Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 114 (AAC)

Fecha: 04-Dic-2025

The Legislation

The Legislation

S.36 of FOIA provides, so far as material, that

“Prejudice to effective conduct of public affairs.
(1)
This section applies to—
(a)
information which is held by a government department ... and is not exempt information by virtue of section 35, and
(b)
information which is held by any other public authority.
(2)
Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act—
(a)
...
(b)
would, or would be likely to, inhibit—
(i)
the free and frank provision of advice, or
(ii)
the free and frank exchange of views for the purposes of deliberation, or
(c)
would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs”.

Heading
Section 1
Background
The Legislation
The ICO’s Reasons
Relevant Codes of Conduct
Business Appointments Rules for Former Ministers
The Decision of the Tribunal
The Appeal to the Upper Tribunal
the Tribunal erred by failing to give adequate reasons for its conclusion that the public interest favoured disclosure the Tribunal erred in its application of the public interest test by having regard to irrelevant considerations
The Cabinet Office’s Submissions
the decision failed to engage with key points relied on by the Cabinet Office
it failed to give appropriate weight to the qualified persons’ opinions
it failed to address the implications of its finding that s.36(2) (c) was engaged, bringing into scope broader evidence Failure to engage with key points
point 1 related to the “appropriate weight” to be given to the views of the qualified person
point 4 related to the notion that the circumstances were exceptional
principle – as to the proper role of FOIA where due process had been followed and the prospect of a “court of public opinion” compounding the chilling effect, citing Information Commissioner (“IC”) v
Weight to be afforded to witness with institutional expertise
as distinct from the qualified person point above, this was not a question of
Weight to be afforded to the qualified person’s opinion
“Exceptional circumstances”
No regard to broader evidence despite s.36(2) (c) finding
the Tribunal recounted that first ground and indeed quoted it verbatim (at [25])
the Tribunal went on to find that “there could well be a need for a careful collection of information and the chilling effect of disclosure in this case … would foreseeably have some negative impact o
the Tribunal was therefore satisfied that disclosure would indeed, as the qualified person had opined, “be likely to inhibit the provision of advice, the exchange of views and the ability to gather ev
Resignation of Sir Philip Rutnam
Breach of the BARs by Mr Johnson
doing the same
Public perception
Other matters identified by the ICO
Ground 3: Abdication
the Tribunal did not appear to have placed any weight on the fact that a formal decision as to whether a minister had complied with the Code was ultimately a matter for the Prime Minister alone. The I
the point was, in addition, relevant to one limited piece of the withheld information
Conclusion
Ground 1 (inadequate reasoning): although the ICO did not agree with all of the Cabinet Office’s arguments advanced under Ground 1, he too took the view that the Tribunal’s reasoning was inadequate in
Ground 2 (irrelevant considerations): the ICO agreed that the Tribunal erred in various respects when considering other alleged breaches of the Code and BARs by Ms Patel and Mr Johnson. The Tribunal t
Ground 3 (failure properly to evaluate the public interest balance): the argument advanced under Ground 3 was unclear. Insofar as it simply reframed Ground 1, then the ICO repeated his response to tha
Legal Framework
The public interest test: general considerations
The public interest test: s.36 specific considerations Weight afforded to the qualified person’s opinion
“Chilling effect” arguments
Response to the Grounds of Appeal
Ground 2: regard to irrelevant considerations as part of the public interest balance
second, such an approach was inconsistent with the Divisional Court’s analysis in FDA , where at [41] it rejected the Cabinet Office’s submission “that the sole purpose of the Ministerial Code is to d
Ground 3: failure to evaluate the public interest in disclosure in light of all relevant material and evidence
The public interest balance
The ICO’s limited reliance on the Tribunal judgment under appeal
The public interest in disclosure
the clear and unambiguous commentary in ACOBA’s Annual Report that retrospective applications were not permitted
the Prime Minister did not make any public statement about whether Ms Patel complied with the Code, let alone initiate any investigation. As Mr Madden explained in oral evidence “the Prime Minister in
the effectiveness of ACOBA in upholding the BARs
The public interest in non-disclosure
Further arguments relied on by the Cabinet Office
it was trite that decision notices were fact-specific and non-binding on the Tribunal: cf. O’Hanlon v IC [2019] UKUT 34 (AAC) 4 at [17] (on the relevance of previous Tribunal decisions)
Whether s.36(2) (c) was engaged
paragraph 30 considered the risks of “[a]ny diminution in the candour or quality of advice and views” where paragraph 31 considered (with emphasis added) the “ broader importance to the public of the Cabinet Office maintaining a well functioning syst
allow the appeal, but only on the more limited basis set out above remake the Tribunal’s decision; and
Discussion
S.36(2) (c)
Ground 3
Remaking the Decision
The Public Interest Balance
the withheld information concerned serious and viable questions about Mrs Patel’s compliance with the Code and the BARs
Serious and viable questions about compliance
Transparency and accountability deficit
Doubts about compliance in the light of the alleged breach in 2017
Contribution to public debate about enforcement
Exceptionality
Factors against disclosure
Conclusion
Disclosure of the Names
Conclusions