In late 2018, the Upper Tribunal of the Administrative Appeals Tribunal released two significant decisions as to the Freedom of Information Act 2000, section 35, which provides the government a limited basis to withhold communications from disclosure. These are Department for Education v Information Commissioner & Whitmey  UKUT 348 and Cabinet Office v Information Commissioner & Webber  UKUT 410. The cases relate to the 2010 – 2015 Conservative – Liberal Democrat Coalition Government (the “Coalition Government”), headed by Prime Minister David Cameron (Conservative) and Deputy Prime Minister Nick Clegg (Liberal Democrat).
FOIA, section 35
Section 35 provides a qualified exemption to disclosure as to information relating to: (1) ministerial communications and (2) the formulation or development of government policy (inter alia). Withholding information from disclosure is justified if the public interest in withholding the information outweighs the public interest in disclosing the information (section 35(2(2)(b)). Broadly, the purpose of section 35 is to promote free and frank communications between the government and its advisors.
Department for Education v Information Commissioner & Whitmey
The Upper Tribunal upheld a decision of the First Tier Tribunal (“FTT”), which required the Department of Education to disclose a 2014 letter (the “Letter”) from Lord Nash, Parliamentary Undersecretary of State for Schools (Conservative) to Deputy Prime Minister Nick Clegg relating to the public consultation for the proposed new Independent Schools Standards (“ISS”). The ISS, which was developed against the background of a 2013 scandal relating to alleged infiltration of schools in Birmingham by Islamic fundamentalists, was intended to provide for the teaching of “British values” in independent schools and academies.
The Department submitted that it was entitled to withhold the Letter under FOIA, section 35(1)(b) (ministerial communications). The Department argued that disclosure of the Letter could undermine the principle of collective ministerial responsibility, under which Cabinet members are required to present a united front to the public as to government decisions. This was said to be because a person reading the Letter, in combination with other material, could form the view that ministers in the Coalition Government had differing views as to the ISS.
The FTT accepted that disclosure of the Letter had the potential to undermine collective ministerial responsibility. However, any impact was towards the lower end of the scale, and was outweighed by the numerous factors in favour of disclosure: controversy over the concept of “British values”; the connection between the ISS and the 2013 Birmingham scandal; and the fact that the roll-out of the ISS had some unusual features (public consultation began during the school holidays, was truncated, and had been criticised by a Parliamentary committee). The Upper Tribunal held that the First Tier Tribunal’s analysis did not disclose any error of law, and generally agreed with its reasoning.
Cabinet Office v Information Commissioner & Webber
The Upper Tribunal upheld the decision of the FTT to require the Cabinet Office to disclose a memorandum of advice to Mr Cameron (the “Memorandum”) relating to a decision taken in 2015 to pay Mr Clegg the Public Duties Costs Allowance (“PDCA”). The PDCA is a stipend paid to former Prime Ministers (and generally no-one else) to assist them with the costs of continuing to fulfill duties associated with the previous position. Mr Cameron agreed to extend the PDCA to Mr Clegg, even though he had not been Prime Minister, because his tenure as Deputy Prime Minister had special significance. Unlike other deputy prime ministers, Mr Clegg was leader of the minority party supporting the Coalition Government, and had increased responsibilities due to this (one would need to go back to Clement Atlee during World War 2 to find a comparator).
The Cabinet office submitted that it was entitled to withhold the Memorandum under FOIA, section 35(1)(a) (formulation or development of government policy). The Department argued that the PDCA Policy was under review, and that disclosure of the Memorandum would be equivalent to disclosure of the advice of the Civil Service as to potential amendments to the Policy. The FTT rejected this argument. It held that the decision to pay Mr Clegg the PDCA was distinct from the wider PDCA Policy review project. Moreover, the fact that the Memorandum related to a decision which had already been made was a factor pointing away from an entitlement to withhold the Memorandum. Conversely, there were weighty factors pointing towards disclosure, particularly that the Memorandum related to a decision to pay Mr Clegg a substantial amount from public funds.
The Upper Tribunal declined to find that the FTT had committed an error of law. Moreover, it rejected the Cabinet Office’s submission that the fact that the Memorandum constituted advice at the highest level of the Civil Service pointed against disclosure. The Upper Tribunal held that at this level the public have the greatest interest in scrutinising the advice received by the Prime Minister and Cabinet, and accordingly, politicians and civil servants should have a greater expectation that their communications may become public.
Whitmey and Webber indicate that the FTT and Upper Tribunal will not be satisfied with bare assertions on behalf of the government that disclosure will undermine government functions. Rather, they will insist on evidence as to how disclosure of the particular information subject to the FOIA application will undermine the public interest. In both cases, the government failed to discharge its burden.
For example, in Whitmey, the FTT stated: “Ms Dunn’s evidence was […] weak on the harm said to arise from disclosure of the particular letter with which we are concerned. We found that her ‘straw that broke the camel’s back’ approach demonstrated a class-based, rather than a contents-based approach to the information […]” (Para. 57). Similarly, in Webber, the Upper Tribunal found “government evidence did not explain in what way the memorandum related to the wider policy development that was being undertaken nor in what way disclosure of the former would prejudice the latter […] there was no evidence to show that disclosing the memorandum would give rise to prejudice to or in connection with future decisions about future deputy prime ministers.” (Paras. 33, 35).
Moreover, Whitmey and Webber show the significance of the passage of time and change in the make-up of the government. As to Whitmey, by the time the FTT became seized of the case, the Liberal Democrats were no longer in power. The FTT placed significant weight on this, because it meant that the potential damage to collective ministerial responsibility was significantly lower. In the case of Webber, the main reason why disclosure was ordered was that the decision to pay Mr Clegg the PDCA had already been made. Finally, Webber should serve as a warning to government that the degree of protection from disclosure afforded by FOIA, section 35 in respect of policies under development may shrink once aspects of the policy are settled and implemented.