Katherine Rushton v The Information Commissioner & Anor [2024] UKFTT 1121 (GRC)

[2024] UKFTT 001121 (GRC)

Case Reference: FT/EA/2024/0059

First-tier Tribunal

(General Regulatory Chamber)

Hearing Heard on: 13 November 2024

Date 20 December 2024

Information Rights

Heard by Cloud Video Platform

Before

DISTRICT JUDGE REBECCA WORTH

(authorised to sit as a Tribunal Judge in the GRC)

JUDGE TAFT

TRIBUNAL MEMBER DR PHEBE MANN

Between

KATHERINE RUSHTONAppellant

THE INFORMATION COMMISSIONERRespondent

DEPARTMENT FOR HEALTH AND SOCIAL CARERespondent

Beth Grossman, Counsel for Appellant

Did not appear for Respondent

for Second Respondent: Paul Skinner, Counsel

Decision: The appeal is Dismissed

Definitions:“DHSC”the Department for Health and Social Care

“DN”the Decision Notice which is the subject of this appeal, namely IC-265172-Y8X8 dated 23 January 2024

“FOIA”Freedom of Information Act 2000

“ICO”The Information Commissioner’s Office

“PA”The Public Authority (as defined by Schedule 1 of FOIA), namely the DHSC

“QP”……………………the qualified person as defined in Section 36(5) FOIA

“the Requester”the person who applied for information – referred to in FOIA, section 1 as the applicant, namely Katherine Rushton

“the Rules”The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI 2010/43), as amended https://www.gov.uk/government/publications/general-regulatory-chamber-tribunal-procedure-rules

Mode of hearing: The Tribunal was satisfied that it was fair and just to conduct the hearing using Cloud Video Platform (CVP), all parties were able to join remotely.

REASONS

The Law – general

[1]As far as is relevant, FOIA provides: General right of access to information held by public authorities 1(1) Any person making a request for information to a public authority is entitled—(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b) if that is the case, to have that information communicated to him. (2) Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14. (3) … (4) The information— (a) in respect of which the applicant is to be informed under subsection (1)(a), or (b) which is to be communicated under subsection (1)(b), is the information in question held at the time when the request is received, except that account may be taken of any amendment of deletion made between that time and the time when the information is to be communicated under subsection (1)(b), being an amendment or deletion that would have been made regardless of the receipt of the request. (5) A public authority is to be taken to have complied with subsection (1)(a) in relation to any information if it has communicated the information to the applicant in accordance with subsection (1)(b). (6) In this Act, the duty of a public authority to comply with subsections (1)(a) is referred to as “the duty to confirm or deny”.

[2]FOIA defines “Information” at section 84 which provides: Interpretation 84 “information” (subject to sections 51(8) and 75(2) means information recorded in any form;

[3]There is a process of challenge – the first challenge is for the Requester to apply to the ICO for a Decision Notice (FOIA, section 50). If either side (the Requester or the PA) wishes to challenge the ICO’s Decision Notice, they are entitled to appeal to this Tribunal (FOIA, section 57). This Tribunal’s powers are found in FOIA, section 58 which provides: Determination of appeals 58(1) If on an appeal under section 57 the Tribunal considers—(a) that the notice against which the appeal is brought is not in accordance with the law, or

(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal (2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

The law – specific to this appeal

[4]Section 36 of FOIA provides: Prejudice to the effective conduct of public affairs 36(1) … (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

[5]Section 36(2) is subject to a public interest test, which is found at section 2, namely: 2(2)(a) ….

(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

[6]The Tribunal was referred to a number of authorities, key aspects of which follow. Whilst the Tribunal is conscious that it is not bound by other decisions of the First Tier Tribunal and its predecessor Tribunals, where we refer to such decisions we are satisfied that it is appropriate to follow the same approach as those previous decisions.

[7]The Upper Tribunal set out a number of principles to be followed in Section 36 cases in IC v Malnick [2018] AACR 29: at paragraph 29: although the opinion of the QP is not conclusive as to prejudice (save, by virtue of section 36(7), in relation to the Houses of Parliament), it is to be afforded a measure of respect. at paragraph 31: a decision whether information is exempt under that section involves two stages: first, there is the threshold in section 36 of whether there is a reasonable opinion of the QP that any of the listed prejudice or inhibition (“prejudice”) would or would be likely to occur; second, which only arises if the threshold is passed, whether in all the circumstances of the case the public interest in maintaining the exemption outweighs the public interest in disclosing it. at paragraph 32: The threshold question is concerned only with whether the opinion of the QP as to prejudice is reasonable. The public interest is only relevant at the second stage, once the threshold has been crossed. at paragraph 33: Given the clear structural separation of the two stages, it would be an error for a tribunal to consider matters of public interest at the threshold stage.

[8]At paragraph 45, the Upper Tribunal adopted the following passages from Guardian Newspapers Ltd and Heather Brooke v Information Commissioner and British Broadcasting Corporation (EA/2006/0011 and EA/2006/0013):

“14. In light of this material we consider the following observations are justified concerning the nature of the tribunal’s appellate jurisdiction: (1) The tribunal’s task is not a judicial review of the Commissioner’s decision on the principles that would be followed by the Administrative Court in carrying out a judicial review of a decision by a public authority (contrast the jurisdiction relating to national security certificates under section 60(3), which is expressly on a judicial review basis). The statutory jurisdiction under section 58 is substantially wider. (2) The tribunal does not start with a blank sheet. The starting point is the Commissioner’s notice. But analogy with the Court of Appeal is not apt. The Court of Appeal only hears fresh evidence in special circumstances. By contrast, subject to limited exceptions, the tribunal is required to receive relevant evidence, documents and information from the parties to the appeal, and the material is not limited to that which was available to the Commissioner. (3) In considering whether the Commissioner’s notice is in accordance with the law, the tribunal must consider whether (in the present context) the provisions of FOIA have been correctly applied. The tribunal is not bound by the Commissioner’s views or findings but will arrive at its own view. In doing so it will give such weight to the Commissioner’s views and findings as it thinks fit in the particular circumstances. (4) In some cases the correct application of the provisions of the Act will depend upon the findings of fact. Where facts are in dispute, the tribunal may review any finding of fact by the Commissioner. The tribunal will reach its conclusions on the factual issues upon the whole of the material which is properly before it on the appeal. Having decided the factual issues, the tribunal must consider the correct application of the provisions of the Act to the facts as found. It is therefore possible that in some cases the tribunal will consider that the Commissioner’s notice is not in accordance with the law, not because of any error of legal reasoning in the notice, but because the tribunal, having received evidence at the appeal hearing, makes findings of fact which are different from those made by the Commissioner. (5) In some cases the dispute on appeal will be on the public interest test in s2(2)(b), namely, whether the public interest in maintaining a qualified exemption outweighs the public interest in disclosing the information. Adjudging the balance of public interest involves a question of mixed law and fact, not the exercise of discretion by the Commissioner. If, based either on the Commissioner’s original findings of fact or on findings made by the tribunal on fresh evidence, the tribunal comes to a different conclusion from the Commissioner concerning the balance of public interest, that will involve a finding that the Commissioner’s notice was not in accordance with the law and should be corrected. (6) The combination of the power to review findings of fact and the duty under the rules to receive evidence on the appeal does not predetermine the extent of the tribunal’s review of the facts. This will depend upon the circumstances of the case. If in a particular case no fresh evidence is adduced, or the tribunal considers that the fresh evidence is not of material significance, the tribunal will proceed on the basis of the facts found by the Commissioner. (7) While it is not necessary for the purposes of the present case to consider the situation where the notice involved an exercise of discretion by the Commissioner, we incline to the view that in such a case the tribunal must form its own view on how the discretion ought to have been exercised. Review of the merits of the Commissioner’s exercise of discretion is assisted by the presence of lay members on the tribunal. Again, the tribunal’s decision may be affected by findings of fact which differ from those made by the Commissioner.” (1) The tribunal’s task is not a judicial review of the Commissioner’s decision on the principles that would be followed by the Administrative Court in carrying out a judicial review of a decision by a public authority (contrast the jurisdiction relating to national security certificates under section 60(3), which is expressly on a judicial review basis). The statutory jurisdiction under section 58 is substantially wider. (2) The tribunal does not start with a blank sheet. The starting point is the Commissioner’s notice. But analogy with the Court of Appeal is not apt. The Court of Appeal only hears fresh evidence in special circumstances. By contrast, subject to limited exceptions, the tribunal is required to receive relevant evidence, documents and information from the parties to the appeal, and the material is not limited to that which was available to the Commissioner. (3) In considering whether the Commissioner’s notice is in accordance with the law, the tribunal must consider whether (in the present context) the provisions of FOIA have been correctly applied. The tribunal is not bound by the Commissioner’s views or findings but will arrive at its own view. In doing so it will give such weight to the Commissioner’s views and findings as it thinks fit in the particular circumstances. (4) In some cases the correct application of the provisions of the Act will depend upon the findings of fact. Where facts are in dispute, the tribunal may review any finding of fact by the Commissioner. The tribunal will reach its conclusions on the factual issues upon the whole of the material which is properly before it on the appeal. Having decided the factual issues, the tribunal must consider the correct application of the provisions of the Act to the facts as found. It is therefore possible that in some cases the tribunal will consider that the Commissioner’s notice is not in accordance with the law, not because of any error of legal reasoning in the notice, but because the tribunal, having received evidence at the appeal hearing, makes findings of fact which are different from those made by the Commissioner. (5) In some cases the dispute on appeal will be on the public interest test in s2(2)(b), namely, whether the public interest in maintaining a qualified exemption outweighs the public interest in disclosing the information. Adjudging the balance of public interest involves a question of mixed law and fact, not the exercise of discretion by the Commissioner. If, based either on the Commissioner’s original findings of fact or on findings made by the tribunal on fresh evidence, the tribunal comes to a different conclusion from the Commissioner concerning the balance of public interest, that will involve a finding that the Commissioner’s notice was not in accordance with the law and should be corrected. (6) The combination of the power to review findings of fact and the duty under the rules to receive evidence on the appeal does not predetermine the extent of the tribunal’s review of the facts. This will depend upon the circumstances of the case. If in a particular case no fresh evidence is adduced, or the tribunal considers that the fresh evidence is not of material significance, the tribunal will proceed on the basis of the facts found by the Commissioner. (7) While it is not necessary for the purposes of the present case to consider the situation where the notice involved an exercise of discretion by the Commissioner, we incline to the view that in such a case the tribunal must form its own view on how the discretion ought to have been exercised. Review of the merits of the Commissioner’s exercise of discretion is assisted by the presence of lay members on the tribunal. Again, the tribunal’s decision may be affected by findings of fact which differ from those made by the Commissioner.”

[9]The Upper Tribunal further endorsed paragraph 54 of Guardian Newspapers and Brooke: 54. The first condition for the application of the exemption is not the Commissioner’s or the Tribunal’s opinion on the likelihood of inhibition, but the qualified person’s “reasonable opinion”. If the opinion is reasonable, the Commissioner should not under section 36 substitute his own view for that of the qualified person. Nor should the Tribunal. and where at paragraph 60 Guardian Newspapers and Brooke held that the substance of the opinion must be objectively reasonable. and there may (depending on the particular facts) be room for conflicting opinions, both of which are reasonable.

[10]However, the Upper Tribunal went on to disagree with Guardian Newspapers and Brooke on the subject of whether a decision must be procedurally reasonable. At paragraph 52, the Upper Tribunal observed that Parliament cannot have intended that a procedural failing could of itself prevent the public authority from successfully protecting the public interests encompassed by section 36. and at paragraph 56 held “reasonable” in section 36(2) means substantively reasonable and not procedurally reasonable.

[11]A number of principles were set out by the Information Tribunal in Hogan and Oxford City Council v Information Commissioner EA/2005/0026 and 30:28. The application of the ‘prejudice’ test should be considered as involving a number of steps.

29. First, there is a need to identify the applicable interest(s) within the relevant exemption. …

30. Second, the nature of the ‘prejudice’ being claimed must be considered. An evidential burden rests with the decision maker to be able to show that some causal relationship exists between the potential disclosure and the prejudice and that the prejudice is, as Lord Falconer of Thoronton has stated, “real, actual or of substance (Hansard HL, Vol. 162, April 20, 2000, col. 827).”…

31. When considering the existence of ‘prejudice’, the public authority needs to consider the issue from the perspective that the disclosure is being effectively made to the general public as a whole, rather than simply the individual applicant. … 34. A third step for the decision-maker concerns the likelihood of occurrence of prejudice. A differently constituted division of this Tribunal in John Connor Press Associates Limited v Information Commissioner (EA/2005/0005) interpreted the phrase “likely to prejudice” as meaning that the chance of prejudice being suffered should be more than a hypothetical or remote possibility; there must have been a real and significant risk. … 35. On the basis of these decisions there are two possible limbs on which a prejudice-based exemption might be engaged. Firstly, the occurrence of prejudice to the specified interest is more probable than not, and secondly there is a real and significant risk of prejudice, even if it cannot be said that the occurrence of prejudice is more probable than not. We consider that the difference between these two limbs may be relevant in considering the balance between competing public interests (considered later in this decision). In general terms, the greater the likelihood of prejudice, the more likely that the balance of public interest will favour maintaining whatever qualified exemption is in question.

[12]These passages received the approval of the Court of Appeal in Dept for Work & Pensions v Information Comr

[2017] 1WLR 1

[at paragraph 27].

[13]In the same decision, the Court of Appeal further confirmed that: 55. It is clearly important that appropriate consideration should be given to the opinion of the qualified person at some point in the process of balancing competing public interests under section 36. No doubt the weight which is given to this consideration will reflect the tribunal’s own assessment of the matters to which the opinion relates.

[14]In APPGER v ICO

[2011] UKUT 153 (AAC)

, the Upper Tribunal held that (at paragraph 75): In our view correctly, it was accepted before us by the FCO and the IC that when assessing competing public interests under section 27 of FOIA the correct approach is to identify the actual harm or prejudice that the proposed disclosure would (or would be likely to or may) cause and the actual benefits its disclosure would (or would be likely to or may) confer or promote. and at paragraph 76 Such an approach requires an appropriately detailed identification, proof, explanation and examination of both(a) the harm or prejudice and

(b) benefits that the proposed disclosure of the material in respect of which the section 27 exemption is claimed would (or would be likely to or may) cause or promote.

[15]The Tribunal is satisfied that this approach is also appropriate when considering a Section 36 exemption.

[16]On the public interest balancing test, the Upper Tribunal in O’Hanlon v Information Commissioner

[2019] UKUT 34 (AAC)

[15] identifies the task for the Tribunal: The first step is to identify the values, policies and so on that give the public interests their significance. The second step is to decide which public interest is the more significant. In some cases, it may involve a judgment between the competing interests. In other cases, the circumstances of the case may(a) reduce or eliminate the value or policy in one of the interests or

(b) enhance that value or policy in the other. The third step is for the tribunal to set out its analysis and explain why it struck the balance as it did.

[17]Hogan also considers the public interest test [at paragraph 55]: The application of the public interest test involves a question of mixed law and fact, not the exercise of any discretion by the IC. and at paragraph 56 FOIA does not include any general provision that there is a presumption in favour of the disclosure of information held by public authorities. However in one important respect FOIA does contain a presumption in favour of disclosure. The duty to communicate under s.1(1)(a) is displaced by a qualified exemption under s.2(2)(b) only if the public interest in maintaining the exemption outweighs the public interest in disclosure of the information sought. So if the competing interests are equally balanced, then the public authority, in our view, must communicate the information sought. and at paragraph 57 The question to be asked is not; is the balance of public interest in favour of maintaining the exemption in relation to this type of information? The question to be asked is; is the balance of public interest in favour of maintaining the exemption in relation to this information, and in the circumstances of this case? and at paragraph 58 18. The passage of time will also have an important bearing on the balancing exercise. As a general rule, the public interest in preventing disclosure diminishes over time.

and at paragraph 58

[18]In England v Information Commissioner 2007 WL 9362177 [at paragraph 62], the Information Tribunal held that given that it is inevitable thatthere is no evidence of exactly what would happen on disclosure: it is necessary to extrapolate from the evidence available to come to the conclusion about what is likely.

[19]The Information Tribunal went on to hold (at paragraph 65):(a) The default setting in the Act is in favour of disclosure. Information held by public authorities must be disclosed on request, unless the Act permits it to be withheld.

(b) If the public interest in favour of maintaining the exemption is equally balanced against the public interest in disclosure, then the exemption will not exclude the duty to disclose.

(c) There is no express provision that requires a Public Authority to apply a presumption in favour of disclosure when considering exemptions to the general duty to disclose, which is in contrast to the Environmental Information Regulations 2004.

(d) There is an assumption built into FOIA that disclosure of information by public authorities on request is in the public interest in order to promote transparency and accountability in relation to the activities of public authorities. The strength of that interest and the strength of competing interests must be assessed on a case-by-case basis and not least because section 2(2)(b) requires the balance to be considered “in all the circumstances of the case”.

(e) The passage of time since the creation of the information may have an important bearing on the balancing exercise. As a general rule, the public interest in maintaining an exemption diminishes over time.

(f) In considering public interest factors in favour of maintaining the exemption, they relate to the particular interest which the exemption is protecting. In this case the prevention of crime.

(g) The public interest factors in favour of disclosure are not so restricted and can take into account the general public interests in the promotion of transparency, accountability, public understanding and involvement in the democratic process. and at paragraph 86: The exercise of considering the competing public interests depends not upon the length of the list of the different sorts of public interests on one side or the other but upon how important each of the factors is.

[20]A number of these principles were endorsed by the Upper Tribunal in Department of Health v IC and Lewis

[2015] UKUT 0159 (AAC)

38. In my view, there is no presumption in favour of disclosure included in FOIA (contrast Regulation 12(2) of the Environmental Information Regulations). The point that FOIA gives a right to information subject to exemptions does not mean that once a qualified exemption is engaged there is a presumption or bias in favour of disclosure founded on the general underlying purposes of FOIA. Rather, the position is that if, after a contents based assessment of the competing public interests for and against disclosure has been carried out, the decision maker concludes that the competing interests are evenly balanced he or she will not have concluded that the public interest in maintaining the exemption (i.e. against disclosure) outweighs the public interest in disclosing the information (as s. 2(2)(b) requires).

[21]Applying the law, therefore, the following questions arise:a. Who was the “qualified person” (QP) for the DHSC?

b. Did they give an opinion?

c. Did that opinion apply the test in section 36(2)(b)(i), namely whether disclosure of the information would inhibit the free and frank provision of advice?

d. Did that opinion apply the test in section 36(2)(b)(ii), namely whether disclosure of the information would inhibit the free and frank exchange of views for the purposes of deliberation?

e. Did that opinion apply the test in section 36(2)(c), namely whether disclosure of the information would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs?

f. Was that opinion substantively reasonable: i. Was the opinion in accordance with reason? ii. Is it an opinion that a reasonable person could hold?

g. Where did the public interest lie at the time, which the parties agree is 11 January 2023 - the date on which the DHSC should have responded to the request?

[22]Ms Rushton’s position is that the Section 36 exemption did not apply. She asserts that qualified person did not give an opinion, but if we find that she did, the opinion that was given was “substantively unreasonable” and that, even if reasonable, the public interest in disclosure far outweighs the public interest in maintaining the exemption.

[23]The ICO’s position is that the QP did give an opinion, that was a reasonable opinion and that the balance of public interest fell in favour of withholding and not disclosing the information in response to the Request.

[24]The DHSC’s position is that the QP did give an opinion, that it was “clearly a reasonable one in the circumstances” In paragraph 16 of the DHSC’s Response [A65] and that the ICO properly balanced various matters of public interest before finding that the balance was in favour of withholding the information.

Background

[25]The following facts are agreed between the parties.

[26]Ms Rushton seeks to know information about the development of Government guidance: “Coronavirus (COVID-19): admission and care of people in care homes.” (hereafter “the Guidance”) which was issued in April 2020. She seeks written communications from March and April 2020 in which the contents of the Guidance, and any earlier drafts, are discussed.

[27]Her first request for the information was made on 20 July 2020, which was refused by the DHSC. She complained to the ICO.

[28]In the interim, the Guidance was withdrawn on 1 April 2022, shortly before the Administrative Court ruled it to be irrational in Gardner v Secretary of State for Health and Social Care

[2022] EWHC 967

[29]On 11 November 2022, the ICO upheld the DHSC’s refusal to accede to Ms Rushton’s first request. Ms Rushton did not appeal but instead made a new request on 9 December 2022 in similar, though not identical, terms. The full terms of the request are set out at paragraph 4 of the DN and not repeated here.

[30]The DHSC should have responded to Ms Rushton’s request by 11 January 2023 but they did not.

[31]The Minister for Social Care was the QP for this information.

[32]The DHSC record in their letter to the ICO (contained at D113-D116 of the Open Bundle) that Minister for Social Care (the QP) gave an opinion on 9 June 2023. This is not accepted by Ms Rushton.

[33]It is agreed that on 16 June 2023, the DHSC advised that some of the information was reasonably accessible An exemption available under section 21 FOIA to Ms Rushton (and, indeed, the public) as it was already in the public domain and withheld other information under FOIA exemptions found in sections 40(2) Personal information , 35(1)(d) Formulation of government policy (the operation of any Ministerial private office) and section 36(2)(b) Prejudice to effective conduct of public affairs (would, or would be likely to, inhibit, the free and frank provision of advice or the free and frank exchange of views for the purposes of deliberation) and 2(c) Prejudice to effective conduct of public affairs (would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs .

[34]Ms Rushton requested an internal review and, by decision dated 28 September 2023, the DHSC maintained its reliance on section 36. Ms Rushton then complained to the ICO on 19 October 2023.

[35]During the currency of the ICO’s investigation, the DHSC reconsidered the request. At E145-E146 of the Open Bundle, we see that the Minister for Social Care received a submission that recommended 13 documents in fact be released. That submission can be seen at E134 – E144. On 11 December 2023, an email from her Private Secretary records that she is “content as recommended”. The Tribunal finds as a fact that this was the QP adopting the submission in its entirety and that this was her opinion.

[36]On 14 December 2023, the DHSC disclosed 13 redacted documents to Ms Rushton, but continued to withhold 35 documents in their entirety. Ms Rushton accepted the redactions so the ICO’s decision, and this appeal, relate solely to the 35 withheld documents.

[37]The ICO issued the DN on 23 January 2024. The DN found some procedural errors by the DHSC but found that the information had been properly withheld under section 36(2)(b)(i), section 36(2)(b)(ii), and section 36(2)(c). No corrective steps were required by DHSC.

Grounds of Appeal

[38]Ms Rushton’s grounds of appeal (dated 16 February 2024) set out her position that “none of the provisions of s36(2) FOIA entitles to DHSC to withhold [the 35 documents]”. Her grounds are: Ground 1: Section 36 was not engaged at all. In support of this ground, Ms Rushton argued: The QP could not reasonably be of the opinion that disclosure would lead to a “chilling effect” in the provision of advice and exchange of views. The DN lacked any (or any sufficient) evidential foundation for the opinion. The QP did not take account of the timing of the request – that the emergency pandemic measures had come to an end and the Guidance had been withdrawn. The QP’s opinion was broad and not specific. The QP’s change of view in respect of the 13 documents disclosed in December 2023 indicates that their opinion had not been reasonable. Ground 2: Even if section 36 is engaged, the public interest in disclosure of the information outweighs the public interest in maintaining the exemption. Ms Rushton argued: The DN did not put sufficient weight on there being a general public interest in transparency. The DN failed to take account of the fact that the Guidance was found, by the High Court, to be irrational; the ICO’s comments in the previous decision notice about largely the same material and concerns raised by the ICO about the impact of the use of messaging apps in Government on transparency and accountability. The DN failed to properly assess the weight of the competing public interests – for and against disclosure. Specifically, the DN placed too much weight on the “chilling effect” and the role of the COVID-19 Public Inquiry and insufficient weight on the withdrawal of the Guidance. The DN failed to take appropriate account of the likelihood and severity of prejudice and the “different landscape” in respect of COVID-19 in January 2023.

Response – Information Commissioner

[39]The ICO Response to the appeal is dated 19 March 2024. Some parts of the response have been withheld as the Tribunal made a rule 14 direction.

[40]The Response submits that ICO was right to find that the QP’s opinion was reasonable, as it was one which a person could reasonably hold. In doing so, the Response asserts that Ms Rushton’s grounds are misguided because they invite the Tribunal to approach our decision as if we were carrying out a judicial review and because they blur the two separate stages of the decision making process, i.e. the threshold question and the public interest test.

[41]The Response submits that the ICO carefully and properly weighed the balance of the public interest in disclosure and in maintaining the exemption and in doing so did take account of the matters to which Ms Rushton argued he had not, and further that the ICO gave appropriate weight to the QP’s opinion.

Response – Public Authority

[42]The DHSC provided its Response to the appeal on 4 April 2024. It too sought a Rule 14 direction and relied on closed material.

[43]In respect of the threshold question, the DHSC submits that:(i) All that is needed to be shown is that there is a real and significant risk of prejudice, even if it cannot be shown that it is more probable than not;

(ii) The QP was reasonably entitled to consider that disclosure of the withheld information would be likely to lead to a chilling effect, particularly in light of the fact that issues remain live;

(iii) Consideration of the withheld information renders Ms Rushton’s submissions about the evidential foundation for the opinion untenable;

(iv) Live issues remained notwithstanding that emergency pandemic issues had come to an end;

(v) It is for the QP to take into account such matters as they consider relevant, but nevertheless they had taken into account each of the matters Ms Rushton relies on; and

(vi) The QP ultimately decided to release 13 documents.

[44]In respect of the public interest test, the DHSC submits that:(i) The ICO specifically commented that transparency “carries weight” and so must have taken this into account;

(ii) The ICO took each of the factors Ms Rushton relies upon and gave them appropriate weight. It is not appropriate to assume that a factor has not been taken into account simply because it has not been mentioned;

(iii) The ICO was entitled and correct to take into account and place weight on the chilling effect of disclosure, the fact that the Guidance had been withdrawn and the role of the Covid-19 inquiry; and

(iv) The ICO took appropriate account of the likelihood and severity of prejudice and the “different landscape” in January 2023.

Appellant’s replies

[45]In her replies, Ms Rushton develops her original objections, arguing that(i) The QP’s opinion must be objectively reasonable;

(ii) There must be a causal link between the prejudice and this particular disclosure and there was not: no prejudice was or was likely to be caused specifically by disclosure of the withheld information;

(iii) There should not be excessive deference to the QP by simply accepting assertions of a generalised chilling effect;

(iv) There was not sufficient evidential foundation for the QP’s opinion;

(v) Any live issues were marginal;

(vi) Matters taken into account and not taken into account go to the question of objective reasonableness;

(vii) The QP’s opinion applied both to the 13 disclosed documents and the 35 withheld documents;

(viii) The disclosed documents identified that the QP had “extensive involvement” in the creation of the Guidance so the ICO should have and this Tribunal should apply considerably greater scrutiny;

(ix) The Tribunal must consider the actual prejudice or likelihood of prejudice when assessing the public interest;

(x) The Tribunal should maintain the exemption only if the public interest in doing so outweighs the public interest in disclosure.

[46]Ms Rushton also complained about reference to closed material. By the time of the hearing, those points had been dealt with by way of case management orders.

Evidence and Submissions

[47]The Tribunal considered:a. An Open Bundle comprising of 484 pages, including a Witness Statement from Ms Rushton.

b. A Closed Bundle which contained: i. The withheld information, which is listed at pages E142 to E144 of the Open Bundle. We agree with the ICO’s summary of the information (DN paragraph 13) that the withheld information is separate email exchanges and records of Team “Chats” and one other document, all of which was created within Ms Rushton’s requested timeframe – 19 March to 02 April 2020. ii. The ICO’s Closed Response – which is the same as the open response, but without the black editing to the word/s at paragraphs 62 and 74. iii. Unedited copy of the submission to the QP – which is the document found at Open Bundle pages E134 to E144, the Closed Bundle version revealing the word/s blacked out. iv. Unedited copy of the letter dated 12 December 2023 found at Open Bundle pages D113 to D116, but revealing the word/s edited out. It is unclear why the closed version includes the name and job title of the author when neither is in the open version; however that information has not influenced our decision.

c. Skeleton arguments from Ms Grossman (acting on behalf of Ms Rushton) and Mr Skinner (acting on behalf of the DHSC).

d. Further submissions and further material relied upon by Ms Rushton filed on 12 November 2024.

e. A bundle of authorities.

The hearing

[48]At the hearing, it was agreed that neither Mr Skinner nor the Tribunal had any questions for Ms Rushton. Her Witness Statement was therefore taken as read.

[49]The Tribunal heard oral submissions from Ms Grossman and Mr Skinner. Both developed their written submissions.

[50]Ms Grossman spent significant time dealing with submissions in respect of the threshold question and less time dealing with the public interest test. The Tribunal considered that many of her submissions were in fact more relevant to the public interest test and so has taken them into account in respect of both of the questions we have to answer. Discussion The threshold question

Discussion

[51]Ms Grossman referred us to the submission sent to the QP, which was adopted as her opinion. Ms Grossman reminded the Tribunal that we can go behind the QP’s opinion and substitute our own reasoned opinion if we believe that the QP’s opinion was not reasonable. In response, Mr Skinner reminded the Tribunal that Parliament has decided, in creating the Section 36 exemption, that a senior experienced person should make the primary decision – the QP. He submits that the Tribunal is required to give weight to the QP’s opinion and should not simply substitute its own view.

[52]It seems to us that both these parties agree that we can substitute the QP’s opinion. We agree. Mr Skinner’s submission takes this a step further in saying that we must put weight on the QP’s opinion as Parliament decided that they were the primary decision maker. We agree See R (Hope and Glory Public House Limited) v City of Westminster Magistrates' Court

[2011] EWCA Civ 31

. http://www.bailii.org/ew/cases/EWCA/Civ/2011/31.html. Approved by the Supreme Court in Hesham Ali (Iraq) v Secretary of State for the Home Department

[2016] UKSC 60

at paragraph 45 – see https://www.supremecourt.uk/cases/docs/uksc-2015-0126-judgment.pdf .

[53]There was some discussion as to the nature of the reasonableness test. The Tribunal does not accept Ms Grossman’s submission that reasonableness is a binary test - that there was only one reasonable answer to the threshold question. That is clearly not correct. As identified in Guardian Newspapers and Brooke and confirmed by Malnick, it is possible that opinions that the threshold was met and that it was not would both be reasonable.

[54]There was further discussion about to what extent Ms Rushton’s position that the QP failed to take certain factors into account was attempting to impose a test of procedural reasonableness. Ms Grossman accepted that there is no such test but instead confirmed that her submission is that the failure to take these matters into account underscores a lack of evidence to support the opinion. The Tribunal reminds itself that the test is one of substantive reasonableness and that it is important not to inadvertently impose a test of procedural reasonableness.

[55]Ms Grossman submitted that the QP’s opinion that the threshold question was met was a bare assertion rather than reasoned opinion and that the consideration of the public interest test operated on the basis that the threshold was met. In doing so, she commented that the submission adopted as the QP’s opinion had an Annex headed “Public Interest” that assumed that the threshold question had been met. Mr Skinner disagreed, referring the Tribunal to the full text of the submission, which he said did discuss the threshold question. The Tribunal is satisfied that it is appropriate to refer to the whole text of the adopted document to determine the threshold question of whether an opinion was given and was reasonable.

[56]Ms Grossman submitted that there must be careful fact finding to support a chilling effect that is specific to the withheld information. She referred the Tribunal to Department of Health v IC and Lewis

[2015] UKUT 0159 (AAC)

, in particular at paragraphs 27 - 29 where it is said that:27. … if he is properly informed, a person taking part in the discussions will appreciate that the greater the public interest in the disclosure of confidential, candid and frank exchanges, the more likely it is that they will be disclosed. In general terms, this weakness in the candour argument was one that the courts found persuasive and it led many judges to the view that claims to PII based on it (i.e. in short that civil servants would be discouraged from expressing views fully, frankly and forcefully in discussions relating to the development of policy) were unconvincing.

28. The same weakness exists in respect of a qualified FOIA exemption because any properly informed person will know that information held by a public authority is at risk of disclosure in the public interest.

29. Properly drafted certificates and evidence claiming PII addressed this weakness. In my view, evidence or reasoning in support of the safe space or chilling effect argument in respect of a FOIA request that does not address in a properly reasoned, balanced and objective way: i) this weakness, ii) the public interest in there being disclosure of information at an appropriate time that shows that the robust exchanges relied on as being important to good decision making have taken place, and iii) why persons whose views and participation in the relevant discussions would be discouraged from expressing them in promoting good decision making and administration and thereby ensuring that this is demonstrated both internally and when appropriate externally, is flawed.

[57]Ms Grossman also referred to the Upper Tribunal’s decision in Davies v Information Comr [2019] 1WLR where at paragraph 25 the Upper Tribunal observed that: There is a substantial body of case law which establishes that assertions of a “chilling effect” on provision of advice, exchange of views or effective conduct of public affairs are to be treated with some caution. In paragraph 30 the Upper Tribunal went on to confirm that the approach in Lewis quoted above: applies equally to an assessment of the reasonableness of the qualified person’s opinion as long as it is recognised that(a) the qualified person is particularly well placed to make the assessment in question, and

(b) under section 36 the tribunal’s task is to decide whether that person’s opinion is substantively reasonable rather than to decide for itself whether the asserted prejudice is likely to occur.

[58]Ms Grossman submitted that the QP’s opinion was wrong to refer to concerns that disclosure would set a precedent and that each FOI request should be considered on its own merits.

[59]Mr Skinner in response to Ms Grossman’s submissions highlighted that officials would be aware of the Section 36 exemption and so understand that discussions would only be disclosed where it is in the public interest to do so. He suggested that if Ms Grossman’s submission were accepted, this would draw a line through the statutory exemption. In response, Ms Grossman suggested that to do otherwise would draw a line through the case law.

[60]The Tribunal does not agree with Ms Grossman’s interpretation. Lewis and Davies do not suggest that the “chilling effect” argument cannot succeed because officials should have an expectation of disclosure. As Mr Skinner submits, to do otherwise would render Section 36 otiose. Lewis and Davies remind us, however, that we should treat the “chilling effect” argument with some caution, whilst recognising that the QP has the benefit of experience the Tribunal does not.

[61]At paragraph 51 of Davies, the Upper Tribunal held that they had been provided with no evidence or other material to suggest that there was anything specific to the withheld information which would have been likely to inhibit the giving of advice or to cause ministers or civil servants to be reticent in their discussions, or that there would have been even minimal prejudice to the effective conduct of public affairs.

[62]They went on therefore to hold at paragraph 52 that it was not reasonable for the qualified person to conclude that there was a risk of prejudice within section 36(b) or (c) of FOIA if this material was disclosed.

[63]The Tribunal reminds itself therefore that we must critically examine whether the withheld information does contain anything that would have the effect described in Section 36(2)(b)(i), (2)(b)(ii) and 2(b)(c).

[64]Mr Skinner submitted that the nature of the assessment of prejudice is that it is inherently speculative and that therefore it is difficult if not impossible for there to be hard evidence about what will or will not happen. He posited that it is therefore right that it is for a QP with real experience to use their judgment in determining prejudice. He referred to the passage in England quoted above to suggest that the QP can reach their opinion based on inferences drawn from the documents. The Tribunal agrees: whilst there must be some evidence of prejudice, it need not be hard evidence, and we should take account of the fact that the QP is well placed to understand the likelihood of prejudice.

[65]Ms Grossman further submitted that the opinion was wrongly relying on the same factors as in Ms Rushton’s first request when the factual circumstances had changed significantly from 2020 to 2023. In particular, she referred to the withdrawal of the Guidance, the Gardner judgment and the publication of the former Health Secretary Matt Hancock’s Pandemic Diaries together with the publicity surrounding what they said about the Guidance. It was said that the criticisms in the Gardner judgment of the decision making that led to the Guidance and further publicity surrounding Mr Hancock’s diaries meant that there was no basis for finding that disclosure of this information would have a chilling effect.

[66]Ms Grossman conceded that the societal issues surrounding the Guidance would always be live but suggested that was not enough, referring back again to the issue of precedent being an impermissible one because each situation would be considered on its own merits. It was wrong, she says, to suggest that disclosure would have a chilling effect on officials discussing future guidance on the same subject matter.

[67]Mr Skinner disagreed. He submitted that the issue of discharge to care homes remained live in January 2023 and that this was enough to deal with the passage of time point – it did not matter that this particular Guidance had been withdrawn.

[68]The Tribunal considers that these are all factors that we must consider in determining where the passage of time and subsequent events weigh in the public interest test. We do not however consider that these factors are relevant to the initial threshold test.

[69]Finally, Ms Grossman submitted that it was not self-proving that disclosure would inhibit future discussions and that the knowledge that discussions may be published may in fact improve decision making. She conceded that there was no evidence to support the latter assertion. Again, the Tribunal considers that these are factors that might be relevant to the public interest test but, given that Parliament has identified the qualified person (Section 36) exemption, it must follow that it can be reasonable for a QP to consider that disclosure may inhibit future discussions.

The public interest test

[70]Ms Grossman reminded the Tribunal that we may come to different decisions about different documents within the withheld material. We agree.

[71]Ms Grossman asserted that if we held that the Section 36 threshold was passed, then the extent of the prejudice was low, which was outweighed by the public interest in disclosure. The Tribunal agrees that the extent of the prejudice is a relevant factor in the public interest test. Clearly, in the balancing exercise, the Tribunal must consider the weight on one side or the other of each particular factor, which must include the extent of the prejudice in disclosure.

[72]Mr Skinner submitted that the ability to have free and frank discussions was a public interest in itself. He referred to the purpose of the exemption: that government should not take place in a goldfish bowl; ministers and civil servants must be able to exchange views in private so that they can make informed decisions. He acknowledged that there may be cases where the public interest overrode that principle, but it was a factor in favour of withholding the information, and even more important where people, including the media, may disagree strongly with the decision that was made. He suggested that even the most robust civil servant would be concerned about how their views on this highly controversial issue would be perceived by the public. The Tribunal agrees with this analysis.

[73]Ms Grossman referred to transparency not only in its general sense but asserted that a factor in favour of disclosure was that it could ensure lessons may be learned and that similar mistakes might not be made in future. She referred to the dangers of groupthink, that the use of email and direct communication circumvented the usual rules of government, with consequent effects on transparency, and prevented the sort of free and frank discussion that might have prevented groupthink. The Tribunal was not referred to any evidence to support this submission.

[74]A further factor Ms Grossman relied upon in favour of disclosure was that a partial account of the discussions was already in the public domain by way of Mr Hancock’s diaries, an account that was disputed. She asserted that in January 2023, it continued to be a subject of debate as to who was responsible for the Guidance and that there was a public interest in understanding that in the round rather than merely partial information from particular sources.

[75]Ms Grossman then referred to the Covid-19 public inquiry, which the ICO had weighed into the balance in finding that the public interest test was not met. It is said that because the inquiry will look at the issue, the public interests referred to above in favour of disclosure might be met by the inquiry itself. Ms Grossman counselled against such an approach, asserting that there was no guarantee that the withheld material would be disclosed to the inquiry or even that the inquiry would turn its mind to the issue. She asserted that press coverage could and had influenced what the inquiry would look at. She further asserted that the issue was too important to be left to a single legal process.

[76]In response, Mr Skinner submitted that a number of past decisions had held that other public scrutiny is relevant because it can lessen the public interest in disclosure. He submitted that the request has to be seen in context of the other information in the public domain - in this case via the Gardner judicial review and the Covid-19 public inquiry - and whether the release of the information would add anything significant.

[77]The Tribunal examined the inquiry’s terms of reference H482 -H484 . We note in particular that it will: highlight where lessons identified from preparedness and the response to the pandemic may be applicable to other civil emergencies.

[78]We note that its first aim is to produce a factual account that will look at, amongst other things: how decisions were made, communicated, recorded, and implemented in the context of the public health response and: the management of the pandemic in care homes and other care settings, including infection prevention and control, the transfer of residents to or from homes, treatment and care of residents, restrictions on visiting, workforce testing and changes to inspections.

[79]The inquiry’s second aim is to: Identify the lessons to be learned from the above, to inform preparations for future pandemics across the UK.

[80]The Tribunal is satisfied therefore that the inquiry will look at the issue and can, if it considers it relevant, request disclosure of the withheld material. That is not the same, however, as an FOI request that would disclose the material to the whole world. Conclusion The QP’s opinion

Conclusion

[81]The Tribunal is satisfied that the QP was the Minister for Social Care, Helen Whately MP. The Tribunal is further satisfied that the QP gave an opinion. Having read the exchange of emails at E145-E146, the Tribunal is satisfied that the QP adopted the submission made to her at E134 to E144 in its entirety.

Did the QP’s opinion apply the test in Sections 36(2)(b)(i), (2)(b)(ii) and 2(b)(c)?

[82]Having regard to the totality of the submission at E134-E144, the Tribunal is satisfied that the QP did apply the test, and did not, as asserted by Ms Rushton, simply assume that the threshold test was met.

Was the QP’s opinion substantively reasonable?

[83]The Tribunal observes that there are three potential opinions the QP could hold: that the documents should be disclosed in full, that they should be withheld in full or that some of the documents should be disclosed. All of these opinions could be reasonable. Our role is to determine whether this opinion was areasonable one, not whether it was the only reasonable one.

[84]As recorded in the ICO’s Response At paragraph 74, A61 , the ICO’s conclusions on prejudice were informed by “the types of discussions which he could see had taken place between the DHSC and a range of partner bodies, and how those free and frank discussions had contributed to the formulation of the April Admissions Guidance”. The Tribunal reaches the same conclusion: we are satisfied, having regard to the totality of the evidence, that the withheld material would have the effect described in Section 36(2)(b)(i), (2)(b)(ii) and 2(b)(c) and that the QP’s opinion was therefore substantively reasonable.

[85]In doing so, the Tribunal has regard to the fact that the QP has the necessary experience to draw appropriate inferences from the documents. The Tribunal further accepts that the nature of the exercise involves a necessary element of speculation and that there is unlikely to be hard evidence of the effect or likely effect of disclosure. The Tribunal is satisfied that the QP’s opinion was not a bare assertion but was supported by inferences properly taken from the documents.

Where did the public interest lie on 11 January 2023?

[86]There were a number of competing public interests.

[87]Clearly, transparency is one. It is indeed the entire purpose of FOIA. However, Parliament decided that there should be a number of qualified exemptions to the general principle that information should be available to the public where transparency needs to be weighed against other public interests, including interests in information being withheld. Section 36 is such an exemption.

[88]The Tribunal agrees that the interests relied upon by Ms Rushton should be taken into account in the balancing test. We have done so.

[89]The Tribunal accepts in particular that disclosure of the information could enable the public to understand how the Guidance was developed, to consider specifically whether there was “groupthink” (as is one of Ms Rushton’s concerns) and whether the usual rules of government were circumvented. The Tribunal has also taken into account the fact that some individuals have placed their own account into the public domain, and agrees that there is a public interest in identifying whether this is only a partial account.

[90]However, the Tribunal must also examine whether those interests can be met by information otherwise in the public domain. It is correct to say that Gardner did not look at how the Guidance was developed. The Tribunal is satisfied however that it is proper to take into account the role of the Covid-19 public inquiry. It is correct to say that many of the interests relied upon by Ms Rushton pointing in favour of disclosure can be met by the inquiry. The Tribunal is satisfied that the inquiry and responsible reporting thereof can meet the public interest that would be otherwise met by disclosure of the information.

[91]The Tribunal agrees that there is a public interest in ministers, officials and other stakeholders being able to freely exchange their views and take advice without fear that those views and advice would be made public. It is of course the purpose of the Section 36 exemption.

[92]We find that this was particularly acute in this case, where views were being exchanged and advice given in a time of unprecedented national emergency. No one who lived through the events of March and April 2020 can be in any doubt that extraordinary decisions with profound and potentially grave implications needed to be made at pace and in unusual circumstances, due to lockdown and social distancing. The Tribunal is satisfied that there was and is substantial public interest in the individuals involved in contributing to those discussions being able to do so without being hindered by concerns that their views and advice would be later exposed.

[93]The Tribunal considers that it is unrealistic to suggest that, because no FOIA decision sets a precedent and each request is considered on its own merits, disclosure in this case wouldn’t prey on the minds of civil servants and other stakeholders making similar future decisions. The Tribunal is concerned that disclosure could impact the future willingness of stakeholders to contribute to discussions, and certainly impact on their willingness to be frank in their views and advice.

[94]The Tribunal further weighed in the balance the passage of time. It is correct to say that both the emergency pandemic measures and indeed the Guidance had been withdrawn by 11 January 2023. The Tribunal does not accept however, that this reduces the concerns about government in a goldfish bowl such that it is outweighed by the factors in favour of disclosure. As detailed in the Commissioner’s response At paragraph 73 A60 , the issue of Covid-19’s impact on discharging people from hospital to care homes remained a live policy issue at the relevant time. This is a factor that was properly taken into account.

[95]The Tribunal considered whether the public interest could be met by disclosure of the substance of the information without disclosing the documents in their entirety. The Tribunal was concerned however that, particularly given the partial accounts already in the public domain, this could lead to a “jigsaw” identification of the information that should be properly withheld.

[96]The Tribunal therefore holds that that Section 36 was engaged and that it was in the public interest to withhold the information. Signed Date: 11 December 2024 DJ Rebecca Worth; Tribunal Judge Taft