George Greenwood v Information Commissioner & Anor [2025] UKFTT 1045 (GRC)

[2025] UKFTT 01045 (GRC)Case Reference: FT/EA/2024/0418
First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Venue Heard at Field House, LondonHearing Heard on: 23 &24 July 2025
Decision given on: 04 Sept 2025
Before
JUDGE HARRISJUDGE SAWARDMEMBER DE WAAL
Between
GEORGE gREENWOODAppellantINFORMATION COMMISSIONERRespondentCABINET OFFICERespondentMr Greenwood appeared in person for Appellant for First Respondent: The IC did not attend and was not represented for Second Respondent: Timothy Pitt-Payne KC and Richard HanstockDecision: The appeal is dismissed.Substituted Decision Notice:IC-290728-G9S9Public Authority: The Cabinet Office for reasons set out below:Date 2025-09-04
[1]The information identified was within the scope of the request.[2]The Cabinet Office was entitled to rely on each of section 40(2), sections 36(2)(b) and (c) and 41 of the Freedom of Information Act (“FOIA”) to withhold the requested information in its entirety.[3]As we have found that these exemptions apply to all of the withheld information, no further action is necessary. REASONS

Background to the appeal

[1]This appeal concerns two decisions of the Information Commissioner (the “IC”) dated 19 January 2024, reference IC-198560-H4S3 (the “First Decision”) and 7 October 2024, reference IC-290728-G9S9 (the “Second Decision”) (together “the Decisions”). The Decisions were in connection with a request for information made to the Cabinet Office (“CO”) by the Appellant, Mr George Greenwood, concerning due diligence conducted before the appointment of Chris Pincher MP as deputy chief whip in 2022.[2]The background to the appeal is set out as follows in the Second Decision and was agreed by the CO in its response to the appeal:
“7. After an alleged incident of sexual misconduct at the Carlton Club on the evening of 29 June 2022, Mr Pincher resigned as Deputy Chief Whip on 30 June 2022, and had the Conservative whip removed. 8. On 1 July 2022, No 10 Downing Street was asked whether the then Prime Minister was aware of any allegations as to misconduct before appointing Mr Pincher and briefed that he was not. In the same briefing, it went on to say that all ministerial appointments are looked at by the Cabinet Office Propriety and Ethics Team (“PET”), which concluded at the time Mr Pincher was appointed, that there was no basis to stop the appointment "on the basis of unsubstantiated allegations". 9. On 3 July 2022, six new allegations against Mr Pincher emerged, involving similar behaviour. 10. On 4 July 2022, No 10’s response on the matter was as follows: "Mr Johnson knew of ‘allegations that were either resolved or did not progress to a formal complaint', adding that 'it was deemed not appropriate to stop an appointment simply because of unsubstantiated allegations'." However, it emerged that Mr Johnson had been briefed about similar inappropriate behaviour by Mr Pincher in 2019. 11. On 5 July 2022, Lord McDonald - a former Permanent under-Secretary in the Foreign & Commonwealth Office (2015-2020) – wrote a letter to the Parliamentary Commissioner for Standards. This stated that Mr Johnson was briefed "in person" about a "formal complaint" which had been upheld into Mr Pincher's misconduct in the summer of 2019, when Mr Pincher was a Foreign Office Minister. In substance, the allegations were similar to those made about his behaviour at the Carlton Club. Lord McDonald’s letter said: “The original No 10 line is not true and the modification is still not accurate. Mr Johnson was briefed in person about the initiation and outcome of the investigation. There was a "formal complaint". Allegations were "resolved" only in the sense that the investigation was completed; Mr Pincher was not exonerated. To characterise the allegations as "unsubstantiated" is therefore wrong.” 12. On 5 July 2022, the then Minister for the Cabinet Office, Michael Ellis, made a statement on this topic in the House of Commons. He said: “With regard to the appointment to the Whips Office in February that the right hon. Lady mentioned, appointments in Government are subject, of course, to advice on matters of propriety — they are not subject to veto, but they are subject to advice. In addition, the usual reshuffle procedures were followed by the Government.”
He also stated the following:
“It is the morally fair thing to do, in any case, to assess the situation based on evidence and not unsubstantiated rumour. It is incumbent on all of us in this House, as it is in society generally, to act fairly. If there is no evidence at the time—if there is no live complaint, no ongoing investigation—surely it is not unreasonable to consider making an appointment.”
And he further said: And he further said:
“The Prime Minister was made aware of the issue in late 2019; he was told that the permanent secretary had taken the necessary action, so no issue arose about the Minister remaining a Minister. Last week, when fresh allegations arose, the Prime Minister did not immediately recall the conversation in late 2019 about this incident. As soon as he was reminded, the No. 10 press office corrected its public lines. The position is quite clear. Further inquiries will be made, but the position is that the Prime Minister acted with probity at all times. It is not appropriate, whether in private life or in public life, to act on unsubstantiated rumour.”
[13]Mr Johnson announced on 7 July 2022 that he would resign as Prime Minister. 14. The Commons Select Committee on Standards announced an investigation into Mr Pincher on 24 October 2022.[15]In a report published on 6 July 2023, the Committee found that Mr Pincher’s conduct caused significant damage to the reputation of the Government and to the Prime Minister who appointed him. They also found that Mr Pincher’s conduct was “an egregious case of sexual misconduct” in the presence of witnesses and “an abuse of power” as Mr Pincher held a position of “significant power and authority”. The Committee recommended Mr Pincher be suspended from Parliament for eight weeks.[16]Mr Pincher appealed against the decision recommending suspension. However, on 4 September 2023 it was announced that an Independent Expert Panel (IEP) had not upheld the appeal.[17]On 7 September 2023, Mr Pincher announced his resignation as an MP”

Mr Greenwood wrote to the CO on 5 July 2022 to request the following information:

“Please provide a copy of any due diligence reports conducted by the Cabinet Office Propriety and Ethics Team into the appointment of Chris Pincher MP as deputy chief whip in 2022.”
[3]The CO responded on 4 August 2022 and stated that it was refusing to confirm or deny whether the information was held, citing the exemption for personal information under section 40(5) of FOIA.[4]Following an internal review, the CO wrote to Mr Greenwood on 24 November 2022 and confirmed that it was maintaining the position set out in its initial response and also relying on the neither confirm nor deny provision of the exemption for prejudice to the effective conduct of public affairs (section 36(3) of FOIA).[5]Mr Greenwood contacted the IC on 21 October 2022 to complain about the way his request for information had been handled.[6]On 19 January 2024, the IC issued the First Decision. In this he decided that the exemption in section 40(5) does not apply and that, whilst the exemption in section 36(3) was engaged, the public interest in favour of confirming or denying whether the information was held is greater than the public interest in maintaining the exemption. As a result, the IC required the CO to confirm or deny whether the requested information was held and, if it was, either to disclose it or issue a fresh refusal notice.[7]On 23 February 2024, the CO issued a fresh refusal notice to Mr Greenwood stating that some information was held that fell within the scope of the request. However, it explained that the requested information was being withheld from disclosure because it is exempt under section 36(2)(b)(i) and (ii) and (c) and also section 40(2) of FOIA. The CO stated that the information related to a broader set of reshuffle procedures which, as set out by the government on 5 July 2022, were followed in this case.[8]On the same day, Mr Greenwood again contacted the IC to complain about the way his request for information had been handled. The IC accepted the complaint as being eligible for investigation notwithstanding the fact no internal review had been carried out.[9]On 7 October 2024, the IC issued the Second Decision, in which it determined that the CO was entitled to rely on section 36 to withhold the requested information. Some of the reasons for this determination were included in a confidential annex which appears in the CLOSED bundle. The Second Decision did not require the CO to take any steps. Abbreviations used in this decision “CO” means Cabinet Office, the Second Respondent “the Decisions” means both the First Decision and the Second Decision “First Decision” and “First Decision Notice” mean the IC’s decision dated 19 January 2024, reference IC-198560-H4S3 “FOIA” means the Freedom of Information Act 2000. All references to sections are references to sections of this Act unless otherwise specified “IC” means the Information Commissioner, the First Respondent “PET” means the CO’s Propriety and Ethics Team “PM” means Prime Minister “QP” means qualified person “Second Decision” and “Second Decision Notice” mean the IC’s Decision dated 7 October 2024, reference IC-290728-G9S9 “UT” means the Upper Tribunal, Administrative Appeals Chamber Procedural matters concerning the hearing[10]There was an OPEN session attended by all the parties present and a CLOSED session which was attended only by the CO and its representatives.[11]The Tribunal considered an OPEN bundle of documents (360 pages). The parties also submitted a joint authorities bundle (562 pages). In this decision we refer to page numbers of documents in these bundles with the prefixes OB and AB respectively.[12]Due to some corruption in one of the documents, the CO filed an additional copy of both the OPEN and CLOSED bundles shortly before the hearing.[13]The Tribunal also considered a CLOSED bundle of withheld documents (66 pages). Prior to the hearing an application under rule 14 of the Tribunal Rules had been made as regards the withheld and other CLOSED material and an order made that disclosure of the information contained in the closed bundle should not be disclosed or published to any person other than the IC and CO in this case pending further order.[14]As may be seen from the gist of the CLOSED session set out at below, during the CLOSED session the Tribunal was provided with some further closed material which was handed up at the outset of the session. The Tribunal made a further Rule 14(6) order in relation to this CLOSED material. However, the Tribunal was also mindful of the need to act in accordance with its Practice Note on Closed Material in Information Rights cases, which at paragraph 10 states “Once the judge makes a direction under Rule 14(6) the Tribunal must conduct the proceedings so as not to undermine its effect. All parties must co-operate in this. The judge will also be vigilant as to whether, as events unfold, the direction might require amendment”. Accordingly, the Tribunal identified some examples of CLOSED evidence in the CLOSED bundle and considered whether it ought properly to have been OPEN, seeking submissions from the CO on this. On balance, the Tribunal was satisfied that the Rule 14(6) order should remain in place and also apply to the new CLOSED material.[15]The following gist of the CLOSED session was approved by the Tribunal and provided to Mr Greenwood: “1. The CLOSED session began at 11.32am on 23 July 2025 and adjourned at 3.58pm. A draft version of this gist was provided to the Appellant overnight. The CLOSED session resumed at 10.00am on 24 July 2025, whereupon the Tribunal heard further submissions and approved this final version of the gist. 2. In accordance with the timetable proposed by the Cabinet Office in its skeleton argument, Mr Greenwood will be provided with the opportunity to consider the final version of the gist tomorrow morning, the OPEN session beginning not before 10.30am. Rule 14 orders 3. As trailed in the OPEN session, the Tribunal made rule 14 orders in relation to the CLOSED material, some of which was handed up at the outset of the hearing. 4. The recording of the CLOSED hearing will also be protected against disclosure under rule 14, such order extending also to the CLOSED portion of the hearing on 24 July 2025. Simon Madden 5. Mr Madden continued his evidence in CLOSED session. Questions put by counsel for the Cabinet Office and the Tribunal explored in detail the specific matters identified in OPEN evidence as suitable for further interrogation in CLOSED. 6. Mr Madden answered questions regarding the material in the CLOSED bundle, including(i) the redacted parts of the ministerial submissions dated 17 November 2022 and 21 February 2024, and the correspondence between the Cabinet Office and the Information Commissioner,(ii) the confidential annex to the Decision Notice, as well as(iii) the withheld material itself. Mr. Madden answered a number of questions about the withheld information itself, a copy of which was made available to the Tribunal at the start of the closed session. 7. In particular, Mr Madden answered questions regarding—a. the ministerial appointments process, the role of the Propriety and Ethics Team, stages of the appointments process in this particular case, and the detail of the withheld material;b. the types of prejudice that would flow from release of the withheld material under FOIA;c. the likelihood that these heads of prejudice would in fact flow from the release of the withheld material under FOIA;d. the inherent confidentiality of the ministerial appointments, including the extent of this confidence and the evidence of its existence;e. the public interests in preserving this confidentiality;f. the extent to which the public interest would be advanced by the release of the withheld material, including— i. the specific public interest in transparency regarding the process leading to the recommendation by the then Prime Minister to recommend the appointment of Mr Pincher as Deputy Chief Whip in 2022; and ii. the general public interest in understanding the process of ministerial appointments generally, and the role of the Cabinet Office Propriety & Ethics Team in that process specifically;g. the interaction between these interests and the release of the withheld material, noting the extent to which these interests were advanced by material already in the public domain at the date of the refusal; andh. the distinction between the pre-appointment process relating to the PM’s decision whether to recommend appointment, and the post-appointment process relating to Ministerial interests. 8. Furthermore, Mr Madden answered questions put by the Tribunal arising from matters identified by the Appellant in his written and oral submissions, including in particular in what way and to what extent release of the withheld information would or would be likely to lead to changes in process or behaviour including by reference to the experience of this witness in the ministerial appointments process generally. Mr Madden supplied the Tribunal with anonymised real-world examples from his experience to answer the Appellant’s questions. CLOSED closing submissions 9. CLOSED closing submissions were made for the Cabinet Office by reference to the actual content of the withheld information, focusing on the harms that the Cabinet Office alleged would flow from its disclosure, and why the public interest under section 36 was in favour of maintaining the exemptions under that section. The Cabinet Office addressed the potential effect of disclosure on: (a) prospective ministerial appointees; (b) civil servants; and (c) the Prime Minister. The Cabinet Office also addressed sections 40(2) (personal data) and section 41 (breach of confidence). 10. The Cabinet Office asked the Tribunal to identify any CLOSED evidence in the CLOSED bundle which ought properly to be in OPEN. The Tribunal identified some examples without making any order for disclosure and invited the CO to reflect further on these. The Cabinet Office made submissions as to why the Tribunal should not disclose any of the information in the CLOSED material. 11. The Cabinet Office maintains its reliance on the exemptions identified in these appeals. The Appeal[16]Mr Greenwood appealed the Second Decision to the Tribunal on 22 October 2024. He gave the following grounds for appeal:a. In relation to Section 36, Mr Greenwood does not challenge the fact that the exemption is engaged, but says: i. The IC erred in accepting the CO’s argument that there was a chance of serious prejudice to the ability of the PET to perform its function. ii. the IC erred in the conclusions on the balance of public interest and that the balance of public interest weighs in favour of disclosure.b. Section 40 does not apply because the legitimate interests of the data subject are “extremely weak”.[17]Section 41 cannot be relied upon to withhold the information because disclosure would not give rise to an actionable breach of confidence. There is a public interest defence to any confidence suit if the information suggests wrongdoing, such as failing to publicly declare relevant interests. There is no confidence in iniquity, and this would provide a sufficiently strong public interest defence in this case given the seriousness of the matters at hand and the clear public interest in understanding how the PET operates. IC’s response to the Appeal[18]The IC filed a Response dated 9 December 2024. He maintained his finding that section 36(2) applied to the entirety of the withheld information and that the public interest in maintaining each of the exemptions relied upon under that section outweighs the public interest in disclosure.[19]The IC did not make submissions on sections 40 and 41, as these did not form part of the IC’s Second Decision, and given his finding that section 36 applies to the entirety of the withheld information. CO’s response to the Appeal[20]The CO filed a Response dated 20 December 2024. It made the following points:a. There is no arguable challenge to the conclusion that the opinion of the QP that disclosure of the withheld information would inhibit the free and frank provision of advice and exchange of views for the purpose of deliberation and would otherwise prejudice the effective conduct of public affairs was reasonable.b. In relation to the public interest, the IC did not err in concluding that the public interest in maintaining each of the exemptions outweighs the public interest in disclosure of the information. It said “there is a very strong public interest in the effectiveness of the processes by which ministers are appointed and thus great weight should be afforded to the heads of prejudice which would affect that process. While there are public interests in release of the withheld information, in a general and specific sense, release of the withheld information would not appreciably advance these interests to the extent that they outweigh the significant prejudice that would arise in the reasonable opinion of the qualified person.”c. In relation to section 40(2) the CO considers that: i. The balance of legitimate interests in this case does not favour disclosure; and alternatively ii. Disclosure would not be fair or transparent in view of the confidential nature of the withheld information.d. In relation to section 41(1), there is no basis to conclude that the withheld information is probative of any iniquity such as a failure to declare private interests. Mr Greenwood’s Reply to the CO’s response[21]Mr Greenwood responded to the CO’s Response by email dated 7 January 2025.[22]In relation to section 36 he stated “it is perfectly reasonable not to dispute there could be some prejudice under the sections of 36, but to believe these are extremely minor and fully outweighed by the public interest in transparency.”[23]In relation to the QP’s opinion he said “I would invite the Tribunal to consider the reality of how qualified persons decisions are made, and that while they may be rational, that the public interest case should be determined on the facts available, rather than giving undue weight to the qualified person’s judgment”[24]He also made the following observations:a. “while it would be proper for a PM to make such an appointment without the PET, in practice this would be subject to significant scrutiny and criticism and the PET is an important check on his power. As such it is highly unlikely a prime minister would avoid working with the PET in his appointments and this harm is highly unlikely to occur upon disclosure.b. “while politicians do clearly have privacy rights, where this related to their public roles this is clearly outweighed in cases such as this where they have been in public office and accused of serious wrongdoing”. Legal framework Section 36[25]Sections 36(2)(b) and (c) FOIA provide a qualified exemption from the duty to disclose information which is held if in the reasonable opinion of the relevant qualified person disclosure of the information 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 purpose of deliberation or(iii) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs. This is a qualified exemption, so it is subject to the public interest test in s.2(2)(b) FOIA. As the IC’s guidance on these exemptions explains, they are concerned with “the processes that may be inhibited, rather than what is in the information. The issue is whether disclosure would inhibit the processes of providing advice or exchanging views. 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.”[26]As the exemptions in section 36(2)(b)(i), (ii) and (c) are prejudice-based, the reasonable opinion of the QP must consider the question of whether disclosure 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, or would otherwise prejudice or would be likely otherwise to prejudice the effective conduct of public affairs. In considering the factors that militate against disclosure, the primary focus should be on the particular interest which the exemptions are designed to protect.[27]The question of what amounts to a “reasonable opinion” was considered by the Tribunal at paragraphs 54 and 60 in Guardian Newspapers Limited and Heather Brooke v Information Commissioner and British Broadcasting Corporation (EA 2006/0011 and EA/2006/0013). These paragraphs were endorsed by the Upper Tribunal in Information Commissioner v Malnick and ACBA [2018] UKUT 72 (AAC) (GIA/447/2017), where it held that “reasonable” in section 36(2) “means substantively reasonable and not procedurally reasonable”.[28]So if the threshold test of the reasonableness of the QP’s opinion is met, only then will the Tribunal go on to decide whether the public interest weighs in favour of disclosure or maintaining the exemption. Mr Greenwood does not dispute the reasonableness of the QP’s opinion, so we can proceed to consider the public interest aspect.[29]The case of All Party Parliamentary Group on Extraordinary Rendition (APPGER) v IC & Foreign and Commonwealth Office [2013] UKUT 560 (AAC) gives guidance on how the balancing exercise required by s 2(2)(b) of FOIA should be carried out:
“… when assessing competing public interests under 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. This … requires an appropriately detailed identification of, proof, explanation and examination of both (a) the harm or prejudice, and (b) benefits that the proposed disclosure of the relevant material in respect of which the exemption is claimed would (or would be likely to or may) cause or promote.”
[30]The balancing of public interest is on the basis of how matters stood at the time of the public authority’s response to a request under FOIA (see Montague v the Information Commissioner and the Department for International Trade [2022] UKUT 104 (AAC)) Section 40[31]Sections 40(2) and (3A) FOIA when read together provide an absolute exemption from disclosure under FOIA in respect of information which constitutes personal data of a third party and whose disclosure to a member of the public other than under FOIA would contravene any of the data protection principles.[32]“Personal data” means any information relating to an identified or identifiable living individual (s3(2) Data Protection Act 2018 (“DPA”)). An identifiable living individual means a living individual who can be identified, directly or indirectly, in particular by reference to:a. an identifier such as a name, an identification number, location data or an online identifier (s3(3)(a) DPA); orb. one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual (s3(3)(b) DPA).[33]If the information does comprise personal data, the Tribunal must consider whether its disclosure other than under FOIA would contravene any of the data protection principles. The first data protection principle is the key relevant provision and is set out at Art. 5(1)(a) of the UK GDPR. It provides that personal data shall be “processed lawfully, fairly and in a transparent manner in relation to the data subject”.[34]The factors which may be relevant to fairness include the possible consequences of disclosure on the individual, the reasonable expectations of the individual both at the time the information was collected and the time of the request, the nature of the information, the circumstances in which it was collected and whether it is in the public domain. Any interests in the public having access to the information and the balance between these and the rights and freedoms of the individual data subjects may also be relevant; see DH v IC [2016] UKUT 0139 (AAC).[35]Article 6 (1) of UK GDPR provides that processing shall be lawful only if and to the extent that at least one of six identified conditions is met. The most relevant one for this appeal is condition (f): “processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data”.[36]As the CO explained in its skeleton argument, there is a balancing test which needs to be undertaken where the legitimate interests pursued by a third party (in this case Mr Greenwood) are balanced against the interests (or fundamental rights and freedoms) of the data subject. This must be determined as at the date of the refusal of the information request in question, which here is 4 August 2022. Mr Pitt-Payne also reminded the Tribunal in his oral submissions that disclosure under FOIA is disclosure to the world in general, not just to the requester.[37]The case of Goldsmith International Business School v the Information Commissioner & Home Office [2014] UKUT 0563(AAC) at paragraphs 34-42 set out and endorsed the approach to be taken when considering what is now Article 6(1)(f) UK GDPR taking into account a number of previous authorities. This approach was approved by the Court of Appeal in Cooper v National Crime Agency [2019] EWCA Civ 16 at paragraph 90 per Sales LJ.[38]The summary of the law, helpfully summarised in a streamlined form in the CO’s skeleton argument, took the form of a number of propositions, which were as follows:
“35. Proposition 1: Condition 6(1) of Schedule 2 to the DPA requires three questions to be asked: “(i) Is the data controller or the third party or parties to whom the data are disclosed pursuing a legitimate interest or interests? (ii) Is the processing involved necessary for the purposes of those interests? (iii) Is the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject?” 36. Proposition 2: The test of “necessity” under stage (ii) must be met before the balancing test under stage (iii) is applied. 37. Proposition 3: “Necessity” carries its ordinary English meaning, being more than desirable but less than indispensable or absolute necessity. 38. Proposition 4: Accordingly the test is one of “reasonable necessity”, reflecting the European jurisprudence on proportionality, although this may not add much to the ordinary English meaning of the term. 39. Proposition 5: The test of reasonable necessity itself involves the consideration of alternative measures, and so “a measure would not be necessary if the legitimate aim could be achieved by something less”; accordingly, the measure must be the “least restrictive” means of achieving the legitimate aim in question. 40. Proposition 6: Where no Article 8 privacy rights are in issue, the question posed under Proposition 1 can be resolved at the necessity stage, i.e. at stage (ii) of the three- part test. 41. Proposition 7: Where Article 8 privacy rights are in issue, the question posed under Proposition 1 can only be resolved after considering the excessive interference question posted by stage (iii).”
Section 41

Section 41

[39]Section 41(1) provides:
“Information is exempt information if (a) it was obtained by the public authority from any other person (including another public authority), and (b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.”
. The Role of the Tribunal

The Role of the Tribunal

[40]The Tribunal’s remit is governed by section 58 FOIA. This requires the Tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the IC’s decision involved exercising discretion, he should have exercised it differently. If we are satisfied that the IC’s decision notice is in error of law or involves an inappropriate exercise of discretion then we will allow the appeal and may substitute a decision notice for that of the IC. The Tribunal may receive evidence that was not before the IC and may make different findings of fact from the IC. The evidence[41]We heard OPEN and CLOSED evidence from Mr Simon Madden, Director of Propriety and Ethics at the CO.[42]In his oral evidence, Mr Madden said that if a PET official was aware that the withheld information would be disclosed, that might lead them to frame questions differently to prospective ministers or not to record in writing the information disclosed to them. This would inhibit the efficacy of the process and impact the PM’s ability to make an effective appointment decision.[43]He said that in any engagement with prospective ministers before appointment there is a clear expectation that what they tell officials will be held in confidence and only divulged to the PM. If ministers do not believe in the confidentiality of the process then they would think twice about their frankness in the process. If things come to light through subsequent disclosure there can be a serious consequence for the minister in question, including being asked to leave government.[44]He stated that it was up to an individual PM to determine what advice and support they need in the context of ministerial appointments; this is not something driven by the civil service. The PM can choose not to have any advice relating to a specific ministerial appointment and may receive advice from a range of sources including their party, the chief whip etc. The provision of such advice is not solely the preserve of the PET. If recorded information is subject to public disclosure, the consequence may be that the process will need to be altered and result in the PM receiving advice in a different way which would inhibit the PM’s discretion.[45]He said that it was important not to conflate the ministerial appointment process with the separate process of identifying or declaring ministerial interests.[46]He observed that the Ministerial Code is an important political document for the PM to frame expectations of ministers, but the majority of departures from government do not invoke the Code. Issues[47]In relation to section 36, it was common ground that the opinion of the QP was reasonable and that the exemption is engaged, so the sole issue for the Tribunal was whether the balance of public interest weighs in favour of maintaining the exemption or in favour of disclosure.[48]Further, or in the alternative, the Tribunal needed to decide whether the CO was entitled to rely on section 40 and/or section 41 FOIA.[49]Mr Greenwood’s appeal concerned the exemptions in section 36, 40 and 41. Although the IC did not deal with sections 40 and 41 in the Decisions, these sections were nevertheless relied upon by the CO to resist disclosure of the withheld information.[50]As the CO pointed out in its skeleton argument, the Tribunal is not constrained by the fact that the exemptions in sections 40 and 41 were not considered by the IC when it determined Mr Greenwood’s complaint. The role of the Tribunal was described in Birkett v Department for the Environment, Food and Rural Affairs [2012] AACR 32 (also at [2011] UKUT 39) as follows:
“57…The tribunal is required to undertake a fresh consideration of the case on the evidence and arguments put to it…It is the nature of such an appeal that there is generally no restriction on the issues, evidence or argument that the tribunal can consider… 58 … The tribunal is required to consider whether the Commissioner’s decision notice was in accordance with law. That directs attention to the contents of the notice and the scope of the Commissioner’s duty under section 50. And that directs attention to whether the public authority is required to disclose the information. There is nothing in the language of the section or inherent in the nature of the tribunal’s task to limit the scope of that consideration. In other words, the section imposes the “in accordance with the law” test on the tribunal to decide independently and afresh. It is inherent in that task that the tribunal must consider any relevant issue put [to] it by any of the parties. That includes a new exemption relied on by the public authority. 59… The test is undertaken afresh at the time of the hearing… 60 In summary the nature of the appeal before the First-Tier Tribunal requires it to consider the response that the public authority should have made afresh. It must apply the law afresh to the request taking account of the issues present at the hearing or identified by the First-tier Tribunal”
[51]This was confirmed by the Court of Appeal in Birkett v Department for the Environment, Food and Rural Affairs [2011] EWCA Civ 1606 and in ICO v Malnick [2018] AACR 29 at §102.[52]We also consider that the fact that the parties dealt with the exemptions in a particular order in their oral and written submissions does not constrain the Tribunal from considering the exemptions in a different order or, potentially, reaching a different conclusion for different reasons.[53]The withheld information is described in the CO’s submissions to the IC dated 20 April 2024 on page B118-9 of the OPEN bundle as follows:
“The information in scope of this request…specifically relates to a former minister’s engagement with the ministerial appointments process…The information in scope of this request therefore is a document used as part of this ministerial appointments process. The specific information was created ahead of Rt Hon Chris Pincher’s appointment as Deputy Chief Whip in 2022.”
Section 40[54]In his appeal grounds, Mr Greenwood argued that section 40 has been misapplied, as Mr Pincher can have no reasonable expectation of privacy. He said that, as a journalist trying to obtain information about Mr Pincher’s appointment when allegations of sexual harassment had already been made, he is pursuing a legitimate purpose and interests. He then argued that disclosure of the withheld information is necessary to meet these interests, that the disclosure is necessary to ensure the PET team is held accountable for its approach to the appointment of Mr Pincher, and that the disclosure would be fair and transparent. He argued that in terms of the balancing test (between legitimate interest in disclosure and legitimate privacy interests), given the nature of the allegations against Mr Pincher his interest in privacy about his professional affairs is “extremely weak”. As a minister and an MP, who was recalled by his constituents, Mr Pincher can have no reasonable expectation of privacy.[55]He concluded that there could be no doubt that disclosure would be fair and transparent. He stated:
“It is very clear under the DPA that persons with no reasonable expectation of privacy cannot expect information about their professional affairs to be withheld. It is also common knowledge that the DPA is not a complete bar on disclosure, and it is hard to see a case that disclosure would be unfair in this case. Ministers and MPs are very aware of this position, given their enhanced personal disclosure requirements.”
[56]In his oral submissions, Mr Greenwood said that he considers that the test for whether the withheld material was disclosable was met. He stated that there was no other way of obtaining the information, so making the request was necessary. He argued that politicians in general and Mr Pincher in particular can only have a very limited expectation of privacy in relation to their public life, and cannot have the same expectation of privacy as they do in relation to their private information.[57]The CO in its skeleton argument disputes Mr Greenwood’s assertion that Mr Pincher has no reasonable expectation of privacy. It argues that the connection between the withheld material and the interests identified by Mr Greenwood is too tenuous to override the principle that processing of personal data should be foreseeable and transparent to the data subject. It disputed that the matters relied on by Mr Greenwood make it necessary to disclose and argues that disclosure would be unwarranted by reason of prejudice to the data subject.[58]In his OPEN submissions, Mr Pitt-Payne disputed Mr Greenwood’s assertion that Mr Pincher can expect only limited privacy, because he said this was too broad and too blunt. He referred the Tribunal to the case of Paterson v UK [2024] ECHR 759, a case involving the right to private life under Article 8 of the European Convention on Human Rights. Although the claim was dismissed, the court found that Article 8 was engaged. It held that although in that case any interference with the Article 8 right was within the margin of appreciation of the UK state and not a disproportionate interference, just because a politician is facing allegations does not mean that they have a limited expectation of privacy. The expectation of privacy will depend on all the circumstances including where the information was generated or shared and the circumstances in which the right to privacy was obtained.[59]Mr Pitt-Payne said that the CO’s position was that disclosure of the withheld information would disclose the personal data of Mr Pincher and would breach data protection principles. Primarily its contention was that disclosure would not be lawful because the requirement for legitimate interest was not met.[60]He went on to say that disclosure was not necessary because of the limited contribution which the withheld material would make to any public interest. He argued that any legitimate interest was outweighed by the prejudice to the data subject. The withheld information relates to information about Mr Pincher that was communicated in circumstances where there was an expectation that the information would not be shared at all, or would be shared only in a limited way for a specific purpose. Discussion and conclusions[61]As set out above, the first question we need to determine is whether the withheld information constitutes personal data of a third party.[62]In this instance, having reviewed the withheld information, we are satisfied that in its entirety it is information relating to an identified or identifiable individual, namely Mr Pincher (the data subject). We set out our reasons more fully in the CLOSED decision.[63]Having concluded that the information does comprise third party personal data, the next question is whether its disclosure other than under FOIA would contravene any of the data protection principles. As discussed above, we consider that the relevant provision at Art. 5(1)(a) of the UK GDPR is that personal data shall be “processed lawfully, fairly and in a transparent manner in relation to the data subject”.[64]We then considered a number of factors which may be relevant when determining whether this data protection principle would be contravened by disclosure, particularly in relation to fairness. These include:a. The possible consequences of disclosure and its impact on the data subject,b. the reasonable expectations of the data subject both at the time when the information was collected and the time of the request,c. the nature of the information,d. the circumstances in which it was collected, ande. whether it is in the public domain.[65]The CO in its skeleton also directed the Tribunal to the case of Johnson v Medical Defence Union [2007] EWCA Civ 262; [2008] Bus LR 503 at §141 per Arden LJ. This involves consideration of the fairness to the data subject, the data user, the consequences of disclosure, the general interest in transparency and the purpose of the Data Protection Act to protect personal data.[66]We consider that the consequences of public disclosure of the withheld information would be severe for the data subject, including personal distress. Neither the nature nor the content of the information was in the public domain and it was collected in such a way that it was never intended to be so. We set out our reasons more fully in the CLOSED decision.[67]We are not persuaded by Mr Greenwood’s arguments that the data subject cannot have any reasonable expectation of privacy in relation to his personal data. Mr Greenwood’s argument was in relation to data concerning Mr Pincher’s public life and roles as an MP and minister, but we are concerned here with personal information provided in a confidential context and not information relating to the conduct of an individual in the performance of a public role.[68]Following Paterson, we agree with the CO that Article 8 is engaged and the data subject’s privacy rights should not be limited in relation to the specific withheld material just because he was at the time a politician facing allegations.[69]We then considered the CO’s contention that it would not be lawful to disclose the withheld information and the question of where the balance lies between the interests, rights and freedoms of the data subject and the legitimate interests pursued by Mr Greenwood.[70]As the CO explained in its skeleton argument, there is a balancing test under Article 6 (1) of UK GDPR which needs to be undertaken where the legitimate interests pursued by a third party are balanced against the interests (or fundamental rights and freedoms) of the data subject. This must be determined as at the date of the refusal of the information request in question, which here is 4 August 2022. The test requires three questions to be answered, namely:
“(i) Is the data controller or the third party or parties to whom the data are disclosed pursuing a legitimate interest or interests? (ii) Is the processing involved necessary for the purposes of those interests? (iii) Is the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject?”
[71]In his OPEN submissions, Mr Pitt-Payne said that the CO accepted that Mr Greenwood was pursuing a legitimate interest but that disclosure was not necessary because of the limited contribution which the withheld material would make to any public interest. He argued that any legitimate interest was outweighed by the prejudice to the data subject. The withheld information relates to information about Mr Pincher that was communicated in circumstances where there was an expectation that the information would not be shared at all, or would be shared only in a limited way for a specific purpose.[72]We accept that, in making the information request, Mr Greenwood was pursuing legitimate interests in his work as a journalist and that there was a public interest in learning about both the process of ministerial appointments in general and the appointment of Mr Pincher in particular.[73]We are not satisfied that disclosure of the information was necessary, because we do not consider that disclosing the withheld information would materially advance public interest in or understanding of either the process of appointing ministers or Mr Pincher’s particular appointment. While it may be said that disclosure of the information is desirable for the benefit of public interest, it cannot be said to be necessary for a legitimate purpose.[74]Following Proposition 7 in Goldsmith, because we consider that Article 8 rights are engaged, we need also to consider the third part of this test. We consider that the impact on Mr Pincher’s personal life and interests would be very significant and that, in circumstances where it was not necessary to disclose the information, this impact and prejudice to his rights, freedoms and legitimate interests outweigh the legitimate interest pursued by Mr Greenwood.[75]We therefore conclude that Section 40(2) is engaged and that the CO was entitled to rely upon it to resist disclosure of the withheld material in its entirety.[76]Because we found that section 40(2) is engaged in relation to all of the withheld material, there is no need for us to go on to consider Sections 36 or 41 FOIA. However, we have decided to do so because these were live issues in the appeal and argued before us. Section 36 – application of the public interest test[77]The starting point is that the exemption is engaged because it is accepted that the opinion of the QP is reasonable. The Tribunal is also satisfied that the opinion is reasonable. We therefore proceed to consider the public interest and where the balance weighs.[78]Following the judgment in APPGER, we need to apply a three-stage process to determining where the balance of public interests lies. This involves considering:a. The harm or prejudice which would result from disclosure;b. Factors in favour of disclosure; andc. Factors in favour of maintaining the exemption. The harm or prejudice which would result from disclosure[79]In the Second Decision Notice, the IC summarised the QP’s response as follows in the course of concluding that it was reasonable:a. In relation to section 36(2)(b)(i) and (ii), the IC accepted that: i. it is not unreasonable to hold the opinion that disclosure of the withheld information would inhibit the ability of officials to advise a future Prime Minister freely and frankly and inhibit the free and frank exchange of views between ministers and PET during the ministerial appointment process (paragraph 56) ii. it is reasonable to hold the opinion that disclosure presents some risk to the confidentiality of the process. This is because ministers’ trust in the process and its confidentiality would be damaged, thus compromising their ability and desire to freely engage with the process. (paragraph 57)b. In relation to section 36(2)(c), the IC accepted that: i. disclosure of the information could also lead to an erosion of Minsters’ privacy due to targeted public scrutiny of the details contained in the withheld information; (paragraph 62) ii. disclosure could hinder the appointment process overall as greater amounts of resource would be taken up responding to future requests by PET officials running the appointment process. (paragraph 62).[80]In its Response, the CO argued that the heads of prejudice in this case centre upon the integrity and effectiveness of the process of ministerial appointments by the Sovereign on the advice of the PM. There is an exceptionally strong public interest in the effectiveness of the arrangements that underpin this essential constitutional function. The fact that harm to these interests “would” arise is a significant feature in the balance: as it was put in Hogan and Oxford City Council v Information Commissioner [2011] 1 Info LR 588 at [35]— “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.”[81]The harm or prejudice which would result from disclosure is discussed in more detail in the CLOSED decision. Factors in favour of disclosure[82]In his complaint to the IC prior to the Second Decision, Mr Greenwood identified the following factors in favour of disclosure:a. The complaint history of the ministerial candidate and advice given around their appointment should have been laid out in writing to the PM. He stated “If clear written advice was not given…there are very serious questions about whether the Cabinet Office Propriety and Ethics Team is fit for purpose, given its crucial role in ensuring that governments are starkly aware of the facts when they make appointment”.b. He disputed that disclosure would risk eroding the ability of future PMs to perform their constitutional role in ministerial appointments. He stated “there is a clear interest of transparency, where things have gone wrong, in knowing how that person came to be appointed.”c. He also disputed that there is a public interest in allowing “free and frank exchange of views” when appointing ministers – he argued that this “actively harms the public by risking making appointments of clearly unsuitable persons more likely, especially around cases where things have very seriously gone wrong.”[83]In his grounds of appeal, Mr Greenwood additionally identified the following factors:a. CO civil servants should be providing the same advice, even if they knew there is the potential it can be disclosed.b. Transparency around the ministerial interests process would in fact strengthen the process by holding it to external account.c. If usual processes had the outcome of someone who was a risk to colleagues being appointed, then those processes should be subject to scrutiny to question if they are appropriate.[84]In his response to Mr Madden’s witness statement dated 31 March 2025, Mr Greenwood argued “The public interest strongly favours disclosure of the withheld information to ensure transparency, accountability and public confidence in government processes.”[85]The CO in its submissions to the IC prior to issue of the Second Decision accepted that this particular appointment was of interest to the public. The CO also accepted that there was higher than usual public interest in the appointment due both to Mr Pincher’s actions and the fact that this appointment directly correlated to the resignation of Boris Johnson as PM.[86]The CO in its skeleton argument recognised that there are public interests in transparency around(i) the ministerial appointments process in general and(ii) the appointment of Mr Pincher in particular. However, it argued that neither of these, separately or together, outweigh the public interest in avoiding the harms identified by the QP.[87]It argued that the specific interest in transparency relating to Mr Pincher’s appointment has been served by the significant public and parliamentary scrutiny around the time of the request. It notes from paragraph 51 of Mr Madden’s OPEN statement that a statement was made in Parliament explaining what Mr Johnson knew about the allegations relating to Mr Pincher and when. In relation to the public interest in transparency concerning the appointment process in general, it is outweighed by the public interest in favour of maintaining the exemption and the public interest in transparency would not in fact be advanced by the release of the withheld material. Factors in favour of maintaining the exemption[88]The CO in its submissions to the IC prior to the Second Decision made a number of arguments in favour of withholding the information. These were summarised by the IC in the Second Decision Notice as follows:a. Section 36(2)(b)(i) - It is essential that the PM has a safe space in which he can consider and make ministerial appointments: this allows him to fully consider all the options, and relies on officials being able to gather, assess and communicate sensitive personal information, free from the threat of media speculation about that information.b. Section 36(2)(b)(ii) - It is an essential principle for the effective functioning of government that individuals can provide free, frank views in private, with the expectation that publicly a united front will be maintained.c. Section 36(2)(c) - There is a strong public interest in the PM being able to effectively allocate ministerial roles at his discretion, whilst fully understanding any relevant interests that prospective ministers might hold.d. In addition to this, information relating to ministerial appointments is made public: meaning the public interest in this is met by the outcome of the process being published. Relevant interests of ministers are also published through the List of Ministers’ Interests and the relevant Parliamentary Register of Interests, meaning there is a high volume of material already in the public domain relating to each and every ministerial appointment.e. There is already an unusually high volume of information in the public domain relating to the appointment of Mr Pincher through the statement of 5 July 2022 to the House of Commons made by the former Minister for the Cabinet Office, Rt Hon Michael Ellis MP. The CO stated that it believed what is contained in the information in scope does not add much to the information already in the public domain. It simply confirms what Mr Ellis set out in his statement: that the government followed the usual ministerial appointment procedures. Discussion and conclusions[89]Having assessed the relevant factors and arguments on both sides of the public interest test, we consider that the IC was correct to hold that the CO was entitled to rely on section 36 (b) and (c) to withhold the requested information because in all the circumstances of the case the public interest in maintaining those exemptions outweighs the public interest in disclosing the information. We set out our reasoning on this and the factors we took into account in more detail in the CLOSED decision. Section 41[90]Mr Greenwood argued that in relation to section 41, if information could suggest wrongdoing, it cannot be withheld. He considers this would provide a sufficiently strong public interest defence to any actionable breach of confidence in this case, given the seriousness of the matters concerned and the clear public interest in understanding how the PET operates.[91]In his oral submissions, Mr Greenwood said that the information was provided to the PET in the knowledge that some of it would subsequently be published in the register of ministerial interests. In those circumstances, he said it was hard to see how this could create an obligation of confidence. In any event, he said that the harm which arose to people affected by the actions of Mr Pincher was such that there was a clear public interest in disclosure and that this would be sufficient to defeat a breach of confidence claim. He considered it very important to shed light on how government works in relation to the PET.[92]The CO argued that the withheld material was created in circumstances of utmost confidentiality and there is no countervailing public interest capable of overriding the duty of confidence in this case.[93]In making submissions on behalf of the CO, Mr Pitt-Payne argued that there were clear expectations of confidentiality in respect of personal information provided by potential ministerial appointees. Addressing the argument Mr Greenwood had made about the overlap between the ministerial interests declaration process and the ministerial appointments process, he said that some information about ministerial interests may be made public under specific provisions applicable to such interests and it was true that ministers understood this. However, the appointments process is separate and in general terms there is an expectation that information in relation to pre-appointment conversations will be treated in confidence. The fact that there is a specific route for the publication of ministers’ interests does not displace the expectation of confidentiality in the appointments process. Discussion and conclusions[94]We are satisfied that there was an expectation of confidentiality for those engaged in the ministerial appointment process which is separate from the process for declaring ministerial interests. Accordingly, we conclude that section 41 was engaged, and the CO was entitled to rely on it to refuse disclosure of the withheld material.[95]Having been satisfied that sections 40(2), 36(2)(b) and (c) and 41 are engaged in relation to the entirety of the withheld information, we therefore dismiss the appeal.