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

In a decision notice dated 7 December 2021 the Commissioner decided that:

The reasons for the Commissioner’s conclusion that most of the information was within the scope of the request is set out in a closed annex.

It is not necessary for the purposes of this appeal to set out the Commissioner’s reasoning in relation to scope or in relation to section 35.

In relation to section 40(2) the Commissioner concluded that the information related to Rishi Sunak and named individuals who were involved in the exchange of correspondence. He was satisfied that this information both related to and identified the individuals concerned. It was therefore personal data withing section 3(2) of the Data Protection Act.

The Commissioner recognises a legitimate and compelling interest in learning more about exchanges with US officials regarding the then Chancellor’s US green card. According to the US Citizenship and Immigration Services website, having a green card allows the holder to live and work permanently in the United States. According to the website of the US Embassy in London, a foreign dignitary such as a senior UK politician would normally travel on an A1 visa which must be arranged in advance.

The Commissioner accepted that reasonable necessity had been met as, in line with that test, disclosure would provide greater transparency about the extent to which what is described by HMT as ostensibly a private matter was considered via a publicly resourced channel of communication.

It is now a matter of public record that Rishi Sunak had a green card and according to news reports, he rescinded this card before his visit to the US as Chancellor in October 2021. There is a legitimate interest in the public knowing more about the details of discussions with US officials given that green card status.

The Commissioner acknowledged that Mr Sunak’s green card is a personal matter. It was obtained in his capacity as a private citizen and not as an elected official and a government minister. The October 2021 trip in question to the US was in his official capacity as the then Chancellor of the Exchequer. In this case, any correspondence with US officials on the matter of his green card would inevitably relate to his impending official trip made in his public capacity.

The Commissioner recognised that a balance must be struck between Mr Sunak’s legitimate interest in keeping private any correspondence which related to his green card and the legitimate interest in transparency about arrangements for his official trip to the US and about the use of publicly resourced channels to discuss these matters. He acknowledged that the legitimate interest in disclosure has been served to a large extent by a report which had been commissioned in early 2022 entitled ‘Advice from the Independent Advisor on Ministers’ Interests about the Chancellor of the Exchequer’s outside interests’ (Lord Geidt’s report).

The Commissioner determined by a narrow margin that there was insufficient legitimate interest to outweigh the data subjects’ fundamental rights and freedoms.

In relation to the names of junior officials he concluded that disclosure would be unfair and wholly outside their reasonable expectations.

In relation to section 27, the Commissioner accepted that disclosure could encroach on the confidential space needed to conduct effective relations with senior representatives of other states, especially those which value the UK’s trust and discretion. The Commissioner accepted that disclosure would be likely to harm the UK’s relations with such states. He concluded that the public interest in disclosure was outweighed by the public interest in ensuring that the UK maintains effective relations with the US.