[2025] UKUT 114 (AAC)

In his decision notice of 4 August 2022 (IC-46882-Q9V9) the ICO explained that

“5.

On 8 November 2017 Priti Patel, then Secretary of State for International Development, resigned from Prime Minister Theresa May’s government after it was revealed that she had had unofficial meetings with Israeli ministers, business people and a senior lobbyist. The Guardian newspaper reported at the time that it appeared that Ms Patel ‘had broken ministerial rules when the BBC disclosed on Friday that she met politicians and businessmen from Israel while on holiday in August without informing departmental officials, the FCO (Foreign and Commonwealth Office) or Downing Street in advance’ (Footnote: ¹). Ms Patel resigned after it became clear that she had not been entirely candid with Mrs May about the number and extent of the unofficial meetings when she was questioned about the same by the Prime Minister.

6.

On 24 July 2019, Ms Patel returned to the Cabinet when she was appointed Home Secretary by incoming Prime Minister Boris Johnson.

7.

The Ministerial Code (Footnote: ²) (last updated 23 August 2019) provides that, on leaving office, Ministers (and senior civil servants) must seek advice from the Advisory Committee on Business Appointments (ACOBA) about any appointments or employment which they wish to take up within two years of leaving office, and that they must abide by that advice. ACOBA is a non-departmental public body, sponsored by the Cabinet Office. The Code is characterised as a code of honour. Thus, ACOBA has no power to compel former ministers either to seek advice before taking up appointments or to accept the advice given.

8.

On 26 July 2019, the Guardian newspaper reported that Ms Patel was ‘facing allegations of breaching the ministerial code for the second time in her parliamentary career’ for accepting a position as Strategic Adviser with Viasat, a California-based global communications company, before seeking advice from ACOBA (Footnote: ³). The newspaper reported that Ms Patel did not approach ACOBA for advice on the Viasat appointment until June 2019, a month after she had started the role.

9.

The newspaper reported that Jon Trickett, then Shadow Minister for the Cabinet Office, had written to the Prime Minister, calling for an investigation into whether Ms Patel had broken the Ministerial Code and calling for her dismissal if that was found to be the case.

10.

It is apparent that the reportage in the Guardian is what prompted the complainant to make his information request in this case.

Request and response

11.

On 3 August 2019, the complainant wrote to the Cabinet Office and requested information in the following terms:

‘I wish to raise a complaint about the clear breach of the Ministerial Code by former and current Secretary of State, Ms Priti Patel MP. The circumstances are outlined in the Guardian article linked in my tweet below. In addition, I note that the Code states clearly that retrospective applications will not normally be accepted. This was not the position adopted in Ms Patel’s apparent second breach of the Code. I am making, separately by this email, a freedom of information request about Ms Patel’s original breach of the Code and this apparent new breach of the Code. Please provide all relevant information held by the Cabinet Office that is not covered by an exemption under the Act. If an exemption applies, please still provide what information you can and explain the use of the exemption.

I look forward to receiving an acknowledgement and full response to both this complaint and the separate FOI request. These are separate matters that suggest Ms Patel is not fit for the high office to which she has recently been appointed’.

12.

On the same date, the complainant sent a tweet, including the Cabinet Office’s twitter handle, in the following terms:

‘#PritiPatel accused of breaching #MinisterialCode for second time. Code adds: ‘Retrospective applications will not normally be accepted. ‘Again, she falls below ‘high standards’ of a current and former SoS.

??@cabinetofficeuk?? Will this go to ACOBA? #FOIA’.

13.

The tweet referenced a link to the aforementioned article in the Guardian newspaper. As noted, The Ministerial Code requires ministers to consult ACOBA before taking on paid work for a period of two years after they leave office.

14.

The Cabinet Office acknowledged receipt on 2 September 2019 but gave the date of the request as 23 August 2019. The complainant replied to the Cabinet Office on 2 September and advised them that his request was submitted on 3 August, not 23 August and that section 10 of the FOIA required a public authority to provide a response within 20 working days.

15.

The Cabinet Office wrote to the complainant on 3 September 2019 and informed him that they had no record of receiving an FOI request from him directly. They confirmed that they received a copy of his request that was passed to them from ACOBA and had decided to log and process it as a direct request, even though they had not received direct correspondence from the complainant. The Cabinet Office confirmed that they would provide a response from the date that they received the request – 23 August 2019.

16.

The complainant wrote back to the Cabinet Office and advised them that he submitted his request to ACOBA on 3 August 2019, and they had copied it to the Propriety and Ethics Team at the Cabinet Office on 6 August 2019. In addition, the complainant advised that he raised a similar FOI request via Twitter on 3 August, which was copied directly to the Cabinet Office. He stated that it was the responsibility of organisations to monitor social media for FOI requests.

17.

The Cabinet Office wrote to the complainant on 11 October 2019 and confirmed that they held information within scope of his request but that they considered that the information was exempt under section 36 (prejudice to the effective conduct of public affairs) of the FOIA. They advised that they needed further time to consider the balance of the public interest test.

18.

On 31 January 2020, the complainant complained to the ICO about the failure of the Cabinet Office to provide him with a substantive response to his request.

19.

The Commissioner wrote to the Cabinet Office on 10 February 2020 and requested that the Cabinet Office provide the complainant with the outstanding response within 10 working days. That correspondence was neither acknowledged nor responded to. The complainant contacted the Commissioner on 25 February 2020 and requested that the Commissioner issue a decision notice to ensure the Cabinet Office’s compliance with the Act.

20.

The Commissioner issued a decision notice (FS50906944) (Footnote: ⁴) on 4 March 2020, finding that the Cabinet Office received the complainant’s request on 3 August 2019, as the request was clearly directed at an email address carrying the Cabinet Office’s domain name and the fact that the complainant received an automated response.

21.

The Commissioner noted that his guidance states that a ‘reasonable’ extension of time to consider the balance of the public interest attached to a request will normally be an additional 20 working days. In this case the Cabinet Office had had an additional six months to consider the request and the Commissioner was not aware of any circumstances which would be likely to justify such a lengthy delay. The Cabinet Office had been unable to offer any justification for the delay. The Commissioner found that the Cabinet Office had failed to complete their public interest test considerations within a reasonable timeframe and had therefore not complied with section 17(3) of the Act. The decision notice ordered the Cabinet Office to issue a substantive response to the complainant within 35 calendar days.

22.

The Cabinet Office subsequently provided the complainant with their substantive response on 23 March 2020. They informed the complainant that in relation to his request for information about ‘Ms Patel’s original breach of the Code’, they did not hold any relevant information. The Cabinet Office did not rebut the complainant’s assertion about Ms Patel’s original breach of the Ministerial Code. In relation to Ms Patel’s engagement with ACOBA, the Cabinet Office confirmed that they held some information within scope of the request.

23.

The Cabinet Office advised that the information held was exempt from disclosure under sections 36(2)(b)(i), 36(2)(b)(ii) and 36(2)(c) of the FOIA. The response provided no explanation as to why or how the exemption applied to the specific information requested and gave an entirely generic and inadequate consideration of the public interest test. This was particularly unsatisfactory, given that the Cabinet Office had taken more than six months to provide the response.

24.

The Cabinet Office recognised that there ‘may’ be a public interest argument in favour of disclosing information where this could increase trust in government, increase confidence in the decision making process, or inform the public debate on important matters. However, the Cabinet Office stated that there was also a public interest argument in favour of non-disclosure of the information, ‘in particular to allow the free and frank exchange of views between officials for the purposes of deliberation of advice and to protect against the disclosure of information that might otherwise prejudice the effective conduct of public affairs’. Having weighed these competing interests, the Cabinet Office advised that they had concluded that the balance of the public interest lay in favour of withholding the information.

25.

In addition to section 36, the Cabinet Office advised the complainant that ‘some’ of the information he had requested was exempt under section 40(2) (third party personal data) of the Act. The Cabinet Office stated that disclosure of the information would contravene the first data protection principle, which provides that processing of personal data is lawful and fair. The Cabinet Office stated that section 40(2) is an absolute exemption and they were not therefore obliged to consider whether the public interest favoured disclosing the information.

26.

Finally, the response advised that ‘some’ of the information in scope of the request was exempt under section 21(1) (information reasonably accessible to the applicant) of the Act. The Cabinet Office explained that this exemption applied to correspondence from ACOBA to Ms Patel and provided him with a link to this information (Footnote: ⁵). The Cabinet Office noted that this was an absolute exemption and therefore not subject to the public interest test.

27.

On 16 April 2020 the complainant wrote to the Cabinet Office and advised that he was, ‘most unhappy with the service I received in relation to my request’. He stated:

‘You make no reference to taking over seven months to respond to a request on 3 August. You make no reference to my repeated chasers and appeals for your internal review process, including via your team, the Permanent Secretary, my MP, the PHSO and the ICO. You make no reference to the fact that the ICO issued a decision in my favour requiring you to respond to my request. You provide an (as anticipated) evasive response to my request, simply stating statutory exemptions, without explaining how they apply specifically to this request. The link you provide under the Section 21 exemption returns ‘Page not found’ so the information is not accessible. The exemption has been misapplied. You also insist that the Cabinet Office – presumably including ACOBA, to whom my original request was addressed, holds no information about Ms Patel’s original breach of the Ministerial Code. This suggests the Cabinet Office is not exercising properly its functions under the Code. Finally, you failed even to spell my name correctly. I would therefore like: (a) a review of this request; and (b) an explanation of your failure to provide a full and timely response’.

The complainant copied his request for an internal review to both the Commissioner and his Member of Parliament.

28.

Having not received the internal review requested, the complainant notified the ICO and on 30 June 2020 the Commissioner wrote to the Cabinet Office and requested that, if they had not already done so, that they provide the complainant with the outstanding internal review within 10 working days.

29.

On 19 July 2020, the complainant wrote to the ICO and advised that he had not received the internal review from the Cabinet Office and ‘noting the previous action you have taken in relation to this matter, please will you advise what action the Commissioner proposes to take in relation to the Cabinet Office’s continued breach of your directions’. The complainant noted that he found it particularly concerning that the Cabinet Office’s responsibility, as stated on their website, is to ensure the effective running of the government. He stated that, ‘I would simply be content with it ensuring the Government complies with its own legislation’.

30.

On 16 September 2020 the Cabinet Office provided the complainant with their internal review. The Cabinet Office apologised for the delay in response, which they advised was ‘as a result of the case having been inadvertently overlooked for action’. The Cabinet Office advised that they were ‘improving processes within the relevant team to address this issue’ and were sorry for any inconvenience that the late response had caused.

31.

The Cabinet Office confirmed that they did not hold information relating to ‘Ms Patel’s original breach of the Code’ but that they did hold some information concerning Ms Patel’s application to ACOBA. Again, the Cabinet Office did not rebut the complainant’s assertion about Ms Patel’s original breach of the Ministerial Code. They advised that ACOBA is a separate body to the Cabinet Office. The review provided no further explanation as to why the specific held information was exempt under section 36, simply stating that ‘this is because the information you have requested would, or would be likely to, inhibit the free and frank provision of advice or exchange of views, or would otherwise prejudice the effective conduct of public affairs if disclosed’.

32.

There was no mention of the reasonable opinion of the qualified person, which is required in order to engage section 36, with the review simply stating that the decision to withhold the information under the exemption was ‘appropriate’. Consideration of the public interest test was again generic, with no reference to the actual information requested. The review also upheld the applications of sections 40(2) and 21, noting that the complainant had written to advise that he had subsequently been able to access the link previously provided.

Scope of the case

33.

The complainant contacted the Commissioner on 21 November 2020 to complain about the way his request for information had been handled.

34.

Upon being advised of the Commissioner’s investigation in this matter, the Cabinet Office contacted the Commissioner on 26 February 2021 to advise that in light of the concerns which had been raised about the handling of the complainant’s request, they had decided to undertake a further internal review. The Cabinet Office noted that although an internal review of a decision under section 36 of the FOIA would not ordinarily be undertaken at Ministerial level, in light of the handling of the request to date, they had decided, exceptionally, that it was appropriate for an internal review to be undertaken at that level on this occasion.

35.

The Cabinet Office subsequently wrote to the complainant with their further internal review on 25 March 2021. The (second) internal review maintained the decision of the first, in that it found that the information requested was exempt under section 36 and that some of the information in scope would in any event be withheld on the basis of sections 21 and 40(2). The Cabinet Office confirmed the outcome of the second internal review in submissions to the Commissioner on 26 March 2021.

36.

In the course of his investigation, the Commissioner has had sight of the withheld information and detailed supporting submissions from the Cabinet Office.

37.

The Commissioner considers that the scope of his investigation is to determine whether the Cabinet Office correctly withheld the requested information under the exemptions applied.”