[2025] UKUT 114 (AAC)

Given its potential impact on the public interest balance test, it is, however, right that I should consider in more detail the Tribunal’s treatment of the application of s.36(2)(c) in the light of the ICO’s original decision.

In the original decision notice, the ICO considered that, whilst s.36(2)(b)(i) and (ii) were engaged, s.36(2)(c) was not:

“45.

Having considered the content of the withheld information on the basis of this exemption, and taking into account the qualified person’s above opinion, the Commissioner is satisfied that both sections 36(2)(b)(i) and (ii) are engaged to the withheld information. However, in order for section 36(2)(c) to apply, the prejudice claimed must be different to that claimed under section 36(2)(b) (i.e. must ‘otherwise prejudice’) (Footnote: ¹⁴). As the qualified person’s opinion has not identified what ‘other’ prejudice (i.e. other than that covered by section 36(2)(b)), would be caused by disclosure of the withheld information, the Commissioner does not consider that section 36(2)(c) is engaged in this matter.

...

59.

As noted in paragraph 45 above, as the Commissioner considers that the qualified person’s opinion has failed to establish a prejudice ‘otherwise’ than those covered by section 36(2)(b)(i) and (ii), he has not considered the Cabinet Office public interest arguments in respect of section 36(2)(c).”

By contrast, the Tribunal found that

“34.

The tribunal is therefore satisfied that disclosure in this case would be likely to inhibit the provision of advice, the exchange of views and the ability to gather evidence and weight.”

Given that s.36(2)(b)(i) covers the provision of advice and s.36(2)(b)(ii) the exchange of views, the reference to the gathering of evidence and weight can only sensibly refer to an additional matter, namely prejudice to the effective conduct of public affairs under s.36(2)(c). (Like Mr Perry, I am not sure that I understand the addition of the words “and weight”, but the reference to the gathering of evidence can only sensibly refer to s.26(2)(c).)

That conclusion does not, however, appear easily to follow from the preceding paragraphs [32] and [33] where the Tribunal stated (with emphasis added):

“32.

The first ground of appeal is that the Commissioner erred in law in considering that s36(2)(c) did not apply. The argument advanced by the Cabinet Office based on the evidence of Mr Madden is that for the proper investigation of breaches of such as those under consideration there needs to be the confidence that people coming forward with information will have their confidentiality protected and if this was not the case individuals would be aware that their contributions could be publicly disclosed and may fear reprisals or other personal or professional ramifications:

"it is essential that the Cabinet Office is able to make effective enquiries whenever issues about Ministerial conduct are raised, and to assemble a comprehensive and well-informed picture of the circumstances surrounding such issues in order to effectively handle and respond to them. Any diminution in the candour or quality of advice and views provided to support such processes resulting from the risk of disclosure will prejudice their overall effectiveness".

33.

However, on this occasion there is no issue of a need for witnesses to come forward. The information was in the newspapers and the only issue on this occasion was how the Civil Service would handle the issue and what the Prime Minister would do with the advice of the Civil Service. It is important to recognise that the question raised by s36 is whether the processes would be inhibited in future by the disclosure of the requested information; rather than the specific information itself. The question is whether the proper processes of government – the free and frank exchanges of views and advice and other matters relating to the conduct of public affairs would be impeded by the disclosure. In other circumstances there could well be a need for a careful collection of information and the chilling effect of disclosure in this case (where for example less senior civil servants might not be fully apprised of the specifics of what was disclosed and might consider it was directly relevant to them) would foreseeably have some negative impact on that ability to gather relevant information.”

Having initially stated that “on this occasion there is no issue of a need for witnesses to come forward” and thus (apparently) no engagement of s.36(2)(c), the Tribunal then went on to refer to (a) the question being whether the proper processes of government, namely the free and frank exchanges of views and advice and other matters relating to the conduct of public affairs would be impeded by the disclosure and (b) there being a need for a careful collection of information and the chilling effect of disclosure which would foreseeably have some negative impact on the ability to gather relevant information, suggesting by contrast that it was engaged. The matter is frankly opaque, but the short answer is that paragraph [34] can only be read as engaging s.36(2)(c).

I therefore conclude that the Tribunal did find that s.36(2)(c) was engaged, but that (as the ICO now accepts) its decision in that respect was inadequately reasoned. I shall go on to consider below (a) whether s.36(2)(c) was in fact engaged (contrary to the decision of the ICO) (b) if s.36(2)(c) were engaged, whether that makes any difference to the public interest balancing test.

As to whether s.36(2)(c) was in fact engaged, the Minister of State, Chloe Smith, provided a short opinion running to three paragraphs, the first stating her conclusion that ss.36(2)(b)(i), 36(2)(b)(ii) and 36(2)(c) were engaged and the second stating her conclusion that disclosure of the information in scope of the request would be likely to inhibit the free and frank provision of advice, the free and frank exchange of views for the purposes of deliberation, and would otherwise prejudice, or would be likely to otherwise to prejudice, the effective conduct of public affairs.

However, the last paragraph of her opinion, which was cited by the ICO in his decision notice at [44], stated only that

On that basis the ICO concluded at [45] that

“45.

Having considered the content of the withheld information on the basis of this exemption, and taking into account the qualified person’s above opinion, the Commissioner is satisfied that both sections 36(2)(b)(i) and (ii) are engaged to the withheld information. However, in order for section 36(2)(c) to apply, the prejudice claimed must be different to that claimed under section 36(2)(b) (i.e. must ‘otherwise prejudice’) (Footnote: ¹⁵). As the qualified person’s opinion has not identified what ‘other’ prejudice (i.e. other than that covered by section 36(2)(b)), would be caused by disclosure of the withheld information, the Commissioner does not consider that section 36(2)(c) is engaged in this matter.”

I am satisfied that he was entitled to reach that conclusion on the evidence before him. The third paragraph does not identify what “other” prejudice (i.e. other than that covered by s.36(2)(b)), would be caused by disclosure of the withheld information) and accordingly the ICO was rightly entitled to conclude that s.36(2)(c) was not, on the true construction of the opinion, engaged in the matter.

The whole thrust of that third paragraph is to do with the provision of advice and the free and frank exchange of views (with emphasis added):

“It is necessary that officials are able to consider and discuss arguments as to whether the requirements set out in the Business Appointment Rules and the Ministerial Code have been complied with in a particular case in a free and frank manner. Such free and frank discussions allow them to come to a position so that they may provide advice to Ministers. This is important when discussions relate to a serving Minister. Disclosure, or fear of disclosure, of such conversations may deter officials from taking part in these deliberations frankly, which is likely to be harmful to the quality of such discussions. I am satisfied that there is a real risk that this is likely to happen.”

In short, if the exemption were to be upheld in relation to s.36(2)(c), the qualified opinion would have had to be more detailed and more explicit than it was. It is not in dispute that the opinion of the qualified person was a reasonable one, but the exemption in relation to the particular subsection only bites if the opinion of the qualified person actually engages that subsection in the first place. This one was too brief and did not, although it did engage both limbs of subsection (b).

The Cabinet Office’s riposte is that the additional or other prejudice was instead covered by the evidence of Mr Madden. Mr Madden, of course, was not the qualified person for the purposes of s.36, but the Cabinet Office’s point was that Mr Madden’s evidence was relevant to the question of the public interest balance in deciding whether or not the withheld material should be disclosed. Paragraphs 19 to 24 of his witness statement covered the provision of advice under s.36(2)(b)(i), paragraphs 25 to 26 the free and frank exchange of views under s.36(2)(b)(ii) and paragraphs 27 to 32 other prejudice to the effective conduct of public affairs under s.36(2)(c). I accept the Cabinet Office’s submission that Mr Madden’s evidence is relevant to the question of the public interest balance in deciding whether or not the withheld material should be disclosed, but in my judgment that does not advance the Cabinet Office’s case.

It is not in dispute that s.36(2)(c) concerns situations where disclosure “would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of affairs” and that it cannot not apply to a situation properly covered by ss.(2)(a) or (b)(i) or (ii): see Evans at [53] and McIntyre at [25].

I agree, however, with the submissions of Mr Perry that, when analysed, the main thrust of those latter paragraphs of Mr Madden’s evidence, which purported to address s.36(2)(c) are, when read as a whole, in fact concerned with the importance of the free and frank provision of advice and views.

Thus, paragraph 28 states that the Prime Minister must be given “robust advice about potential breaches” and in that context that the Cabinet Office “is able to notify and provide accurate information to ACOBA” (i.e. to advise it or to provide views to it).

Paragraph 29 focuses on “individuals being willing to come forward and participate, and on their full cooperation and frankness”, and on the “quality and frankness of any information they provide”.

Paragraph 30 considers the risks of “[a]ny diminution in the candour or quality of advice and views”.

Paragraph 31 considers the “broader importance to the public of the Cabinet Office maintaining a well-functioning system for handling complaints underpinned by assurances of confidentiality which are upheld other than in exceptional cases”, but that is concerned with the consequential benefits of protecting candour.

In substance, what is apparent from Mr Madden’s evidence is that the prejudice which is said to arise in relation to s.36(2)(c) is in essence the same as, and flows directly from, the chilling effect and candour-type prejudice already identified in relation to s.36(2)(b)(i) and (ii). There is no distinct and separate head of prejudice in relation to s.36(2)(c); the chilling effect and candour points already fall squarely within s.36(2)(b)(i) and (ii).

Moreover, I also agree with Mr Perry that, in any event and even if s.36(2)(c) were engaged, contrary to the view of the ICO and my own conclusion, the matter is really one of form rather than substance for the purposes of the public interest balance. It is clear that any additional prejudice alleged by the Cabinet Office is inextricably linked to its candour and chilling effect arguments.

In other words, if the Cabinet Office succeeds on s.36(2)(b)(i) and (ii), it does not need s.36(2)(c), but if it fails on s.36(2)(b)(i) and (ii), s.36(2)(c) is not a trump card which will nevertheless win the trick.

The Cabinet Office sought to rely on Malnick at [65-66] for the proposition that it ought to follow that the ICO’s conduct of the public interest balance was flawed because the question of broader evidence in relation to s.36(2)(c) had not been considered, but those paragraphs add nothing to its case. In my judgment, those matters did not fall to be considered because s.36(2)(c) was not engaged and, even if it had been, the outcome of the case would have been the same, but in any event those paragraphs in Malnick turn on the particular facts of that case as to the weight to be accorded to the qualified person’s reasonable opinion and lay down no rule that the ICO’s conduct of the public interest balancing exercise was necessarily flawed were it the case that s.36(2)(c) was in fact engaged.

Equally, I did not find much assistance in what was said in Alexander at [134-138]. I have no reason to doubt the correctness of what was said in Alexander, although I take the point that what was said was said in the context of submissions about chilling effect in relation to the applicability of the s.36(2) exemption, rather than the weight to be afforded to that exemption in the public interest balance. As with Malnick, the relevant paragraphs in Alexander turn on the particular facts of that case as to the weight to be accorded to the qualified person’s reasonable opinion and lay down no rule that the ICO’s conduct of the public interest balancing exercise was necessarily flawed were it the case that s.36(2)(c) was in fact engaged.

In reality, I suspect that there was no real or significant difference between the parties as to the principles behind the relative weight to be accorded to the evidence of Mr Madden; the real point of cleavage between them was the application of those principles to the facts of this case.