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.
Continue Reading Freedom of Information Act 2000 (UK) case update: Upper Tribunal rules in favour of disclosure of ministerial communications