EA-2023-0405 - [2024] UKFTT 00700 (GRC)

The information withheld under section 40(2) is:

We do not accept that there is any legitimate interest in emails addresses or telephone numbers. We conclude that this information is exempt under section 40(2).

We ordered HMT to provide submissions on why section 40(2) applied to the names of individuals, other than Rishi Sunak, with specific reference to the grade and/or level of seniority of each individual. HMT have not provided any substantive additional submissions. In the absence of those submissions we are not persuaded that some of the redacted names belong to ‘junior’ employees or officers. Those individuals are identified in the closed annex.

We do not accept that there is any legitimate interest in the names of ‘junior’ officials or employees and we conclude that this information is exempt under section 40(2). There are no redactions of job titles of individuals that we have accepted are ‘junior’.

We accept that there is a legitimate interest in the identity, i.e. the job titles and the names, of any individuals other than junior employees involved in discussions of this nature.

We have considered whether the disclosure of the requested information is reasonably necessary for the purposes of the identified legitimate interests. Disclosure must be more than desirable, but less than indispensable or an absolute necessity. Disclosure must be the least restrictive means of achieving the legitimate aim in question, because it would not be necessary if it could be achieved by anything less. We must consider whether the legitimate aim could be achieved by means that interfere less with the privacy of the data subjects.

In our view the legitimate interest in the identity and names of any individuals other than junior employees cannot be achieved through other means and therefore it is reasonably necessary to disclose the names of those individuals.

We do not accept that more senior employees in these type of roles have a reasonable expectation of privacy in relation to this this specific information (i.e. their names in a work context).

For those reasons we conclude that the names of more senior employees are not exempt under section 40(2).

We have considered the name and job title of one of those employees or officials under section 27, because it was considered in the decision notice under section 27. HMT have not relied on section 27 in the alternative in relation to the other names and this did not form part of the Decision Notice.

We accept that this is Rishi Sunak’s personal data, in the sense that it relates to him – it is obviously about Rishi Sunak and he is its focus. He is also identifiable from the information.

We find that there is a clear legitimate interest in transparency in relation to the precise circumstances and the detail of the discissions surrounding the following matter:

Further we agree with the Commissioner that there is a legitimate interest in transparency in relation to the extent to which what is described by HMT as ostensibly a private matter was considered via a publicly resourced channel of communications.

We accept that the Geidt Report does contribute to transparency in relation to this issue to some extent, however it does not set out any detail of what the discussions were with the relevant authorities or cast any light on why, as a result of those discussions, Mr. Sunak decided it would be appropriate at that point to relinquish the Card. In our view, it is reasonably necessary for the correspondence to be disclosed for the purpose of the identified legitimate interests.

In relation to one redaction to page A20 and a redaction on page A14 of the bundle, the tribunal accepts that the legitimate interests are overridden by the interests of fundamental rights and freedoms of the data subject. Whilst this takes place in the context of official discussions about a state visit in Mr. Sunak’s official capacity as Chancellor, these particular sections of these emails fall squarely, in our view, into Mr. Sunak’s private life. We find that Mr. Sunak would have had a reasonable expectation of privacy in relation to this particular information.

In relation to the remainder of the information relating to Rishi Sunak withheld under section 40(2) we do not accept that Mr. Sunak would have had a reasonable expectation of privacy. The fact that Mr. Sunak held a Green Card and that he decided to relinquish it as a result of discussions with US officials was in the public domain at the date of the response to the request. These are discussions between state officials organising a visit by Mr. Sunak to the US in his capacity as Chancellor. We accept that the Green Card was held by Mr. Sunak as a private individual, but its relevance to these discussions between officials about a state visit is its impact on his public role and his public duties not on his private life. The discussions do not reveal any aspects of Mr. Sunak’s private life. We do not accept that there would be any harm or distress to Mr. Sunak as a result of disclosure of this information.

In our view there is an important legitimate interest in this information, given Mr. Sunak’s position as Chancellor and the controversy and public debate surrounding the holding and the relinquishing of his Green Card.

For those reasons we conclude that the legitimate interests outweigh the interests and fundamental rights and freedoms of Rishi Sunak in relation to the remainder of his personal data withheld under section 40(2). For the same reasons we conclude that disclosure would be fair and transparent.

We conclude that HMT was not entitled to rely on section 40(2) to withhold that information.

There is additional closed reasoning on section 27 in the closed annex.

The applicable interest under section 27 is the protection of the interests of the UK in its dealings with other states.

HMT’s arguments on this issue appear largely in the closed bundle in the redacted portions of its letter to the Commissioner. Some of that argument is repeated in the Decision Notice and so can be set out in open:

There is another aspect to HMT’s argument which is contained in the closed bundle and considered in the closed annex to this decision.

We are not persuaded that emails that include what we would categorise as banal discussions of administrative arrangements or those that simply reveal that the discussions were between certain individuals engage section 27. We are also not persuaded in relation to one redaction that does not fall within this category.

We have considered the consequences that HMT asserts would flow from the disclosure of this information, but we are not persuaded of any causative link between the disclosure of this particular information and those consequences. We do not accept that release of this information carries a significant and weighty chance of causing any chilling effect on the candour with which Private Offices and Embassy officials communicate.

We are not persuaded that there is a significant any weighty chance of prejudice to relations between the United Kingdom and another state in either way set out by HMT through disclosure of this information.

We have set out the pages in relation to which we find that section 27 is not engaged in the closed annex.

In relation to two pages of the emails we do accept that section 27 is engaged for the reasons set out in the closed annex.

We accept that there is a very strong inbuilt interest in avoiding harm to the interest of the UK in its dealings with other states. In relation to the particular information redacted from the two pages in relation to which section 27 is engaged, we are not persuaded that there is a significant public interest in disclosure. The information does not illuminate the public interest issues highlighted by the appellant. We accept that there is a general public interest in transparency but in our view this is outweighed by the public interest in maintaining the exemption.