[2025] UKUT 114 (AAC)

Given that neither party now seeks to uphold the decision of the Tribunal (and both are agreed that it should be set aside and remade), it is appropriate to set out the original decision of the ICO at some length (some, but not all, of the salient paragraphs were set out in paragraphs 12 to 21 of the Tribunal’s decision)

“39.

In deciding whether section 36(2)(b) is engaged the Commissioner must determine whether the qualified person’s opinion was a reasonable one.

40.

Further, in determining whether the opinion is a reasonable one, the Commissioner takes the approach that if the opinion is in accordance with reason and not irrational or absurd – in short, if it is an opinion that a reasonable person could hold – then it is reasonable. This is not the same as saying that it is the only reasonable opinion that could be held on the matter. The qualified person’s opinion is not rendered unreasonable simply because other people may have come to a different (and equally reasonable) conclusion. It is only not reasonable if it is an opinion that no reasonable person in the qualified person’s position could hold. Nor does the qualified person’s opinion have to be the most reasonable opinion that could be held; it only has to be a reasonable opinion.

41.

In submissions to the Commissioner the Cabinet Office advised that the necessary reasonable opinion in this matter was originally sought from the then Minister for the Cabinet Office, Oliver Dowden, on 6 February 2020 and was given on 12 February 2020. The Cabinet Office subsequently provided the complainant with their substantive request response on 23 March 2020.

42.

However, as noted above, following notification of the Commissioner’s investigation, the Cabinet Office, unusually, undertook a further internal review into their decision in this case, which included a second reasonable opinion being obtained from the qualified person. As the Commissioner’s guidance notes, section 36 can still be engaged if the qualified person gives their reasonable opinion by the completion of the internal review.

43.

In this case the Cabinet Office sought the reasonable opinion of the qualified person, Chloe Smith, the then Minister of State for the Constitution and Devolution on 11 March 2021, and the Minister gave her reasonable opinion on 12 March 2021. The Minister was provided with a rationale as to why section 36(2)(b) and (c) could apply and copies of the withheld information. The Minister’s reasonable opinion was that the exemption was engaged as 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.

44.

The Minister stated that:

‘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’.

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: ⁶). 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.”

The ICO then considered the public interest test:

“Public interest test

46.

Section 36 is a qualified exemption and in accordance with the requirements of section 2 of the Act the Commissioner must consider whether in all the circumstances of the case the public interest in maintaining the exemption cited outweighs the public interest in disclosing the information.

47.

In considering complaints regarding section 36, where the Commissioner finds that the qualified person’s opinion was reasonable, he will consider the weight of that opinion in applying the public interest test. This means that the Commissioner accepts that a reasonable opinion has been expressed that prejudice or inhibition would, or would be likely to occur but he will go on to consider the severity, extent and frequency of that prejudice or inhibition in forming his own assessment of whether the public interest test dictates disclosure.

48.

It is important to be clear that the exemptions contained in section 36 focus on the processes that may be inhibited, rather than what is in the withheld information. The issue is whether disclosure would inhibit the processes of providing advice or exchanging views. In order to engage the exemption, the information requested does not necessarily have to contain views and advice that are in themselves notably free and frank. On the other hand, if the information only consists of relatively neutral statements, then it may not be reasonable to think that its disclosure could inhibit the provision of advice or the exchange of views.”

He then set out the position of the Cabinet Office:

“The position of the Cabinet Office

49.

In their further (second) internal review provided to the complainant on 25 March 2021, the Cabinet Office acknowledged that ‘there is an argument that disclosure of the information may deepen public understanding of the way in which allegations around compliance with the Business Appointment Rules, and the Ministerial Code are treated and therefore lead to more informed public consideration of, and assurance around, the same’.

50.

However, the Cabinet Office contended that there was a very strong public interest in withholding the information which outweighed the public interest in disclosure of the same. The Cabinet Office stated that in considering the public interest test, it is important to note that the test is not necessarily the same as what interests the public. The Cabinet Office stated that, ‘the fact that a topic is discussed in the media does not automatically mean there is a public interest in disclosing the information that has been requested’. The Cabinet Office noted that this position is recognised and outlined by the ICO in the Commissioner’s published guidance online. The Cabinet Office contended that, ‘there is no compelling factor in this case that overrides the very strong public interest in maintaining the confidentiality of this information’.

51.

In submissions to the Commissioner the Cabinet Office acknowledged ‘the existence of a public interest in disclosing the information in issue’. The Cabinet Office stated that the following considerations would support disclosure of the requested information:

• Ministers are public figures in respect of which certain standards of propriety are rightly expected. The importance of transparency is recognised, especially in relation to Ministers. It is important that Ministers remain accountable and that they conduct themselves in accordance with the rules and/or the Code. There is consequently a public interest in disclosing information around how allegations against Ministers were treated.

• Transparency in relation to the handling of complaints which may engage the Code may increase public confidence in the way in which such allegations are handled within government.

• The information in question is now almost two years old, and so might not be thought to relate to a live issue.

• Civil servants are expected to be impartial and robust when exchanging views and giving advice, and ought not to be easily deterred from expressing their views by the possibility of future disclosure.

52.

The Cabinet Office provided more detail as to the public interest arguments in favour of maintaining the exemption in their submissions to the Commissioner on 26 March 2021. The Cabinet Office stated that:

• Appropriate weight should be accorded to the reasonable opinion of the Minister, who has relevant expertise and has determined that disclosure would be likely to prejudice the effective conduct of public affairs.

• The present context is one where the chilling effect of disclosure is likely to be especially strong. This is because the information sought relates to the enquiries, deliberations, and advice of officials in relation to allegations of misconduct against very senior figures in government. The personal and political consequences of any finding of a breach of the Code can be severe. In those circumstances, the effect of disclosure in deterring civil servants from freely expressing their views on such acutely sensitive matters is readily understandable.

• Any benefits to public confidence in the way in which such allegations are handled within government are likely to be outweighed by the cost of undermining the effective operation of the Code and, by extension, Ministerial accountability before the Prime Minister and Parliament.

• The information sought relates to an issue which was live at the time that the request was made and remains so. The individual against whom the allegations are made remains a serving Minister, and so the operation of the Code remains in place as an important document setting out the standards of conduct expected of Ministers.

• Much of the public interest in disclosure has been satisfied by the information that is already in the public domain, namely, the letters of advice published by the Advisory Committee on Business Appointments (ACOBA) in respect of the Home Secretary’s business appointments (Footnote: ⁷) .

53.

In their submissions to the Commissioner, the Cabinet Office advised that the Ministerial Code sets out the standards of conduct expected of Ministers, offering guidance as to how Ministers should act and arrange their affairs in order to uphold those standards. The Code ‘should be read against the overarching duty on Ministers to comply with the law and to observe the seven principles of public life’. The Cabinet Office highlighted Paragraph 1.6 of the Code, which states that, ‘Ministers are personally responsible for deciding how to act and conduct themselves in the light of the Code and for justifying their actions and conduct to Parliament and the public’. Paragraph 1.6 also makes clear that the Prime Minister is the ultimate arbiter of any breach.

54.

Pursuant to Paragraph 1.4 of the Code, if the Prime Minister considers that an allegation warrants further investigation, he may ask the Cabinet Office to investigate the facts of the case and/or refer the matter to the independent adviser on Ministers’ interests. The Cabinet Office contended that it is ‘accordingly essential that officials, and in particular officials in the Cabinet Office, are able to consider allegations about the conduct of Ministers, and to freely deliberate and accurately advise on such allegations’.

55.

The Cabinet Office contended that in the event of the withheld information being disclosed, there would be the risk of a serious chilling effect, which would in turn, inhibit the free and frank provision of advice. The Cabinet Office stated as follows:

• It is important that officials are able to assess the complaint and the facts relating to as to whether they engaged the BARs and/or the Code. Whenever a complaint is received it will be reviewed by the Cabinet Office. Some complaints may need further assessment in order to determine the position in relation to any alleged breach. It is only on the basis of such an assessment that officials can provide accurate advice.

• Officials may be prejudiced in their future efforts to assess the complaint and the facts relating to as to whether they engaged the BARs and/or the Code as individuals are discouraged in future from candidly expressing their views or sharing relevant information.

• Disclosure of this information may also deter officials from recording information in respect of complaints of this nature in the future.

• The force of the chilling effect is especially acute in circumstances where the relevant information necessarily relates to the conduct of very senior figures in Government. Any diminution of the quality of the exchange of views and/or the provision of advice, through concerns that candid views would be publicly disclosed, would lead to a less informed picture with significant repercussions

• The implications of a chilling effect would be very serious. It would result in a less comprehensive and accurate assessment of the facts, with the consequence that officials would be less equipped to provide frank and effective advice in relation to any complaints alleging breaches of the Code and/or the BARs.

56.

The Cabinet Office also contended that officials needed a ‘safe space’ to consider and respond to complaints alleging breaches of the Code and/or the BARs. The Cabinet Office stated that as the Code serves as broad guidance in setting out the standards of conduct expected of Ministers, ‘it necessarily follows that complaints received will be broad in nature’. The Cabinet Office advised that there is no prescribed process for dealing with complaints and that whilst all complaints which are received are reviewed, it will be clear that some complaints do not relate to the Code. The level of assessment that each complaint receives will depend on the nature of the complaint and ‘determinations are made on a case by case basis as to the procedure to be followed’.

57.

The Cabinet Office advised that not every allegation would warrant full investigation; not every assessment or investigation will result in a finding of breach; and not every breach is of the same severity or nature. Further, the Cabinet Office stated that ‘the Code makes clear that it is for Ministers to justify their actions and conduct to Parliament and the public, there may be circumstances where the Minister does that and so there is no investigation whatsoever’. The Cabinet Office advised that where a breach is found, the consequences which may flow from a finding of breach are various, up to and including resignation. Therefore, in order to provide free and frank advice and exchange views for the purposes of deliberation as to the appropriate response to allegations relating to the Code, the Cabinet Office contended that officials require a space free from the external pressures exerted by the risk of public disclosure.

58.

The Cabinet Office contended that the considerations relating to the need for a ‘safe space’ were especially strong under section 36(2)(b)(ii) ‘as it is the frank exchange of views which plays an essential role in determining an appropriate response to complaints in which it is alleged that there has been a breach of the BARs and/or the Code’. The Cabinet Office contended that disclosure of the withheld information would be likely to substantially inhibit future deliberations as to whether the BARs or Code is engaged. ‘It follows that the opinion of the Minister on this issue is plainly a reasonable one’.

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).”

The ICO then set out his position and his decision as follows:

“Commissioner’s position

60.

During the course of his investigation, and in correspondence with the Cabinet Office, the Commissioner had referred to Ms Patel having breached the Ministerial Code, prior to her resignation as Secretary of State for International Development in November 2017. This reference was based upon the wording of Ms Patel’s resignation letter dated 8 November 2017, the FOI request of 3 August 2019, the Cabinet Office refusal notice of 23 March 2020, and the internal review response of 16 September 2020. The Cabinet Office strongly objected to this and stated that ‘there has never been any finding that the Home Secretary has committed a breach of the Code’. The Cabinet Office emphasised that ‘the Code itself makes clear that only the Prime Minister is entitled to make any determination of a breach. No such finding has been made in respect of the Home Secretary, whether in November 2017 or since’.

61.

The Commissioner entirely accepts that it is only the Prime Minister who has the power to decide whether a minister has breached the Ministerial Code. However, the Commissioner considers that the specific wording of Ms Patel’s own resignation letter makes perfectly clear that she herself considered her conduct fell below expected standards and that is also accepted and reflected in Mrs May’s response.

62.

In her resignation letter to Mrs May, which was widely disseminated in the public domain, Ms Patel stated that, ‘I accept that in meeting organisations and politicians during a private holiday in Israel my actions fell below the standards that are expected of a Secretary of State’. Ms Patel added that ‘while my actions were meant with the best of intentions, my actions also fell below the standards of transparency and openness that I have promoted and advocated’. In her reply, Mrs May informed Ms Patel that, ‘now that further details have come to light, it is right that you have decided to resign and adhere to the high standards of transparency and openness that you have advocated’.

63.

Ms Patel’s actions prompted her immediate resignation. There may not have been any formal finding by Prime Minister May as to whether Ms Patel had breached the Ministerial Code but arguably that was only because Ms Patel’s resignation made a formal finding superfluous.

64.

To be clear, in referencing Ms Patel’s ministerial history, the Commissioner does not seek in any way to encroach upon the jurisdiction and remit of the Prime Minister as sole arbiter as to determining breaches of the Ministerial Code, but is recognising the public interest which lies behind the complainant’s request and is referenced in the same.

65.

The Commissioner notes that in a previous decision FS507959018 (October 2019) (Footnote: ⁸), he similarly recognised that there was a significant and strong public interest in knowing why a former Foreign Secretary (as the current Prime Minister was at the time of that request) with a particularly high public profile, failed to comply with his duty under the Ministerial Code and seek ACOBA’s advice prior to taking up a position as a columnist for The Telegraph.

66.

In that case the Commissioner noted that the public interest was particularly prominent as that was not the only case in recent years where a former senior government minister had been found not to have complied with the BARs. In April 2017, ACOBA noted that it was ‘a matter of regret’ that former Chancellor of the Exchequer, George Osborne’s appointment as Editor of the Evening Standard was announced on 17 March 2017, only four days after Mr Osborne had submitted his application to ACOBA and before the Committee had an opportunity to make the necessary enquiries, consider his application and provide its advice. In a letter to Mr Osborne (published on the ACOBA website) of 28 April 2017, the Committee stated that it was not appropriate for him to have signed his contract of employment with the Evening Standard on 20 March 2017, without having received the Committee’s advice.

67.

Given that the Cabinet Office have been clear with the Commissioner about the technical accuracy that there has never been a finding that the Home Secretary has committed a breach of the Ministerial Code, it is unfortunate and regrettable that the Cabinet Office was not similarly clear with the complainant. Both in their substantive response to the complainant of 23 March 2020 and subsequent internal review of 16 September 2020, the Cabinet Office informed the complainant that they held no information about ‘Ms Patel’s original breach of the Code’. By omitting the important word ‘alleged’, the Cabinet Office arguably impliedly accepted that there had been a previous breach of the Code by Ms Patel (which was the complainant’s belief). The Cabinet Office could and should have made clear to the complainant that they held no such information because Ms Patel had never been found to be in breach of the Ministerial Code (i.e. no such information could be held).

68.

In submissions to the Commissioner, the Cabinet Office contended that the Commissioner’s consideration of allegations against the Home Secretary and information in the public domain concerning the same ‘represents a serious departure from its proper remit’. The Cabinet Office further asserted that ‘it is not appropriate for the ICO to undertake any detailed engagement with party political statements or to speculate about allegations of misconduct against senior Ministers’.

69.

There is a clear and strong public interest in knowing that Ministers abide by and respect the Ministerial Code, and where there are grounds for suspecting that they may not have done, there is an important and obvious public interest in transparency and accountability as to what the consequences are (if any) for any Minister who has not abided by their obligations under the Code. In stating this, the Commissioner is absolutely clear that it is not for him to determine whether or not Ms Patel breached the Ministerial Code, that determination being for the Prime Minister alone as the Cabinet Office has correctly stated.

70.

However, the Commissioner considers that it is not only appropriate, but essential, that in the context of this case, he recognises and considers the public interest attached to the withheld information. This is in no way a ‘serious departure’ from the Commissioner’s well established and consistent approach.

71.

It is a fact that Ms Patel accepted her role at Viasat before seeking advice from ACOBA. It is also a fact that the Ministerial Code is very clear that departing ministers (as Ms Patel was at that time) must seek advice from ACOBA about any appointments or employment which they intend to take up within two years of leaving office before accepting any such role(s). It is therefore unsurprising that questions should be asked as to whether Ms Patel was in breach of the Code.

72.

That public interest is given particular prominence in the present case because of the wider context and history in which Ms Patel’s adherence to the standards required of Ministers has been called into question. The Commissioner has already addressed the circumstances of her resignation as Secretary of State for International Development above. More recently, on 29 February 2020 Home Office Permanent Secretary, Sir Philip Rutnam, resigned and alleged that he had been subject to a ‘vicious and orchestrated campaign’ for challenging alleged mistreatment of civil servants by the Home Secretary.

73.

As the Upper Tribunal recently confirmed in Montague v The Information Commissioner and The Department of Trade (UA-2020-000324 & UA-2020-000325) [13 April 2022], the time for judging the competing public interests in a request is at the date of the public authority’s decision on the request under Part 1 of the FOIA and prior to any internal review of the initial decision (Footnote: ⁹).

74.

On 29 February 2020, Sir Philip Rutnam resigned from his post for the reasons set out above. On 2 March 2020, the then Minister for the Cabinet Office, Michael Gove, confirmed that his department would investigate alleged breaches of the Ministerial Code by the Home Secretary. The Commissioner therefore considers that at the time of the Cabinet Office initial refusal notice on 23 March 2020, there was a strong and legitimate public interest in transparency and accountability concerning Ms Patel’s compliance with the Ministerial Code.

75.

In supplemental submissions to the Commissioner, the Cabinet Office clarified the apparent contradiction between their having stated that ‘the information in question is now almost two years old, and so might not be thought to relate to a live issue’, and ‘the information sought relates to an issue which was live at the time that the request was made and remains so’.

76.

The Cabinet Office stated that their reference to the issue remaining live was in the sense that the Minister in question is a serving minister and that has a ‘live’ and direct impact on those providing the advice in this case as well as the future chilling effect. In respect of their second statement, the Cabinet Office advised that ‘we were simply making the point, in relation to the public interest test, that the matters specific to the held information/complaint were arguably not under live consideration’.

77.

In respect of the issue which was central to the complainant’s request, namely, Ms Patel’s alleged breach of the Ministerial Code in failing to notify ACOBA before taking up her role at Viasat, the Cabinet Office informed the Commissioner that the outcome/response in respect of the complaint which was made to the Prime Minister by Mr Trickett was not within the scope of the current request. The Cabinet Office also stated that they did not consider ‘this in any sense a relevant issue to the matters in hand’. The Cabinet Office further contended that ‘of further relevance to transparency as to complaints is the publication of the correspondence of ACOBA, which satisfies the public interest’. The Commissioner considers that the Cabinet Office are fundamentally mistaken on both of these latter points.

78.

Firstly, what action (if any) taken by the Prime Minister in response to the complaint about the Home Secretary has a key bearing on the public interest weight and value of the withheld information. If, for example, there was information in the public domain which recorded that the Prime Minister had considered the complaint made by Mr Trickett but was of the view that Ms Patel had not breached the Ministerial Code, then that information would at least show that a complaint which was clearly grounded on credible evidence, had been considered (even if rejected) by the Prime Minister. That is to say, there would be some degree of transparency and accountability which met the important public interest in knowing that such issues are treated with due weight and seriousness by Government (or the Prime Minister specifically in this case). As it is, the Commissioner is not aware that there is any such information in the public domain.

79.

Secondly, and crucially, the Cabinet Office reference to the correspondence published by ACOBA and their contention that ‘much of the public interest in disclosure has been satisfied’ by this correspondence is plainly incorrect in this case, for a very simple reason. The letter published by ACOBA in respect of Ms Patel’s role at Viasat, is dated July 2019 (Footnote: ¹⁰). In their letter of advice, ACOBA applied three conditions to the appointment and asked Ms Patel to ‘inform us as soon as you take up this role’. However, unbeknownst to ACOBA at the time of their letter of advice, Ms Patel had already taken up the role at Viasat before she sought the Committee’s advice. That is to say, Ms Patel had made a retrospective application to ACOBA.

80.

ACOBA’s Annual Report (2019 & 2020) states (at para 21) that ‘a retrospective application is one where an appointment or employment has been taken up or announced before the Committee has provided its full and final advice. This is a breach of the Government’s Rules’ (Footnote: ¹¹). The Reports goes on to state (para 23) that ‘there may be unusual or extenuating circumstances where the Committee may choose to consider the retrospective application. This will not be the norm. in these cases, the Committee will still make clear it is not acceptable to submit an application retrospectively’.

81.

In FS50795901, concerning Mr Boris Johnson’s appointment as a columnist at The Telegraph, following his resignation as Foreign Secretary in July 2018, ACOBA, in a letter to Mr Johnson dated 8 August 2018 and published on their website, stated that they considered ‘it to be unacceptable that you signed a contract with The Telegraph and your appointment was announced before you had sought and obtained advice from the Committee, as was incumbent upon you on leaving office under the Government’s Business Appointment Rules’. In that case, the Commissioner found, in upholding section 36, that the public interest in transparency and accountability had been appropriately and proportionately met by ACOBA’s publishing of its letter to Mr Johnson. However, the Commissioner noted that had ACOBA not placed such information in the public domain, then the withheld information would have assumed a greater weight and significance.

82.

By contrast, that case can be distinguished from the present case in which there has been no such transparency or accountability surrounding Ms Patel’s own apparent failure to abide by the Rules. ACOBA’s letter to Ms Patel of July 2019 does not criticise her for making a retrospective application because at the time that they provided their advice, they were clearly unaware that she had done so. It is concerning that the Cabinet Office should contend that the published correspondence from ACOBA satisfies much of the public interest in this case when it cannot possibly do so.

83.

ACOBA state (para 24) in their Annual Report that it ‘deploys transparency to hold individuals to account, publishing the correspondence concerned. The Committee takes this approach in order to draw attention to the failure to submit an application and to encourage wider compliance with the Government’s Rules’. However, as noted, in respect of Ms Patel, there is no published correspondence from ACOBA holding her to account for her retrospective application.

84.

Furthermore, the Commissioner considers that the public interest deficit in transparency and accountability in this case is increased. Firstly, there is no transparency (unlike in the aforementioned cases of Mr Osborne and Mr Johnson) in respect of Ms Patel’s apparent failure to abide by the Rules in respect of seeking advice from ACOBA. Secondly, there is also, as noted above, no information in the public domain in respect of any outcome of the complaint made by Mr Trickett about Ms Patel having allegedly breached the Ministerial Code, which is central to the complainant’s information request.

85.

The Commissioner has had sight of the withheld information, which concerns the allegation that in taking up her role at Viasat before seeking advice from ACOBA (Footnote: ¹²), Ms Patel was in breach of the Ministerial Code. The Commissioner entirely recognises and accepts that the information is sensitive and that in order to provide free and frank advice as to the appropriate response to allegations relating to the Code, officials require a safe space free from the external pressures exerted by the risk of public disclosure.

86.

The Cabinet Office have contended that this safe space is ‘even more important given that allegations that Ministers, or former Ministers, have acted in breach of the standards of behaviour expected of them can cause significant reputational damage to Ministers, who are public figures, and to the Government’. The Commissioner would agree that unsubstantiated or baseless allegations about the conduct of Ministers or former Ministers, can cause significant reputational damage and it would be irresponsible and unfair to the individual Minister(s) concerned to disclose any information which would foster or encourage any such allegations.

87.

However, as the Cabinet Office rightly note, Ministers are public figures, with huge influence and power on public policy and decisions that affect citizens’ everyday lives. The public rightly expect Ministers to behave in a manner which respects the rules and codes of conduct to which Ministers agree to follow and adhere to. Therefore, where evidence suggests that a Minister may not have followed or adhered to the BARs or the Ministerial Code, they should expect a certain degree of legitimate and necessary transparency and accountability in relation to their actions or conduct.

88.

At the time of the complainant’s request, Ms Patel had returned to Government in her current position as Home Secretary, a position of significant responsibility, influence and decision making power that is publicly accountable.

89.

In her resignation letter to Prime Minister May in November 2017, Ms Patel acknowledged that her actions (when in post of Secretary of State for International Development) ‘fell below the standards of transparency and openness that I have promoted and advocated’. The Commissioner considers this self assessment to be important and relevant in the present case, since the evidence suggests that Ms Patel was not entirely open and transparent with ACOBA about her role at Viasat (i.e. in approaching the Committee for their advice, she did not tell them that she had already taken on the Viasat role).

90.

These incidents, and the bullying matter referenced above, tend to suggest an inconsistent approach to compliance by Ms Patel with the behavioural standards expected of Ministers. Importantly, this approach is founded on demonstrable facts and evidence, rather than rumour and speculation.

91.

Whilst it is a matter for the Prime Minister of the day to decide whether a Minister has breached the Ministerial Code, there is an important and entirely legitimate public interest in transparency and accountability as to the outcome of any serious and credible complaints made against a serving Cabinet Minister, especially where, as here, there is a history of an inconsistent approach to compliance with the behavioural standards expected of Ministers by that Minister.

92.

The Cabinet Office have contended that the chilling effect of disclosure is likely to be especially strong in this case, because the withheld information relates to the enquiries, deliberations and advice of officials in relation to allegations of misconduct against Ms Patel. As the Commissioner’s well established guidance on section 36 makes clear, civil servants and other public officials are expected to be impartial and robust when giving advice, and not easily deterred from expressing their views by the possibility of future disclosure. It is also possible that the threat of future disclosure could actually lead to better quality advice. Nonetheless, chilling effect arguments cannot be dismissed out of hand. Such arguments are likely to be most convincing where the issue in question is still live.

93.

In this case whilst the Commissioner certainly does not discount the risk of a chilling effect and accepts that such arguments have relevance given the frank and candid nature of the withheld information, he is not minded to give such arguments substantial weight, for the following reasons.

94.

Firstly, most of the officials who are named in the withheld information and whose exchanges comprise the same, occupied very senior roles at the time and had significant public profiles. The Commissioner considers that the individuals in question would therefore be expected to be robust when providing advice and not easily deterred by the possibility of such information being disclosed. Indeed, given their roles, the Commissioner considers that they should appreciate the need for maximum transparency and accountability in matters such as this.

95.

Secondly, whilst the Cabinet Office have not been clear with the Commissioner as to whether the issue of Ms Patel’s alleged breach of the Rules was finalised or not, despite this factor clearly having a key bearing on the strength of the safe space arguments propounded, they have confirmed that they consider the issue to be live in the sense that Ms Patel remains a serving Minister and this has a direct impact on those providing the advice in this case as well as the future chilling effect.

96.

The Commissioner is not persuaded that disclosure of the specific information in this case would have a significant chilling effect in future such cases. As the Cabinet Office is aware, the Commissioner considers each case on its own individual facts and circumstances, and the respective public interest arguments will necessarily differ from case to case. This case is exceptional and in most cases senior officials could have reasonable confidence that their advice and exchanges would not be publicly disclosed, and not whilst a matter was ‘live’.

97.

In assessing the public interest balance in this case, the Commissioner has had due regard to the reasonable opinion of the qualified person, Ms Smith. The Commissioner entirely accepts that it is necessary for officials to be able to consider and discuss arguments as to whether the requirements of the Rules and the Code have been complied with in a free and frank manner. Such discussions facilitate the arriving at a position whereby informed advice can be provided to Ministers.

98.

As previously noted, section 36 is primarily concerned with protecting the processes of advice and deliberation and ensuring that these are not inhibited. The Commissioner considers that there is a strong and important public interest in providing and protecting the safe space which allows officials to have such discussions and exchanges. Where information relates to discussions and exchanges about a particular issue that are still ongoing, the Commissioner also considers that public interest arguments as to the chilling effect will have weight and relevance.

99.

In this particular case, the Commissioner considers that the content and sensitivity of the withheld information is the key factor which has a bearing on both sides of the respective public interest arguments. The Commissioner recognises that the content of the withheld information is frank and candid in nature, such that there are strong public interest grounds for protecting its confidentiality. Such is the strength of that public interest that the Commissioner considers that there would need to be a specific and compelling public interest factor for the public interest in maintaining the exemption to be outweighed.

100.

The Cabinet Office have contended that there is no such compelling public interest factor in this case. The Commissioner strongly disagrees with this contention, for the following reasons.

101.

In respect of the serious matter which underlies the complainant’s request, namely, the allegation that in failing to approach ACOBA for advice before taking up her role at Viasat, Ms Patel breached the Rules and therefore the Code, there has been, to date, no due transparency or accountability. There has been no published letter to Ms Patel from ACOBA, reprimanding her for her retrospective application, as there usually is in such cases. ACOBA’s letter to Ms Patel of July 2019 cannot, for the reasons explained, provide any such transparency or accountability. Furthermore, to the best of the Commissioner’s knowledge, there has been no public announcement or statement from the Cabinet Office as to the outcome/conclusion of the consideration of Mr Trickett’s complaint (as reported in the press) to the Prime Minister about Ms Patel having allegedly breached the Code.

102.

In the absence of the usual ACOBA letter, or published statement from the Cabinet Office, there is no transparency or accountability in respect of a serious matter which clearly requires both. The Commissioner considers that this notable and unusual lack of transparency and accountability risks undermining public confidence in being assured that government handles such allegations in a robust and consistent manner and risks strengthening a possible public perception, created by the controversial outcome of the bullying inquiry, that the Home Secretary may be being protected from the consequences of her actions or behaviour. The Commissioner has expanded upon this in a Confidential Annex to this notice.

103.

Having had sight of the withheld information, the Commissioner considers that its disclosure would provide the valuable transparency and accountability, that is currently missing (and shows no sign of being provided in future) in respect of the serious allegation made against Ms Patel in respect of her dealings with ACOBA regarding her previous Viasat role. It is important to be clear that reputational harm to ministers is not a relevant public interest argument/consideration in relation to section 36.

104.

As previously noted, the Commissioner is not persuaded that the Cabinet Office arguments as to the future chilling effect have strong or realistic application to some of the individual officials named in the withheld information, given their senior and public facing roles. However, in respect of more junior and non-public facing officials named in the withheld information, the Commissioner considers that the risk of a future chilling effect, both upon them personally and with regard to departmental junior officials more widely, is a real and credible one, such that the public interest balance supports maintaining the exemption to their identities. The Commissioner has detailed in the Confidential Annex those names where he considers the public interest in disclosure of the names and positions outweighs the public interest in maintaining the exemption. The Commissioner notes that the Cabinet Office have not also applied section 40(2) to the individuals in question.

105.

In conclusion, the Commissioner considers that the public interest arguments both for and against disclosure of the information in this case are strong and quite finely balanced. However, in the Commissioner’s view, what tips the balance decisively in favour of disclosure is the lack of public transparency and accountability in respect of the serious allegation made against Ms Patel, when seen in the relevant and important context of the two previous examples, referenced above, when the Home Secretary’s behaviour did not accord with the high standards and conduct required and expected of Ministers, albeit it is accepted that there was no formal finding of a breach of the Ministerial Code in either case.

106.

The Commissioner is therefore satisfied that the exemptions at sections 36(2)(b)(i) and (ii) have been correctly applied by the Cabinet Office but that the public interest in the withheld information, with the exception of all names other than the three individuals listed in the Confidential Annex, favours disclosure.

107.

As the Cabinet Office have not applied Section 40(2) to the three individuals listed in the Confidential Annex, and the Commissioner is satisfied that all other names are exempt under Section 36, the Commissioner has no need to consider the application of Section 40(2).”

By way of coda the ICO concluded

“Section 21 – Information accessible by other means

108.

Section 21 FOIA states that information which is reasonably accessible to the applicant otherwise than under section 1 is exempt information. Section 21 is an absolute exemption and therefore not subject to a public interest test.

109.

The Cabinet Office have relied on section 21 in respect of one part of the withheld information, specifically the letter from ACOBA to Ms Patel of July 2019. As noted in footnote 5 on page 6 of this notice, this letter is available online, having been published by ACOBA. The Commissioner is therefore satisfied that this specific information is reasonably accessible to the complainant and therefore exempt from disclosure under section 21 of the Act.

Other matters

110.

The Commissioner has already addressed the Cabinet Office’s dilatory response to the complainant’s request in FS50906944, having found that the Cabinet Office breached section 17(3) of the Act. In submissions to the Commissioner, the Cabinet Office accepted that their handling of the request had not been in line with their normal practices, and apologised to the complainant and the Commissioner for the manner in which it had been handled. The Cabinet Office explained that the request coincided with a period of acute pressure for officials following a transition in Prime Minister, and was delayed further as a result of the 12 December 2019 General Election and subsequent Covid19 pandemic. The Cabinet Office assured the Commissioner that they were taking steps to improve their FOI processes.

111.

Although not subject to statutory time limits under the FOIA, the Commissioner’s guidance as regards internal reviews is clear and well established in that he expects public authorities to provide most internal reviews within 20 working days. In exceptional cases, such as where the public interest issues are particularly complex or the public authority needs to consult with external or third parties, a maximum of 40 working days is permissible.

112.

In this case the complainant requested an internal review on 16 April 2020 but was not provided with the review by the Cabinet Office until 16 September 2020. The Commissioner is mindful both of the public interest complexity of this case and the fact that the complainant’s request for an internal review coincided with the ongoing pandemic, which will have placed considerable resource and staffing pressures upon the Cabinet Office, as it did upon all public authorities. Nevertheless, even taking these factors into account, a period of five months to provide an internal review was clearly excessive and unsatisfactory. However, the Commissioner would commend the Cabinet Office for having taken the time and effort to provide a second internal review of their decision.”

The decision of the ICO was therefore that

“2.

The Commissioner’s decision is that the Cabinet Office correctly applied section 36 to the withheld information but that the public interest balance favours disclosure of the information. The Commissioner also finds that the Cabinet Office correctly applied section 21 to some of the information held.

3.

The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation.

• Disclose the withheld information to the complainant, with all names redacted except the three individuals specified in the Confidential Annex.

4.

The public authority must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court.”