[2025] UKUT 114 (AAC)

It was Mr Perry’s submission that the case was an exceptional one, or one out of the norm, and that that factor militated in favour of disclosure.

That was the point made by the ICO in the decision notice at [96] where it was held that the case was exceptional and in most cases senior officials could have reasonable confidence that their advice and exchanges would not be publicly disclosed.

By contrast, it was one of Mr Coppel KC’s headline submissions that that submission was fundamentally misconceived because it could not be known, at the time of the discussions within the Cabinet Office about the Viasat appointment, whether or not the facts of the case would subsequently be found to be exceptional. At the time when the civil servants within the Cabinet Office were considering the matter which later became the subject of a FOIA request, they were not in possession of an oracle or a crystal ball which would enable them to divine what would later be the outcome of the request. The ICO was determining that question with the benefit of hindsight and it was inappropriate for him to do so to rectify what he saw as gaps in the political process by the ex post facto application of FOIA.

The ICO countered that by making clear that he had never suggested that civil servants would be able to appreciate at the time of advice and discussions whether the circumstances were exceptional or that the public interest would favour disclosure. Rather the point was that, if disclosure were ordered in this case, they would know that the circumstances giving rise to disclosure were exceptional or out of the norm, and would therefore not be discouraged from expressing themselves frankly and freely in future. I accept and endorse that submission.

More fundamentally, however, the problem with Mr Coppel KC’s argument is that, if it is correct, it would preclude disclosure in every case since ex hypothesi it would never be known at the time of the advice and discussions whether the ICO would subsequently determine that the circumstances were exceptional or that the balance of the public interest favoured disclosure.

As Mr Perry rightly submitted, if the Cabinet Office’s argument were correct, it would mean that unform weight would have to be ascribed to transparency and accountability in all cases. It would make no difference if ACOBA had commented on the retrospective nature of the application nor that the Prime Minister had investigated the matter; it would be impermissible for the ICO to take such matters into account and that cannot be right.

In fact Mr Coppel KC’s argument lose much of its force in any event when regard is had to the matters to which I refer in paragraphs 219 to 222 below.