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

It is submitted that the fact that Rishi Sunak obtained his green card prior to becoming an MP (and later the Chancellor of the Exchequer, and the Prime Minister), does not render his green card a ‘personal matter’; he held a US green card for over six years while he was an MP (during which time he was Parliamentary Under-Secretary of State for Local Government from 9 January 2018; and Chief Secretary to the Treasury from 24 July 2019), and for at least nineteen months while he was Chancellor of the Exchequer between February 2020 and October 2021. During that period, he had a right of permanent residency in the USA, enjoyed certain statutory rights in the USA, and filed annual tax returns with the US government.

In circumstances where Mr Sunak held high-level ministerial positions in the UK government (and for example, as Chancellor was responsible for domestic tax policy and negotiating international tax treaties), the independent submitted that it cannot be the case that “any decisions concerning that card… [were] clearly by their nature personal” [IC Response/§26]. It was submitted that it follows that Rishi Sunak cannot have had a legitimate interest “in keeping private any correspondence which relates to his green card” [D/§52].

As an elected politician and Chancellor of the Exchequer, working within public authority bodies subject to FOIA and the spirit of transparency, the Independent submitted that Mr Sunak cannot have had a reasonable expectation that his personal data would not be subject to disclosure.

In any event, it was submitted that the legitimate interest in disclosure that the Commissioner had already established could not have “been served to a large extent” by the independent report that had been commissioned in early 2022 (and referred to at paragraphs 40-44 of the DN) (“the Geidt Report”). The Geidt Report was “confined to the question of conflicts of interest and the requirements of the Ministerial Code”; and the role did not “touch on any wider question of the merits of such interests or arrangements (paragraph 27).

The Independent submitted that the Geidt Report relied upon “the material held by the office of Independent Adviser as well as requesting further information from HM Treasury and the Chancellor”. The Independent argued that it is not clear whether the Geidt Report relied upon or had access to correspondence between HM Treasury and US officials, which is the subject of the Request. In any event, it was submitted that legitimate interests identified by the Commissioner in the Decision Notice (namely, the “legitimate interest in the public knowing more about the details of discussions with US officials given that green card status” was and is not served by the Geidt Report.