[2025] UKUT 114 (AAC)

The public interest in non-disclosure

The ICO had consistently accepted that disclosure would result in a loss of candour and/or give rise to a chilling effect (e.g. the decision notice at [99]). However, he did not agree that the risks were as significant as the Cabinet Office alleged, or that they outbalanced the weighty public interest in disclosure (see the decision notice at [99-100]).

Firstly, the decision notice did not order disclosure of the names of all of the officials mentioned in the withheld information. Instead, it concluded that the names of just three individuals in very senior, public-facing roles should be disclosed at [104] cf. Davies at [26] and Badger Trust at [75]. (The ICO submitted that Mr Madden’s evidence on the impact of anonymisation of the names of more junior officials was unconvincing and should be afforded minimal weight.)

Second, the CO’s candour arguments were overstated because the facts of this case were unusual. In particular, as set out above, the public interest in disclosure was heavily informed by (a) the clarity of the rules in issue; (b) the transparency and accountability deficit, in particular the lack of any investigation and/or censure by ACOBA or the Prime Minister regarding Ms Patel’s compliance with the rules and (c) the relevance of Ms Patel’s previous breach of the Code in 2017.

In that regard, the Cabinet Office had misunderstood the ICO’s position in the decision notice at [96] that the present case “is exceptional and in most cases senior officials could have reasonable confidence that their advice and exchanges would not be publicly disclosed”. The Cabinet Office argued that that argument was flawed because there was no guidance as to what would amount to “exceptional circumstances”. The ICO had never suggested that civil servants were able to appreciate at the time of advice and discussions whether the circumstances were exceptional and/or the public interest would favour disclosure if those communications were requested under FOIA. His position was instead that, if disclosure were ordered in this case, civil servants would know that the circumstances giving rise to disclosure were exceptional and/or unusual, and would therefore not be discouraged from expressing themselves frankly and freely in future.