Cabinet Office v Information Commissioner and Morland: [2018] UKUT 67 (AAC); [2018] AACR 28

Upper Tribunal Administrative Appeals Chamber decision by Judge Wikeley, Judge Markus and Judge Wright on 1 March 2018.

From:
HM Courts & Tribunals Service and Upper Tribunal (Administrative Appeals Chamber)
Published
15 March 2018
Last updated
27 September 2019 — See all updates
Categories:
Information rights
Sub-categories:
Information rights - Freedom of information - qualified exemptions, Information rights - Information rights: practice and procedure
Judges:
Three Judge Panel
Decision date:
1 March 2018

Read the full decision in [2018] AACR 28ws

Judicial Summary

Reported as [2018] AACR 28

Freedom of information – proper application of sections 35(1)(a) and 37(1)(b) of the Freedom of Information Act 2000 (FOIA) – exemption not dealt with by the Information Commissioner

On 8 April 2015 Mr Morland made a freedom of information request to the Cabinet Office for minutes of an official meeting relating to proposals for a National Defence Medal for veterans. The Cabinet Office refused the request in reliance upon section 37(1)(b) (Communications with Her Majesty, etc and honours) and section 35(1)(a) (Formulation of government policy, etc) of the Freedom of Information Act 2000 (“FOIA”). The Information Commissioner issued a Decision Notice, upholding the Cabinet Office’s reliance on section 37(1)(b) of FOIA. The Decision Notice expressly omitted consideration of the Cabinet Office’s reliance on section 35(1)(b). Mr Morland appealed to the First-tier Tribunal (F-tT). The F-tT allowed the appeal. In doing so, the F-tT concluded that (i) the scope of the request was narrower than the Decision Notice found it to be; (ii) section 37(1)(b) FOIA was not engaged by the information request; and (iii) (while expressing doubt that it is open to it to reach a view as to section 35(1)(a) FOIA, when that exemption was not adjudicated upon by the Information Commissioner) section 35(1)(a) was not engaged at the time of the request. The Cabinet Office appealed to the Upper Tribunal (UT). The issues before the UT were: whether the F-tT properly applied section 37(1)(b) FOIA; whether the Ft-T properly applied section 35(1)(a) of FOIA; and if the answer to either or both of the two questions was in the negative, what consequences followed

Held, allowing the appeal, that:

  1. section 37(1)(b) must be read against the backdrop of section 37 as a whole (paragraph 20);

  2. the focus of section 35(1)(a) itself, on any plain reading, is on the content of the requested information and not on the timing of the FOIA request in relation to any particular decision-making process (paragraph 29);

  3. the question of whether the policy-making process is still ‘live’ is an issue that goes to the assessment of the public interest balancing test, and not to whether the section 35(1)(a) exemption is engaged in the first place (paragraph 31).

  4. where a public authority has relied on two exemptions (‘E1’ and ‘E2’), and the Commissioner decides that E1 applies and does not consider E2. Then if the F-tT agrees with the Commissioner’s conclusion regarding E1, it need not also consider whether E2 applies. Where the F-tT disagrees with the Commissioner’s conclusion on E1 it must consider whether E2 applies and substitute a decision notice accordingly (paragraph 39);

  5. once section 37(1)(b) (E1) had been knocked out, the section 35(1)(a) exemption (E2) had to be addressed by the Ft-T precisely because it could not be remitted for further consideration by the Information Commissioner (paragraph 40).

The UT set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be re-decided in accordance with directions.

Published 15 March 2018
Last updated 27 September 2019 + show all updates

  1. Decision selected for reporting as [2018] AACR 28

  2. First published.