expended on this argument. It is quite clear in my judgment that the FTT made no such decision.

The language the FTT used in paragraph 22 of its decision, confining the issue to be decided to whether section 35 was engaged, what it said in paragraph 28 of the decision, its use of the conditional phrase “..if we had decided” and the phrase “we would comment” in paragraph 29 of the decision, and the FTT again using the conditional “…if we had found the exemption was applicable” at the end of paragraph 32 of the decision, all point obviously and decisively against the FTT having allowed the appeal in the alternative under section 2(2)(b) of FOIA. The sole basis on which the FTT decided the appeal in Mr Sheppard’s favour was because it found section 35(1)(a) of FOIA was not engaged, and it is on that basis that its decision stands or falls on this appeal to the Upper Tribunal.

Nor did recourse to case law assist on this issue as the cases to which I was referred – New South Wales Commissioners v Palmer [1907] AC 179 and Jacobs v London County Council [1950] AC 361 – concerned cases that were decided on two separate grounds: see page 184 of New South Wales Commissioners and page 369 of London County Council.

This may be a salutary lesson about an FTT saying too much in its reasons for its decision. Having decided that section 35(1)(a) was not engaged by the information requested, there was simply no need for the FTT to go on to decide the appeal on the alternative basis of section being 35(1)(a) engaged. The FTT was no doubt trying to be helpful to the parties in indicating its provisional and obiter view of where the balance of the arguments may have lain under section 2(2)(b) of FOIA had that issue been reached on the appeal. However, that positive intention to assist has unravelled and not assisted and may arguably even have been inappropriate in circumstances where the FTT had decided the appeal on a dispositive basis which on the face of it precluded consideration of an alternative basis for deciding the appeal. I am not here saying that an FTT should never make decisions on alternative bases. However , if it is to do so then it must do so clearly. For example, it may have been open for the FTT in this case to have said something like: “Even if we are wrong about section 35(1)(a) of FOIA not being engaged, in the alternative we are satisfied for the following reasons that the public interest in disclosing the information outweighed the public interest in maintaining the exemption”. That clarity was lacking here and it is not what the FTT decided.

Turning therefore to whether the FTT erred in law in deciding that section 35(1)(a) of FOIA was not engaged by the information requested by Mr Sheppard, I am satisfied on the arguments before me that it did err in law. This, in essence, is under the second ground on which I expressly gave permission to appeal.

Before turning to the second ground of appeal I should deal, however, with the first ground of appeal. A substantial difficulty in addressing and deciding this first ground of appeal is that, in the end, I did not understand any party to be arguing that, as a matter of the law under section 35(1)(a) of FOIA, information which relates to a settled high-level government policy must necessarily only be about implementing that policy and cannot be about the formulation or development of sub-policies connected to that high-level policy. Mr Sheppard did not rely on such an argument for his defence the FTT’s decision. His argument, in essence, was that the FTT had properly decided on the evidence before it that the requested information did not relate to the formulation or development of government policy and it had not therefore erred in law. Nor, as I understood it in the end, did the Cabinet Office. At the hearing before me the Cabinet Office argued that the FTT had failed to address that policy making is based on tiered policy making and, further, that the effect of the FTT’s decision was that sub-policies do not fall under section 35. Both of these are really arguments, as I see it, about what the FTT did on the evidence before it, rather than it taking an a priori view of what section 35(1)(a) of FOIA covers. The effect of the FTT’s decision may well have been that no sub-policies fell under section 35(1)(a), but that was the effect in this case in circumstances where, as I hope will become apparent under the second ground of appeal, the FTT had evidence before it about such sub-policies with which it did not grapple. It is perhaps worth adding that nothing in the language of section 35(1)(a) confines it to high-level government policy.

Although on first reading what the FTT said in paragraph 27 of its decision might be said to show that it proceeded on the basis that information which relates to a settled high-level government policy can only be information about the implementation of that high-level policy, I do not consider that the FTT was proceeding on the basis that this is what the law required. Had that been its view, I would have expected the FTT to have stated such a central point of law much more clearly than it did. Moreover, it would have needed to address directly the contrary view expressed, in particular, in paragraph 48 of the Information Commissioner’s guidance (set out below). Rather, I read paragraph 27 as showing only a failure on the part of the FTT to consider all the relevant evidence before it and the wrong identification by the FTT that there was only one policy – the policy of retaining the Union – which arose on the evidence before it.

If the FTT had proceeded on the basis that the identification of a settled high-level policy under section 35(1)(a) of FOIA necessarily precludes steps taken in relation to that policy from being anything other than steps to implement that policy, then subject to the caveat that I did not hear any contested argument on this point, I consider it would have erred in law. The example used of the consideration given by the UK government before 1998 for the need for greater devolution or ‘home political accountability’ as a means of maintaining the Union, which then led to the Scotland Act 1998, would seem to highlight well the error in such an approach. The high-level settled policy was then, as it remains now, the maintenance of the Union of the United Kingdom. The Cabinet Office accepted before me that this high-level policy was not going to change. However, I find it difficult to see how it can sensibly be argued that the discussions amongst civil servants and ministers before 1998 about possible ways in which greater ‘home political accountability’ might be introduced in Scotland, could only amount under section 35(1)(a) of FOIA to the implementation of the policy of maintenance the Union. The Scotland Act 1998 is a detailed, important and complex piece of legislation, and many of the ideas behind its creation would, at least on the face of it, have involved the formulation or development of government policy. An example of this might be said to be section 29 of that Act and demarcating the areas over which the Scottish Parliament was to have legislative competence and those on which it was not competent to legislate: see, for example, Lord Walker at paragraph [44] of Martin v Her Majesty's Advocate [2010] UKSC 10. I find it difficult to see how the governmental discussions that preceded that clause in the Bill before it became the Scotland Act 1998 did not ‘relate to the formulation or development of government policy’.

Where precisely formulation or development of policy may end and implementing it may begin is not necessarily sharp-edged, but that nuance calls for careful consideration of the evidence requested and to what it relates.

The material error of law in the FTT’s decision, in my judgment, was the failure of the FTT to interrogate in any sufficient manner, as shown through its fact-finding and reasoning, the evidence before it so as to properly conclude whether the information sought was in fact concerned only with implementing the government policy of maintaining of the Union of the four nations of the United Kingdom. Putting this perhaps another way, I agree with the Information Commissioner’s argument that the FTT erred in law by focusing exclusively on the settled “high-level” policy of maintaining the integrity of the Union without having any adequate regard to evidence before it which on its face, and for reasons mainly explained in the closed decision, showed “sub-policies” sitting under that high-level policy which related to the formulation or development of government policy. Because the FTT proceeded on the basis that the Cabinet Office had not identified any way in which the polling information requested by Mr Sheppard related to policies other than the settled policy of maintaining the Union, due to the FTT’’s failure to interrogate all the relevant evidence which was before it, this (wrongly) led the FTT to conclude the withheld information could only relate to the implementation of that high-level policy objective, and therefore that section 35(1)(a) of FOIA did not apply.

Whether the section 35(1)(a) exemption is engaged is fact specific, just as is the application of section 2(2)(b) of FOIA if section 35(1)(a) is engaged: see paragraph [26] of Department of Health and Social Care v Information Commissioner [2020] UKUT 299 (AAC). It therefore requires careful consideration to be given to all relevant evidence. Moreover, I agree with the Information Commissioner, and for the reasons I have given in paragraph 33 above, that where the information requested relates to a settled high-level policy, it does not follow that section 35(1)(a) cannot apply. Nor does it follow that all the information held by the government which relates to that settled high-level policy must necessarily be about implementing that policy. This is because the information may also relate to the formulation and development of sub-policies which sit underneath, or are an aspect of, the settled high-level policy. Equally, however, it does not follow that section 35(1)(a) must apply to such sub-policies as they must still relate to the formulation or development of government policy.

The FTT’s approach, as shown through its reasoning, was, with respect, too simplistic and failed to have any adequate regard to the evidence before it. It proceeded on the basis that there was only one policy of retaining the Union, that was a settled policy, and therefore, following paragraph 56 of the Information Commissioner’s guidance, information gathered under that policy could only be about implementing that settled policy. This did not take account of other parts of the Commissioner’s guidance on section 35 of FOIA. Nor, more importantly, did it take account of all the relevant evidence (both OPEN and CLOSED) which was before the FTT.

In paragraph 24 of its decision the FTT had criticised the Cabinet Office’s review letter of 14 August 2019 and the sentence in it “Whilst the UK Government does have an overarching policy to maintain the integrity of the Union, this is underpinned by ongoing activity to support the development of that policy”, on the basis that this failed to explain how the settled policy of retaining or maintaining the Union might be developed as a result of the polling information Mr Sheppard had requested. However, although I can understand the FTT’s difficulties with the elliptical phrasing used by the Cabinet Office in that letter, the FTT was exercising an inquisitorial function (see, for example, paragraph [31] of Lowniev ICO, The FCO and The National Archives [2020] UKUT 32 (AAC) and paragraph [17] of Montague -v- Information Commissioner and DIT [2022] UKUT 104 (AAC) (which was not doubted on the successful appeal from part of that decision to the Court of Appeal)), in exercising that inquisitorial or investigatory function it had to consider all the relevant evidence before it, and that evidence, particularly the CLOSED evidence, at the very least raised a serious issue of whether the polling information requested related to the formulation or development of sub-polices sitting underneath the overarching and settled policy of maintaining the Union.

Nor do I accept that the FTT provided any sufficiently reasoned basis showing that it had taken into account, but rejected, any argument that the polling information requested related to sub-policies sitting underneath the high-level policy of maintaining the Union. There is simply nothing in the FTT’s decision to make good such an argument.

It is indeed striking that the FTT did not grapple with any of the closed materials. It did not provide a CLOSED decision on the appeal. The FTT therefore had to rely on its (OPEN) decision as providing its full reasoning on all relevant issues which arose on the appeal: see paragraphs [16]-[18] of Davies v IC and the Cabinet Office [2019] UKUT 185 (AAC); [2020] AACR 2. At paragraph 21 of its decision the FTT said that it had “carefully considered” the redacted passages in the Cabinet Office’s letter of 9 October 2019, but those passages did not impact on its conclusion. Three points can be made about this and it amounting, in my judgment, to an inadequate consideration of all the relevant evidence before the FTT on this appeal.

First, paragraph 21 of the FTT’s decision says nothing about the other CLOSED evidence before the FTT, nor does anything else of substance in the decision grapple with that evidence.

Second, there is no reasoned basis for why the redated passages in the 9 October 2019 letter did not impact on the FTT’’s conclusion that the only policy to which the polling information related was the high-level policy of maintaining the Union. I will set out in the CLOSED decision why both pieces of the CLOSED evidence were, at the very least, relevant to the issue the FTT decided, and needed specific consideration by the FTT. In fact, bearing in mind that the phrase “relates to” in section 35(1)(a) of FOIA is to be interpreted broadly and to relate to the content of the information requested (see paragraph [79] of Office of Government Commerce v Information Commissioner [2008] EWHC 774 (Admin); [2010] QB 98 and paragraph [41] of The Cabinet Office v Information Commissioner [2014] UKUT 461 (AAC)), in my judgment the requested polling information, whilst it related to the high-level and settled policy of maintaining the Union, also related to the formulation or development of (sub) policies connected to that settled policy. It is for this reason that I have directed the First-tier Tribunal to whom this appeal is being remitted to proceed on the basis that section 35(1)(a) of FOIA is engaged by information requested by Mr Sheppard.

Third, even ignoring the CLOSED materials, there was sufficient in my judgment in the OPEN parts of the Cabinet Office’s letter of 9 October 2019 to call for a reasoned explanation from the FTT for why it did not affect its conclusion that the polling information Mr Sheppard requested only related to the high-level policy of maintaining the Union and not any sub-policies sitting underneath it. The letter of 9 October 2019 does not feature at all in the FTT’s discussion, in paragraphs 22-27 of its decision, of why it concluded that section 35(1)(a) was not engaged. However, the OPEN parts of the 9 October 2019 letter which are set out under the sub-heading “Application of section 35(1)(a)” raised an issue about the polling information relating to policy formulation. Most obviously, in the context of the information only having been in the Cabinet Office’s possession for three days and that not having been sufficient time for the data to be absorbed and given due consideration, this part of the letter spoke about the information potentially leading “to an agreed policy direction that could have received Ministerial approval and sign-off”. As a result of this, the letter continues, the Cabinet Office considered it had been correct for it to maintain that the requested information “still formed a policy consideration in the very early stages of formulation” and thus falling entirely and squarely within section 35(1)(a) of FOIA. It is true that the specific policy or policies are not identified in the OPEN part of the letter. However, the just quoted passages follow on from the letter having contrasted ‘policy formulation or development’ (connected to maintenance of the Union) with ‘policy implementation’, and nothing in the passages which I have just quoted from was stated to be about implementation of the policy of maintenance of the Union. This evidential argument in the 9 October 2019 letter called for reasoned consideration by the FTT, which it did not provide.

In addition, there was further consideration of the policy formulation or development v implementation dichotomy later in the letter. Admittedly this was under the sub-heading ‘Public interest test’. However, given the FTT’s inquisitorial jurisdiction and the stated uncertainties and difficulties the FTT had with some of the evidence before it, in my judgment it needed to go beyond the demarcation of this sub-heading and consider the substance of what was said in this part of the 9 October letter. In particular, the FTT needed to grapple with and explain why the Cabinet Office’s points about “follow-on policy formulation” based on the polling data and analysing the results in full “and determine how these could be used to influence government policy as part of the Union Strategy”, did not show any policy formulation or development.

The above is sufficient to dispose of this appeal. However, it is instructive to note other parts of the Information Commissioner’s guidance on section 35(1)(a) of FOIA which the FTT did not set out. The guidance in place at the time of the FTT’s decision was a quite lengthy document (it has since been updated, on 13 January 2023, but with no material changes), extending to 239 paragraphs. However, the following excerpts from it were plainly relevant to the issue with which the FTT had to grapple:

No party suggested the FTT erred in law in failing to set out in its decision, or otherwise have express regard to, paragraph 48 of this guidance. However, I venture to suggest that had the FTT had regard to these passages in the guidance its central conclusion, as expressed in paragraph 27 of its decision, may have appeared less obvious. By way of example only, the reference in paragraph 57 of the guidance to Ministerial involvement taken with the evidence in the Cabinet Office’s letter of 5 October 2019 of “an agreed policy direction that could have received Ministerial approval and sign-off” very arguably gave rise to an issue about whether the polling data might have been related to the formulation or development of a government policy that sat underneath the high-level settled policy of maintaining the Union.

In terms of whether I should redecide the appeal or remit it to be redecided before an entirely freshly constituted First-tier Tribunal, in the end none of the parties before me argued with any real force against remittal to the First-tier Tribunal if a further hearing was needed. This was perhaps inevitable given that at the end of the hearing before me it was clear to me that redeciding the first instance appeal would need to wait until another day, whichever tribunal was to redecide it. On this point, I reject the argument made on behalf of Mr Sheppard that I could decide the public interest balance test on the written evidence and arguments before me and therefore without the need for any further hearing. He relied in this regard on what was said in paragraph [46] of Davies v IC and the Cabinet Office [2019] UKUT 185 (AAC); [2020] AACR 2 and contrasted the factors which led the Upper Tribunal to redecide the appeal in that case with those which had led the Upper Tribunal to remit the appeal in Natural England v Warren [2019] UKUT 300 (AAC); [2020] PTSR 565, at paragraph [189]. I am not persuaded by this argument. First, the FTT did not decide the public interest test or even purport to do so. There are therefore no findings of the FTT on this issue and so it needs to be decided afresh and for the first time. Second, little if no fresh argument was made before me at the hearing as to where the balance of the competing public interests in fact lay. Third, although the Cabinet Office was very late to the First-tier Tribunal proceedings before the appeal to the Upper Tribunal, it either now is a party to those proceedings or is likely to be made a party. In those circumstances, fairness may well require it to be able to present evidence and argument about the competing public interests to whichever tribunal is to redecide this appeal; or at least there must be opportunity for the Cabinet Office to present argument about it being able to do, and that time was not available at the hearing before me. Allied to this last point, I accept the argument of the Information Commissioner that the Cabinet Office may have an at least arguable case that it should be allowed to file further evidence and submissions, not only because the application of the section 35 exemption “reflects the public interest in confidential information held by a government department relating to the formulation of government policy remaining confidential” (per paragraph [100] of Office of Government Commerce v Information Commissioner [2008] EWHC 774 (Admin)), but also because the statutory decision makers (i.e., the Information Commissioner and the FTT) have to date struggled to understand fully the Cabinet Office’s arguments. The views of the Upper Tribunal Judge Markus QC (as she then was) in paragraph [31] of the case Lownie, drawing on what the Upper Tribunal had said in Browning v IC and DBIS [2013] UKUT 236 (AAC),are pertinent to the first of these points. As Judge Markus put it:

In all these circumstances, I cannot identify any good reason for the Upper Tribunal to retain the appeal to redecide it, but there are good reasons for the First-tier Tribunal to redecide it (see, again, Natural England v Warren at paragraph [189]), not least it is the expert evaluative body charged with deciding such appeals.

I apologise finally to the parties for the time is has taken me to reduce this decision to writing. This has arisen due to the pressure of other work. The delay is not because of any real difficulty in deciding the legal issues in this appeal.