Pat McArdle v The Information Commissioner [2025] UKFTT 623 (GRC)

[2025] UKFTT 00623 (GRC)Case Reference: FT/EA/2024/0066
First-tier Tribunal
(General Regulatory Chamber)
Date 03 June 2025
Information Rights
Decided without a hearing
Before
JUDGE HARRISJUDGE FOSSMEMBER PEPPERELL
Between
PAT MCARDLEAppellantTHE INFORMATION COMMISSIONERRespondentMINISTRY OF JUSTICERespondentDecision: The appeal is DismissedThe decision of the Information Commissioner dated 7 April 2024 is confirmed.REASONS

Background to the appeal

[1]This appeal is against a decision of the Information Commissioner (the First Respondent) IC Notice IC-234438-Y6H8 made on 7 February 2024 against the Ministry of Justice (the Second Respondent) in relation to material produced by the Government Actuary (“GA”) and Government Actuary Department (“GAD”) concerning the 2017 and 2019 revised Personal Injury Discount Rate (“PIDR”).[2]PIDR is a rate prescribed by the Lord Chancellor and used by the courts in personal injury claims to assess the size of lump sum awards in significant personal injury claims. It is intended to reflect the principle that damages should, so far as possible, put the claimant in the same position as they would have been had the accident not taken place and to reflect the real rate of return that a recipient of relevant damages could reasonably expect to receive if they invested their award. Changes were made to this rate following consultation in both 2017 and 2019 which were controversial. (Further discussion of PIDR and details of what happened are set out at paragraphs 2-13 of the Second Respondent’s Response.)[3]The complainant and Appellant, Pat McArdle, made a request for information from the Second Respondent on 17 January 2023 in the following terms:
“I would like to request copies of The earlier GA/GAD drafts and The comments by the Government Economic Service and/or the Analytical Service Division of the Ministry of Justice on those earlier drafts of The GAD Personal Injury Discount Rate analysis of 17 July 2017 and The GA’s advice to the Lord Chancellor dated 25 June 2019.”
The earlier GA/GAD drafts and The GAD Personal Injury Discount Rate analysis of 17 July 2017 and The GA’s advice to the Lord Chancellor dated 25 June 2019.”

The GAD Personal Injury Discount Rate analysis of 17 July 2017 and

[4]The Second Respondent provided a response on 10 March 2023. It confirmed that the information was held but it was being withheld under section 35(1)(a) of the Freedom of Information Act 2000 (“FOIA”) on the basis that the information held relates to the formulation or development of government policy. The Appellant sought an internal review on 13 March 2023 and on 3 April 2023 the Second Respondent upheld its original decision.[5]The Appellant complained to the First Respondent on 23 May 2023 about the way his request for information had been handled.[6]During the First Respondent’s investigation, the Second Respondent revised its decision confirming that it was now withholding the requested information under section 36(2)(b) (i) and (ii) of FOIA, relating to the effective conduct of public affairs. This was on the basis that disclosure of the information 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. The Second Respondent wrote to the Appellant on 15 August 2023 informing him of the revised decision.[7]The Appellant confirmed to the First Respondent on 11 September 2023 that he remained dissatisfied with the Second Respondent’s decision. He made the following points in his request to the First Respondent to investigate the decision:a. The Second Respondent erred in relying on Section 35 and Section 36 was not applied;b. The Second Respondent’s reluctance is entirely forward-looking/precautionary which is not allowedc. There is no evidence of certification by a qualified person;d. There is no evidence of a section 36 public interest test having been applied;e. The qualified person’s opinion must be reasonable;f. The level of sensitivity is low;[8]The First Respondent issued a Decision Notice on 7 February 2024 in which it found that it was not unreasonable to engage section 36(2)(b) in this case and that the public interest favours maintaining the exemption. Abbreviations used in this decision “FOIA” means the Freedom of Information Act 2000 “GA” means Government Actuary “GAD” means Government Actuary Department “MOJ” means the Ministry of Justice “PIDR” means the Personal Injury Discount Rate. “QP” means the Qualified Person under section 36(5)(a) of FOIA “The request” means the Appellant’s FOIA request to the Second Respondent dated 21 February 2024. “UT” means Upper Tribunal (Administrative Appeals Chamber)

Procedural matters relating to the determination of this appeal

[9]The parties opted for paper determination of the appeal. The Tribunal is satisfied that it can properly determine the issues without a hearing within rule 32(1)(b) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended).[10]The Tribunal considered an open bundle of documents (255 pages). In this decision we refer to page numbers of documents in the open bundle with the prefix OB.[11]The Tribunal also considered a closed bundle of withheld documents (305 pages). This consisted of information which was responsive to the Appellant’s request, including draft documents and comments from various parties, but which was being withheld by the Second Respondent pursuant to Section 36(2)(b)(i) and/or (ii).[12]Prior to the hearing an application under rule 14 of the Tribunal Rules had been made as regards the withheld material and an order made that disclosure of the information contained in the closed bundle would defeat the purpose of the appeal[13]Having considered all the evidence, the Tribunal’s view was that the reasons for its decision could be properly set out in an open decision and therefore did not prepare a separate closed decision. The Appeal[14]The Appellant appealed the First Respondent’s decision to the Tribunal on 21 February 2024. The Appellant set out in his grounds of appeal that he considered that the First Respondent had erred in not addressing the following questions:a. whether the Second Respondent can “change horses after the event”, by which he meant changing the exemption on which it relied to resist disclosure after having communicated the previous ground to the Appellant;b. Whether the Second Respondent can change grounds without informing the complainant. The First Respondent’s response[15]The First Respondent filed a response to the appeal on 28 March 2024. In response to the Appellant’s grounds of appeal, it submitted that:[16]The principle in Birkett v DEFRA [2012] AACR 32, paragraph 58, means that a public authority can raise a new exemption on which it relies either before the First Respondent or the Tribunal, because the Tribunal must consider any relevant issues put to it by any of the parties.[17]The Second Respondent did inform the complainant of the revised decision on 15 August 2023.

The Appellant’s reply to the First Respondent’s response

[18]The Appellant responded to the First Respondent’s response on 11 April 2024. He made the following points:[19]He accepted that Birkett v DEFRA allows a public body to substitute new grounds for exemption, but relied on the Upper Tribunal’s finding that a public authority is allowed to change its position to disclose information because if it were not allowed to do so, this might hamper a full consideration of the public interest and prevent the interests of third parties being taken into account. He argued that the Second Respondent was switching between two exemptions as a matter of convenience.[20]He says that he did not receive any communication that the Second Respondent had changed the exemption on which it relied until notified by the First Respondent on 30 August 2023.

The Second Respondent’s Response

[21]The Second Respondent filed a response to the appeal on 28 May 2024. In this, it explained what PIDR is and changes which were made to the rate in 2017 and 2019. It stated that on 24 July 2023, the Second Respondent sought the opinion of a qualified person (Minister Argar) to confirm whether the exemptions in Section 36(2)(b)(i) and (ii) applied to the information sought by the Appellant. Minister Argar confirmed that this was the case on 26 July 2023.[22]The Second Respondent went on to deal with the points raised in the Appellant’s request to the First Respondent to investigate made on 11 September 2023 (see above). It argued the following:a. The Second Respondent had relied on the opinion of Minister Argar in changing the exemption to s.36.b. The Second Respondent prepared a letter to the Appellant dated 15 August 2023 which was not sent out due to an administrative error, but this does not undermine the validity of the Second Respondent’s positionc. The Second Respondent’s reliance on section 36(2)(b) relates not to a concern about future candour within departments, but a specific concern about how the disclosure of the information sought would have a chilling effect on the process for setting PIDR in future and specifically in the 2024 review which was by that point underway.d. The Second Respondent had considered the public interest for and against disclosure and concluded that the case for openness and transparency was outweighed in this instance by the public interest in government officials and their advisers having a neutral space to discuss matters in a free and frank way allowing them to consider all options available. Further, the public interest in transparency had been addressed through the disclosure of substantial volumes of material in relation to the decisions concerning PIDR rate in 2017 and 2019.e. On reasonableness, the test for the Tribunal is not whether it agrees with the qualified person’s opinion, but whether that opinion fell within the range of reasonable opinions.f. It also identified some information which it says is exempt from disclosure under section 42 of FOIA on the basis that it is subject to legal professional privilege. This material was included in the closed bundle.

The Appellant’s Reply to the Second Respondent

[23]The Appellant responded to the Second Respondent’s response on 11 June 2024. He made the following significant points:a. The absence of a formal need to notify the Appellant of the change of exemption is “either an oversight or because it was regarded as so axiomatic that there was no need to provide for it”. He stated that he had not seen anywhere a suggestion that an exemption can be relied upon without informing the FOI requestor.b. The Appellant now accepts that “on the basis that the FTT is bound by the judgment of the Upper Tribunal, the MOJ can change horses after the event, even though he questions whether that judgment applies in the particular circumstances of this case”c. He does not understand how the 2017 and 2018 comments are relevant to the 2024 PIDR review.d. He has not seen the qualified person’s certification and notes that this is not conclusive as to prejudice in any event.

The legal framework

[24]Section 1 FOIA creates a duty to disclose information held by public authorities. That duty exists whether that information is accurate or not; if it is held it is subject to the regime in FOIA albeit the accuracy of the information may be relevant to any balance of the public interests.[25]The duty to disclose information held by public authorities is subject to exemptions. There are two types of exemption: absolute and qualified. An exemption will be “qualified” where, if the exemption is engaged, the relevant public interests must be balanced to determine whether the public interest in maintaining the exemption outweighs the public interest in disclosure pursuant to section 2 FOIA. An absolute exemption will not require the balancing of the public interests. Section 36 provides a qualified exemption so we must balance the public interest in considering it.[26]Following the cases of R (Evans) v Attorney General [2015]UKSC 21 and Montague v The Information Commissioner and Department for International Trade [2022] UKUT 104 (AAC) and [2023]EWCA Civ 1278 it is clear that the Tribunal should apply the public interest balance at the date of refusal, not at the date of an internal review, and thus not at any later date such as where there is a later reliance on additional or different exemptions.[27]Section 36 of FOIA provides:
“(1) This section applies to Information which is held by a government department or by the Welsh Assembly Government and is not exempt information by virtue of section 35 and Information which is held by any other public authority”. (2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this act: ... 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; ... (5) in subsections (2) and (3) “qualified person”
In relation to information held by a government department in the charge of a Minister of the Crown, means any Minister of the Crown.” Would, or would be likely to, inhibit

The free and frank provision of advice, or

[28]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 (GIA/447/2017), where it held that “reasonable” in section 36(2) “means substantively reasonable and not procedurally reasonable”.[29]As section 36(2)(b)(ii) is a prejudice-based exemption, the reasonable opinion must consider the question of whether disclosure would or would be likely to inhibit the free and frank exchange of views for the purposes of deliberation. In considering the factors that militate against disclosure the primary focus should be on the particular interest which the exemption is designed to protect.[30]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.”
[31]The Tribunal's powers in this appeal are set out in section 57 and 58 FOIA. If we are satisfied that the Information Commissioner'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 Information Commissioner.[32]FOIA is concerned with information and not documents, the provisions of section 11 means that information contained in documents may be communicated other than by providing a copy of the document that holds it, for example by extracting the text of the information to be communicated. The Issues Initial issues[33]In his initial grounds of appeal, the Appellant sought a decision on two points which he said the First Respondent had erred by not addressing in its Decision Notice.[34]Firstly, the Second Respondent had initially relied upon Section 35(1)(a) of FOIA (formulation of government policy) to resist disclosure of the information sought, but had subsequently changed its view in August 2023 to rely upon section 36(2)(b) (prejudice to effective conduct of public affairs).[35]Secondly, he said that the Second Respondent had not notified him of the fact it had changed the exemption on which it sought to rely and he did not know about this until told of the change by the First Respondent on 30 August 2023. The Appellant confirmed that he wished the First Respondent to continue to investigate the non-disclosure under section 36(2)(b) on 11 September 2023. Substantive issues[36]The Appellant stated in his notice of appeal that he sought an order to allow the appeal and substitute a notice that orders the Second Respondent to take steps in relation to the request for information. The substantive issue in this case is, therefore, whether the Second Respondent could rely on Section 36(2)(b) to resist disclosure of the information sought. The Tribunal must therefore determine whether the information sought is exempt under Section 36(2)(b) and whether the public interest favours maintaining the exemption or disclosing the information.[37]The Second Respondent’s response also raised the question of whether certain of the withheld documents might be exempt from disclosure under Section 42 (legal professional privilege). Discussion and conclusions[38]We deal first with the initial issues, as the parties’ respective positions on this have evolved during the course of the appeal. The initial issues[39]The Appellant made lengthy submissions in his Reply to the First Respondent’s response, in which he considered the ICO’s Guidance on Section 36 which indicated that it is bad practice to introduce a new exemption at a late stage and the case of DEFRA v Information Commissioner and SB [2011] UKUT (AAC) (the Upper Tribunal iteration of the case referred to as Birkett above, which we refer to as the DEFRA UT decision) which had been raised by the First Respondent in its response. He stated that “I accept the de facto situation that DEFRA/Birkett allows a body like the [Second Respondent] to substitute new grounds for exemption, not willy-nilly but because this is necessary to correct errors and omissions and because to do otherwise might hamper a full consideration of the public interest and prevent the interests of third parties being taken into account.”[40]The Appellant relied on paragraph 35 of the DEFRA UT decision to support his position in relation to substitution of new exemptions to correct errors. The relevant passage reads “Legislation has to be interpreted so that it is workable. No administration is perfect. Documents can be misplaced, overlooked or difficult to find. Officials may fail to identify the potential application of exemptions. They may also make accidental mistakes, for example by wrongly overwriting an earlier notice or incorrectly completing a template when drafting the section 17 notice.”[41]He also relied on paragraph 29, which stated “In summary, a public authority is allowed to change its position to disclose information. If it is not allowed to change its position to rely on another exemption, this may hamper a full consideration of the public interest and prevent the interests of third parties being taken into account.”.[42]We considered the DEFRA UT decision in some detail. We determined that it was open to the Tribunal to consider a matter on the basis of a different exemption from that initially relied upon, because under Section 58 of FOIA it is the role of the First-tier Tribunal to determine the matter before it afresh and there is nothing to preclude it from considering a new exemption. In support of this we relied on paragraphs 57 and 58 of the DEFRA UT decision which read as follows:
“There are various formulations in different legislation, but generally they have in common that the tribunal is required to undertake a fresh consideration of the case on the evidence and arguments put to it. That is what I expect to find in the case of an initial appeal from a decision-maker in a public body, as the tribunal will give the case the first judicial consideration. 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. This is, of course, subject to any express or implied limitation. That is what section 58 does. 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 it by any of the parties. That includes a new exemption relied on by the public authority.”
[43]We therefore concluded that for the purposes of this appeal there was no reason why the Second Respondent could not rely upon an exemption on which it had not initially relied in resisting disclosure.[44]In relation to the Appellant’s point about not having been notified by the Second Respondent that it had changed the exemption on which it sought to rely, it is important to look at the chronology of what happened as follows.[45]On 15 August 2023 the Second Respondent wrote a letter to the Appellant informing him that the Second Respondent was now seeking to rely on Section 36(2)(b) to withhold the information sought. It appears that this was not sent to the Appellant on that date due to an administrative error.[46]On the same date, the Second Respondent sent a copy of this letter to the First Respondent (OB 181/pdf184) and advised it that the exemption upon which it was relying had changed to Section 36(2)(b).[47]On 30 August 2023 and again on 5 September 2023 the First Respondent emailed the Appellant, advised him that the exemption upon which the Second Respondent was relying had changed to Section 36(2)(b) and asked whether he wished the First Respondent to investigate the application of the new exemption. (OB 231-232/pdf 234-5)[48]The Appellant responded to the First Respondent by email on 11 September 2023 confirming he wished them to investigate the application of Section 36(2)(b). (OB230/pdf233). In this response he stated that “given that I was unaware of the switch from Section 35 to Section 36, it follows that I did not have the opportunity to make comments or seek an internal review under Section 36 and the qualified person, in turn, could not consider my comments.”[49]The Appellant submits in his Reply at page OB42/pdf45 that the fact that he had not received notification from the Second Respondent of a switch from Section 35 to Section 36 renders the decision to switch invalid.[50]In relation to this, the main thrust of the Appellant’s argument appears to be one of procedural unfairness; if he was not notified directly by the Second Respondent, then he did not have a fair opportunity to respond to this changed position. We disagree with this, because in effect the Appellant was notified of the change of position on 30 August and/or 5 September and given an opportunity to confirm that he wished the First Respondent to continue to investigate. This means that the latest stage at which the Appellant was aware of the change of position was 11 September 2023 when he responded with confirmation to the First Respondent. Any procedural unfairness created by the failure of the Second Respondent to notify the Appellant directly of the change is corrected by the fact that the Appellant appealed to this Tribunal on 21 February 2024, providing a further chance and ample time and opportunity for all relevant issues to be ventilated by him in the course of the appeal.[51]We also note that the Appellant made a further FOIA request to the First Respondent on 24 April 2024 for a copy of the Second Respondent’s letter dated 15 August 2023. This was provided to him on 24 May 2024, some 11 months before the hearing of this matter, again providing ample time to deal with any further issues arising from notification.[52]Mindful of the overriding objective to deal with matters fairly and justly set out in Rule 2 of the GRC Tribunal Rules, we conclude that there has been no material prejudice or unfairness to the Appellant as a result of the Second Respondent failing to notify him directly of the change of exemption and that the First Respondent did not err in not dealing with this in its Decision Notice. The substantive issues[53]Turning to the substantive issues, the first step in considering whether the information is exempt is to clarify whether Section 36 applies to the information in question. The fact that the Second Respondent is a government department and that it is no longer contending that the information is exempt by virtue of Section 35 is clearly sufficient to bring the information within Section 36(1).[54]The Upper Tribunal set out a number of principles to be followed in Section 36 cases in IC v Malnick [2018] AACR 29[55]At paragraph 31, the UT said that in relation to a decision under Section 36 “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.”[56]So in this case the Tribunal must first consider whether the QP’s opinion that the listed inhibition in section 36(2)(b)(i) or (ii) would or would be likely to occur is reasonable and proceed to consider the public interest balancing test only if that threshold is reached. Indeed, paragraph 33 of Malnick says “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”[57]We must therefore consider whether the QP’s opinion is a reasonable one. Malnick provides some further guidance on how to do this and what weight should be given to the QP’s opinion. Paragraph 29 explains “Parliament has chosen to confer responsibility on the QP for making the primary (albeit initial) judgment as to prejudice. Only those persons listed in section 36(5) may be QPs. They are all people who hold senior roles in their public authorities and so are well placed to make that judgment, which requires knowledge of the workings of the authority, the possible consequences of disclosure and the ways in which prejudice may occur. It follows that, 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.”[58]This was also considered by the Court of Appeal in Department for Work and Pensions v Information Commissioner & Zola [2016] EWCA Civ 758 (at paragraph 55) where Lloyd Jones LJ held:
“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.”
[59]Further assistance can be found in Guardian Newspapers Ltd, although as an Information Tribunal decision (in effect an earlier decision of this Tribunal) it is not binding upon the Tribunal in this case. Paragraph 54 said:
“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.” The Information Tribunal went on to say in paragraph 60:
“On the wording of section 36(2) we have no doubt that in order to satisfy the statutory wording the substance of the opinion must be objectively reasonable. We do not favour substituting for the phrase “reasonable opinion” some different explanatory phrase, such as “an opinion within the range of reasonable opinions”
. The present context is not like the valuation of a building or other asset, where a range of reasonable values may be given by competent valuers acting carefully. The qualified person must take a view on whether there either is or is not the requisite degree of likelihood of inhibition. We do, however, acknowledge the thought that lies behind the reference to a range of reasonable opinions, which is that on such matters there may (depending on the particular facts) be room for conflicting opinions, both of which are reasonable.”[60]The Tribunal has reviewed the withheld material which was provided to the QP in order to facilitate his decision as to whether there would or would likely to be prejudice in the form of inhibition to the free and frank provision of advice and/or the free and frank exchange of views for the purposes of deliberation. We considered that objectively the QP’s decision that there would be such prejudice is reasonable in that it falls within the reasonable range of responses which he could have made in expressing his opinion. We gave considerable weight to the fact the opinion came from a qualified person and that the material was prepared collaboratively for his consideration by a number of stakeholders.[61]The Tribunal also itself reviewed all the material in the closed bundle in detail and determined that in relation to each document which the Second Respondent wished to withhold that either Section 36(2)(b)(i) and/or (ii) applied. In deciding this we took into account the nature of the documents, the short timescale within which they were produced, which indicated concentrated deliberations, and the iterative nature of the process through which comments were sought from relevant stakeholders. We concluded that the QP’s decision was within the range of reasonable responses which he could have made to the request for his opinion. We were satisfied that, in line with the Court of Appeal’s decision in DWP v ICO (see paragraph 50 above), our determination of the reasonableness of the QP’s opinion reflects the Tribunal'sown assessment of the matters to which the opinion relates.[62]We concluded that the threshold of reasonableness of the QP’s opinion was met and proceeded to consider the public interest in maintaining the exemption or disclosing the material.[63]In APPGER v ICO [2013] UKUT 0560 (AAC) the Upper Tribunal gave guidance on how the balancing exercise required by section 2(2)(b) of FOIA should be undertaken as follows: […] “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 […] 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 […] exemption is claimed would (or would be likely to or may) cause or promote. Plainly that includes an identification of the relevant material and the circumstances in which it was provided to or obtained by the body claiming the […] exemption.” The Tribunal is satisfied that this approach is also appropriate when considering a Section 36 exemption.[64]The First Respondent outlined its consideration of the public interest issues at paragraphs 26-43 of the Decision Notice. It identified at paragraphs 26-31 a number of public interest arguments in favour of disclosure, particularly in relation to transparency and awareness of the information informing public debate around the PIDR.[65]It went on to discuss at paragraphs 32-36 the arguments in favour of maintaining the exemption. These included:a. “a wider public interest in maintaining a neutral space which allows officials to discuss the methodological and technical issues relating to policy decisions frankly.”b. Disclosure of draft advice and comments “would be detrimental as it would prevent officials from freely discussing matters prior to a ministerial decision”c. The need to ensure that decisions are robust and this would be undermined by disclosure of prior decisions.[66]The First Respondent concluded that the balance of the public interest was in favour of maintaining the exemption because the public interest in transparency has been addressed by placing information in the public domain that explains the government’s decision making and the setting of the PIDR. It also accepted the need for a neutral space for discussion of methodological and technical issues relating to policy development frankly. It found that the need for the Second Respondent to have access to unfiltered and frank advice outweighed the public interest in openness and transparency.[67]This is echoed by the Second Respondent in its response. It noted at paragraph 31 that the strong public interest in transparency had been addressed through the disclosure of substantial volumes of material in relation to both the 2017 and 2019 decisions. It therefore agreed with the First Respondent’s analysis.[68]The Tribunal recognises that the setting of the PIDR is significant to the public, because of the impact it has on individuals bringing personal injury claims, but also insurance markets, financial markets and the judicial process. However, in the particular circumstances of this case, we noted that a large amount of material relevant to the subject matter of the request is already in the public domain. We also considered that the usual publishing of the final decision and explanation for the rate of the PIDR created a modicum of certainty and robustness which could potentially be undermined by the release of earlier drafts before the final position was reached.[69]We considered that publication of earlier drafts of the published documents would add little to the information in the final version. We also considered that there would be an inhibiting effect on the ability of those working on the technical and methodological aspects of the drafts to exchange advice and comments freely if their earlier comments were to be published. In this connection we noted that policy discussions often proceed at pace and comments in drafts may be an efficient way of the various stakeholders communicating with each other to formulate a final view.[70]In all the circumstances of this case, we considered that the public interest in maintaining the exemptions outweighed the public interest in disclosure. We therefore decided that the First Respondent and Second Respondent correctly applied Section 36(2)(b)(i) and/or (ii) in resisting disclosure in this instance.[71]As we decided that Section 36(2)(b) was engaged, we declined to consider in the alternative whether Section 42 was engaged as the need for a further exemption did not arise.[72]For these reasons, we therefore dismiss the appeal.