Jenna Corderoy v The Information Commissioner & Anor [2025] UKFTT 673 (GRC)

[2025] UKFTT 00673 (GRC)Case Reference: EA/2024/0027V
First-tier Tribunal
(General Regulatory Chamber)
Hearing Heard on: 8 th May 2025Date 13 th June 2025
Information Rights
Heard by Cloud Video Platform
Before
JUDGE A. MARKS CBEJUDGE ARMSTRONG-HOLMESMEMBER P. TAYLOR
Between
JENNA CORDEROYAppellantTHE INFORMATION COMMISSIONERRespondentTHE CABINET OFFICERespondentJENNA CORDEROYAppellantTHE INFORMATION COMMISSIONERTHE CABINET OFFICERespondentsRepresented herself for Appellant for First Respondent: Unrepresented and not in attendance for Second Respondent: Jennifer Thelen (Counsel)Decision: The appeal is dismissedREASONS

Introduction

[1]This appeal is against the Commissioner’s Decision Notice (IC-200771-L6Z8), dated 3rd October 2023, which held that the Cabinet Office was entitled to rely upon section 14(1) of the Freedom of Information Act 2000 (“FOIA”) to refuse to comply with the Appellant’s request for a copy of Prime Minister Boris Johnson’s ministerial diaries for the period 1st March 2020 to 16th April 2020.[2]On 21st April 2022, the Appellant submitted a request to the Cabinet Office in the following terms:
“This is a request for information under the Freedom of Information act. I would like to request the following information: From 1st March 2020 to 16th April 2020, please provide a copy of Prime Minister Boris Johnson’s ministerial diaries. Please note, I am making this request out of the public interest. It is absolutely essential for the public to know – in full detail – the calls, events and meetings that took place when the pandemic gripped the UK. I would like to highlight that I recently received the ministerial diaries of Dominic Raab (request sent to the FCDO, FOI reference: FOI2021/27787). This did not engage section 12 or 14, and I had asked for more than 6 weeks’ worth of diaries. There is a clear precedent of government departments releasing ministerial diaries.”
[3]The Cabinet Office responded on 20th May 2022, refusing to comply on the ground that the request was vexatious, thereby engaging s.14(1) FOIA. The thrust of the Cabinet Office’s argument was that the request would place a disproportionate burden on its resources, and that given the sensitive nature of the Prime Minister’s diary, it was highly likely that the requested documents and records of meetings attended would engage one or more of the exemptions under Part II of FOIA.

The internal review and response

[4]On 31st May 2022, the Appellant asked the Cabinet Office to carry out an internal review.[5]The Cabinet Office provided the outcome of that internal review on 4th August 2022, maintaining its original position, namely reliance on s.14(1) FOIA to refuse to comply with the request. The Cabinet Officer reiterated that the request would place an unreasonable burden upon its staff and asserted that the Appellant was engaging in a ‘fishing expedition’ for information.

Complaint to the Commissioner

[6]On 4th November 2022, the Appellant complained to the Commissioner about the Cabinet Office’s refusal of her request.[7]In her complaint, the Appellant challenged the Cabinet Office’s view that her request for 6 weeks’ of diary entries could be said to be vexatious. She disputed the Cabinet Office's suggestion that the request was burdensome, particularly when she had received copies of ministerial diaries from other governmental departments.[8]Whilst acknowledging that s.14(1) FOIA is not subject to a ‘public interest test’, the Appellant submitted that her request had a serious purpose, legitimate aims and motivations, and that there was a “wider public interest and objective value” in disclosure of the diary entries.

The Decision Notice

[9]On 3rd October 2023, the Commissioner issued his Decision Notice. The Commissioner had seen two example diary entries from Prime Minister Boris Johnson’s diaries (which are the subject of a Rule 14 order and are contained within the Closed Bundle only) and had received further submissions from the parties. In summary, the Commissioner concluded that:(a) While there is no special protection or exemption afforded to the Prime Minister’s diary when compared to other ministerial diaries, certain considerations apply to the former which are different and more onerous than those applicable to the latter.(b) There are 522 diary entries falling within the scope of the request, a relatively large volume of information.(c) The Cabinet Office’s estimate of 10 minutes per entry to comply with the request was not supported by cogent evidence such as an adequate, timed sampling exercise and/or providing the steps needed to be undertaken for each diary entry sufficient to justify the estimate.(d) Entries in the Prime Minister’s diary would attract a wide range of FOIA exemptions, given the nature of his role, and consideration of the respective public interest considerations might be time-consuming.(e) Cabinet Office officials have significant expertise in the application of FOIA exemptions and would be expected to recognise quickly whether certain information would be exempt. However, not every diary entry would lend itself to immediate exemption recognition due to the wide- ranging responsibilities of the Prime Minister.(f) Concerns about the safety of the Prime Minister and his family are legitimate. Disclosure of diary entries which reveal the Prime Minister’s past whereabouts may reveal patterns from which a malicious individual might predict where the former Prime Minister or his family might be at a particular time of day (acknowledging that Boris Johnson was still the Prime Minister at the point the request was responded to).(g) Reviewing entries to determine whether their disclosure would present a risk to the Prime Minister and/or his family would require consultation with the No.10 Security Team, and sometimes the Metropolitan Police Service and other partners. Appropriate redactions of certain information would also be required, adding to the time and resources required.(h) Because the Prime Minister’s Office does not lead on policy as other Government departments do, for some entries cross-government consultation would be necessary to determine which exemptions apply e.g. whether policy issues remain under development.(i) Only limited individuals (not the FOI Team) have the experience and/or knowledge of the information, and sufficient clearances, to handle the request, adding further time to the process.(j) Whilst the Commissioner considered that the Cabinet Office’s time estimate of 87 hours may be inflated, given the breadth of the information involved and the limited individuals available to review the entries, he doubted the burden of responding to the request could realistically be brought down to a reasonable level. This burden would divert resources which no public authority could easily accommodate, even given the size and resources available to the Cabinet Office.(k) Whilst the time limit laid down by the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 is not directly applicable, the 24-hour limit is a useful starting point for assessing the burden of complying. However, the Commissioner noted the high threshold for refusing a request under s.14 FOIA.(l) Even if the Cabinet Office were able to review each entry in 5 rather than 10 minutes on average, this would still amount to 43 hours of staff time.(m) Whilst 43 hours cannot be considered unduly burdensome, when adding the time needed for necessary consultation and consideration of mosaic matters, although the matter is finely balanced the burden imposed upon the Cabinet Office would be an oppressive one.(n) However, any mitigating factors must also be considered, and the public authority must still balance the impact of the request against its purpose and value to determine whether the request is vexatious or not.(o) The Commissioner disagreed with the Cabinet Office’s claim that the request was a fishing expedition, or that it lacked purpose or focus. The Commissioner acknowledged the serious purpose of the request, and that it could potentially shed light on the issues raised by the complainant, such as lobbying.(p) The request covers a historically significant and unprecedented period in the early days of the Covid-19 pandemic: there is arguably a particular public interest in understanding how the Prime Minister organised his time and his meetings, contacts and appointments during this period.(q) While there is public interest in the disclosure of ministerial diaries, that information would not provide the ‘full detail’ of events and meetings: the entries are brief rather than detailed.(r) The UK Covid-19 Inquiry began to hear evidence in June 2023 and it is now public knowledge that the Inquiry panel is to be provided with an unredacted copy of the former Prime Minister’s diaries, covering the period of 1st January 2020 to 24th February 2022. However, in April 2022, when the request was made, it was not clear whether the diary was to be made publicly available as part of any Inquiry, or when any Inquiry report would be published.(s) Given the strain on the Cabinet Office’s resources, and its vital role during the pandemic, the Commissioner was satisfied that compliance with the request, at the time it was made, would be vexatious: the Cabinet Office was entitled to rely upon s.14(1) FOIA.

Appeal to the Tribunal

[10]On 31st October 2023, the Appellant sent a Notice of Appeal to the Tribunal, challenging the Decision Notice.[11]The Appellant submits that the Decision Notice was wrong in law. For the purposes of this appeal, the panel additionally considered whether the Commissioner ought to have exercised his discretion differently when deciding, taking into consideration the public interest in disclosure of the requested information, that the Cabinet Office was entitled to rely upon s.14(1) FOIA.[12]In support of her appeal, the Appellant submitted the following documents, which the Tribunal has read and considered:(a) Grounds of Appeal, dated 31st October 2023.(b) The Commissioner’s Decision Notice, dated 3rd October 2023.(c) The original Freedom of Information Act request, dated 21st April 2022.(d) The Response to that request, dated 20th May 2022.(e) The request for an internal review, dated 31st May 2022.(f) Correspondence regarding the Appellant’s complaint to the Commissioner, including press reports, various previous decision notices of the Commissioner and other materials appended to her submissions.[13]The Appellant invites the Tribunal to set aside the Decision Notice and substitute it with a decision notice which requires the Cabinet Office to disclose to her the Prime Minister’s diary entries for the relevant period. The Law Section 1(1) FOIA: General Right of access to information held by public authorities Any person making a request for information held to a public authority is entitled –(a) To be informed in writing by the public authority whether it holds information of the description specified in the request, and(b) If that is the case, to have that information communicated to him. Section 14(1) FOIA: Vexatious or repeated requests Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious.[14]The term ‘vexatious’ is not statutorily defined. However, in Information Commissioner v Devon County Council & Dransfield [2012] UKUT 440 (AAC), the Upper Tribunal held that the purpose of s.14 “must be to protect the resources (in the broadest sense of the word) of the public authority from being squandered on disproportionate use of FOIA.”. That formulation was subsequently qualified by the Court of Appeal in Dransfield v Information Commissioner [2015] EWCA Civ 454 to the extent that “that aim [is] one only to be realised if the high standard set by vexatiousness is satisfied.”.[15]In Dransfield, the Upper Tribunal identified four key issues were relevant when deciding whether a request is vexatious:(1) the burden (on the public authority and its staff);(2) the motive (of the requester);(3) the value or serious purpose (of the request); and(4) any harassment or distress (of and to staff). However, the Upper Tribunal pointed out that these four considerations were not exhaustive nor created a formulaic checklist: a holistic and broad approach was needed.[16]In Cabinet Office v Information Commissioner and Ashton [2018] UKUT 208 (AAC), the Upper Tribunal confirmed that s.14 FOIA may be invoked on the grounds of resources alone. A substantial public interest supporting the request does not necessarily trump an argument based on resources:
“In some cases, the burden of complying with the request will be sufficient, in itself, to justify characterising that request as vexatious, and such a conclusion is not precluded if there is a clear public interest in the information requested. Rather, the public interest in the subject matter of a request is a consideration that itself needs to be balanced against the resource implications of the request, and any other relevant factors, in a holistic determination of whether a request is vexatious.”
[17]The Upper Tribunal clarified that the public interest in the subject matter of the request must be balanced against the competing burden imposed upon the public authority by complying with that request.

The role of the Tribunal

[18]The Tribunal has the following powers when determining appeals against the Commissioner’s decisions for the purposes of FOIA: Section 57 FOIA: Appeal against notices…(1) Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice. Section 58 FOIA: Determination of appeals (1) If on an appeal under section 57 the Tribunal considers– (a) that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised the discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

Evidence

[19]The parties had submitted written evidence to the Tribunal prior to the hearing, comprising of an Open Bundle of 858 pages (including an index). The panel additionally had access to a Closed Bundle.[20]Ninjeri Pandit, Principal Private Secretary to the Prime Minister (and previously Director of the Prime Minister’s Policy Unit), gave oral evidence on behalf of the Cabinet Office in an Open session of the hearing (summarised below), and additionally during a Closed session. Ms Pandit additionally answered questions from the Appellant and the panel.[21]The Information Commissioner was not present nor represented at the hearing. Submissions

Summary of written and oral submissions on behalf of the Appellant

[22]In summary, the Appellant advanced the following arguments in support of the requested information being disclosed:(a) s.14(1) FOIA has not been applied properly.(b) The Cabinet Office’s time estimate to review each diary entry is inflated: it would not take 10 minutes to review each individual entry. Moreover, even the potential 5-minute time estimate referred to in the Decision Notice was inflated.(c) The 15 seconds the Cabinet Office estimates to review whether an entry contains information falling under the Environmental Information Regulations 2004 (“EIR”) is unnecessary as the request was made under FOIA.(d) Entries concerning national security or the safety of the former Prime Minister’s family could quickly and easily be identified and redacted.(e) Entries relating to press interviews, press conferences or public announcements would not attract wide-ranging consultations nor exemptions, and would take seconds to review.(f) Entries already published in transparency registers would not need to be reviewed, consulted on or attract any FOIA exemptions.(g) Ministerial diaries of other high-profile Secretaries of State at the time of the Covid-19 pandemic are very brief so reviewing the entries is likely to take only a couple of minutes per entry.(h) Diaries of other ministers had already been obtained through FOIA requests, including those of Dominic Raab, Matt Hancock and Andrew Lansley.(i) Prime Minister Boris Johnson’s diary should also be released in the public interest.(j) Disclosure of this diary would allow the public to examine how the former Prime Minister managed his time when the Covid-19 pandemic gripped the country.(k) Disclosure of the diary would also permit the public to gain further insight into lobbying activities, providing greater transparency, and establishing whether any meetings held during this period were fully declared.(l) The request is focused and there is a serious purpose behind it.(m) The period covered by the request is historically significant (i.e. during the Covid-19 pandemic) and there is a strong public interest in disclosure of the former Prime Minister’s diary to show how his time was managed during the early days of the Covid-19 pandemic. Summary of written and oral evidence and submissions on behalf of the Cabinet Office

Open evidence of Ninjeri Pandit

[23]Each of the Prime Minister’s diary entries lists a short description of the engagement, its timings and the names of individuals present. Each leg of a journey and the method of travel is recorded. The result is a comprehensive record of the Prime Minister’s movements 365 days a year.[24]The Prime Minister as the head of Government is engaged at the highest level of governance and diplomacy. Unlike other ministers, he receives Parliamentary and diplomatic protection at the highest level and is effectively ‘on call’ at all times: his diary therefore needs accurately to record his whereabouts at any given time.[25]The diary includes information about highly classified issues of domestic policy, national security and international relations; issues of a political or personal nature; and information about his family and their travel arrangements. Such entries are sensitive and there would be real security risks in disclosing them.[26]The originally estimated 650 entries initially provided to the Commissioner was later checked by Cabinet Office staff: the revised figure of 522 individual entries between 1st March 2020 to 16th April 2020 (the period of the request) is accurate.[27]The rationale for adopting an estimate of at least 10 minutes on average to review each entry in the Prime Minister’s diary is as follows:(a) 1 minute – Ascertaining whether the information is held, for the purposes of s.3(2) FOIA.(b) 15 seconds – Ascertaining whether the information is environmental information and thus subject to the Environmental Information Regulations 2004 (“EIR”).(c) 2 minutes – Ascertaining whether the information is already accessible to the requester, or is intended for future publication, and thus exempt under ss. 21 or 22 FOIA.(d) 3 minutes – Ascertaining which exemptions under FOIA are engaged and, where necessary, applying the public interest test required under those exemptions.(e) 30 seconds – Ascertaining whether the information includes personal data of junior officials, external stakeholders or third parties, thus engaging s.40(2) FOIA.(f) 3 minutes – Consulting with the No. 10 Security Team about the impact of release of information.(g) 15 seconds – Applying redactions in line with any exemptions determined to apply.[28]The responsibilities of individual Secretaries of State are inevitably narrower than the Prime Minister’s, are more specific in terms of policy area, and the security risks are also significantly lower. There is no reasonable comparison between the Prime Minister’s diary and those of other ministers.[29]The Prime Minister’s diary is also much more likely to include political entries because the Prime Minister is leader of the relevant party in power so significantly more likely to engage FOIA exemptions. This impacts upon the review process in identifying which entries are ‘held’ for the purposes of FOIA and, if so, what exemptions may apply.[30]Ms Thelen, on behalf of the Cabinet Office invited the Tribunal to dismiss the appeal in summary because:(a) The information does not lend itself to ready analysis, and the scope of the request is broad as the Prime Minister’s diary contains every aspect of his life and no two days are the same.(b) For each diary entry, the Cabinet Office would need to consider which entries were official, personal, and party political. The reviewer would then need to consider which, if any, of a number of potentially engaged exemptions applied.(c) Consideration of the 522 diary entries would require consultation with others and external research, conservatively estimated to take 10 minutes for each entry on average, over 87 hours in total.(d) Much of the information in the diary is sensitive and requires careful consideration as inadvertent disclosure could give rise to a security risk. The risk of a jigsaw effect is of particular concern.(e) The Cabinet Office would be required to contact the team responsible for managing the Prime Minister’s diary to ask them to identify the relevant entries and then send them to the FOIA team. The time for this is not included in the 10-minute estimate.(f) The examples (in the Closed bundle) demonstrate that the time estimate of 10 minutes is robust and not out of line with estimates in other cases, such as requests for the Attorney General’s diary (5-10 minutes per entry) and the Secretary of State for Environment, Food and Rural Affairs, where the total time taken to comply with the requests was estimated at 110 hours and 104 hours respectively. In those cases, reliance on s.14(1) FOIA was upheld by the Commissioner.(g) It is not always obvious whether EIR provisions apply to information e.g. material about transport links and infrastructure may well engage EIR and not FOIA.(h) As the Cabinet Office is not expert in all areas which the diary entries may touch upon, consultation with other branches of government may be required e.g. to understand the stage of development of a particular policy at the relevant time.(i) The public interest in the information is likely to be limited, as the entries do not provide detailed information about matters considered or discussed.(j) The request is not focused on issues relating to the Covid-19 pandemic but instead all aspects of the Prime Minister’s diary for the requested period.(k) The UK Covid-19 Inquiry (announced on 12th May 2021) is looking into the decisions taken in relation to the pandemic so the public will be provided with more detail and insight into the decisions taken.(l) The timing of the request (during the Covid-19 pandemic) would have placed a strain on the Cabinet Office’s resources.(m) The request covers a period when the Prime Minister was hospitalised or recovering from Covid-19. During this period, the Deputy Prime Minster attended events and meetings on behalf of the Prime Minister.(n) The Government already publishes comprehensive information about the Prime Minister’s official diary, and official information about meetings of the Cabinet and meetings with foreign heads of state and government: significant time and resources are deployed for this work.(o) The absence of a sampling exercise, as suggested by the Information Commissioner, is not a bar to the Tribunal having enough information to make an informed decision on this appeal.(p) The time estimate of 87 hours is well within the territory of cases which the Tribunal has previously determined presents a grossly oppressive burden.(q) In all the circumstances, the Cabinet Office was entitled to rely upon s.14(1) FOIA to refuse the request.

Gist of evidence heard in Closed Session

[31]The panel considered the Closed evidence and heard further oral evidence in Closed session from the Cabinet Office witness. The panel considered examples of the diary given in Closed session. Discussion The facts

Discussion

[32]The panel first considered the relevant facts of this case. Based on all the evidence provided, the panel made the following findings of fact on the balance of probabilities. Those findings shown underlined below are disputed: the panel’s reasoning for each such finding is set out below the underlined text.(a) The information which the Cabinet Office ‘holds’ within the scope of the request is included within the 522 entries contained in the Prime Minister’s ministerial diaries for the period 1st March 2020 to 16th April 2020.(b) However, not all of the 522 entries are ‘held’ for the purposes of FOIA because some relate to activities which are not ‘ministerial’ but are personal, such as travel arrangements for the Prime Minister’s family, while others are party-political due to the Prime Minister’s role as leader of his party. Scrutiny of each diary entry would be required to identify which entries comprise information ‘held’ for the purposes of the request, and which fall outside its scope.(c) Some diary entries are likely to fall within the EIR regime rather than FOIA. If the former, such entries would not be disclosable under FOIA as the two regimes are mutually exclusive: different presumptions and exemptions/exceptions to disclosure apply. Again, however, examination of each entry – and possibly further enquiry and research - would be required to establish under which regime each entry falls.(d) Since the Decision Notice was issued, the Cabinet Office has provided to the Tribunal a detailed explanation of the steps needed to be undertaken for each diary entry to justify its time estimate.(e) The Cabinet Office’s explanation of such steps provides cogent evidence to support the estimate of an average of 5-10 minutes to consider each entry. The panel’s reasons for this finding are: i. While the Appellant challenges the robustness of the Cabinet Office’s time estimate, she has provided no supporting evidence for her position, only her belief based on her understanding of what would be involved, and assertions based on time estimates in other FOIA cases involving ministerial diaries. ii. In the panel’s view, this approach fails to take account of the unique features of the Prime Minister’s diaries compared with other ministerial diaries such as: 1. The inclusion in the Prime Minister’s diaries of personal and family entries given the 24/7, 365 days a year nature of the Prime Minister’s role and the need for his office to know his precise whereabouts at all times; 2. Party-political meetings, calls and appointments due to the Prime Minister’s role as leader of his party; and 3. Security considerations, given the unique personal protection provided to the Prime Minister - and the risk of jeopardising his security through, for example, jigsaw collation of sensitive information about the Prime Minister’s travel arrangements. iii. Cabinet Office FOIA staff do not have direct access to the Prime Minister’s diary and must therefore liaise with those few individuals with such access and security clearance, thus adding a further step – and therefore additional time - to the process. iv. Further, many entries in the Prime Minister’s diary relate to other government departments and policies falling outside the Cabinet Office’s remit, thus requiring liaison with such departments to establish whether certain exemptions e.g. relating to policy development, would be engaged. v. Entries would have to be checked to see if they have already been published in transparency registers or through other public announcements – or were intended to be so published in future – thus engaging the exemptions of s. 21 and 22 FOIA. vi. Entries would also have to be considered for the possible engagement of other exemptions such as personal data (under s.40 FOIA) with consequent need for redaction; national security; and other FOIA exemptions including, where necessary, balancing of the public interest where such exemptions as are qualified rather than absolute under FOIA. vii. Liaison with other agencies such as the Metropolitan Police and other security partners would be required to ensure that disclosure of seemingly innocuous entries could in reality pose an immediate or cumulative security risk to the Prime Minister and/or his family. Error of law or wrongful exercise of discretion Is there an error of law in the Commissioner’s Decision Notice?

Error of law or wrongful exercise of discretion

[33]Having made the above findings of fact, the remaining issues for the panel in this appeal were(a) whether the Decision Notice was not in accordance with the law and(b) to the extent that the Decision Notice involved an exercise of discretion by the Commissioner, whether he ought to have exercised his discretion differently.[34]The Appellant submits there is an error of law in the Decision Notice: she challenges the Commissioner’s conclusion that the exemption in s.14(1) FOIA was engaged. The Appellant disputes that responding to the request would be so burdensome for the Cabinet Office as to be ‘vexatious’ under s.14(1) FOIA.[35]The panel does not accept the Appellant’s submissions on this ground for the following reasons:(a) As set out in paragraph 32(e)(ii) above, the panel considers misplaced the Appellant’s reliance on the time estimates for examining diary entries of other ministers’ diaries(b) The Appellant relies on the Commissioner’s rejection of government departments’ reliance on s.14(1) FOIA when she requested the ministerial diaries of Matt Hancock (when Secretary of State for Health and Social Care); Rishi Sunak (when Chancellor of the Exchequer); Liz Truss (when Secretary of State for International Trade); and Thérèse Coffey (when Secretary of State for Work and Pensions). In the panel’s judgment, far from the Commissioner’s position in such cases supporting the Appellant’s argument, if anything it undermines it: the Commissioner’s detailed assessment of each case on its particular facts and circumstances reinforces the panel’s view that the Commissioner was entitled in this particular case to accept the Cabinet Office’s evidence and arguments in support of its reliance on s.14(1) FOIA and to distinguish this case from those other cases.(c) The panel had the benefit of both written and oral evidence not available to the Commissioner to substantiate the credibility and robustness of the Cabinet Office’s estimate of an average of 10 minutes to review each diary entry to establish whether or not it was ‘held’ for the purposes of FOIA and, if so, whether and if so which exemptions were engaged and, where necessary, met the public interest test for refusing to disclose the information. The time estimate did not include elements such as liaison with other government departments which the panel considered would be required in the case of some diary entries.(d) The panel does not accept the Appellant’s objections to the time claimed for assessing whether or not a diary entry comprises environmental information: she argues her request for information was specifically under FOIA and that ‘information under the EIRs is also going to fall under FOIA in this case’. In the panel’s view, neither of these assertions are correct: because the FOIA and EIR regimes are mutually exclusive, environmental information is specifically exempted from disclosure under s.39 FOIA. For this reason, it would be necessary to establish which entries comprise environmental information and therefore fall outside the scope of the request.(e) Moreover, the panel is aware from its own long experience of assessing whether information is environmental information or not, this task is not always straightforward: it can be complex as well as time-consuming to identify whether information falls within the very broad scope of the EIR.(f) Likewise, the panel does not accept the Appellant’s challenge to the time claimed for identifying personal data of third parties. This too is exempt from disclosure , under s.40(2) FOIA. This is a complex statutory provision whose application to specific individuals – such as those meeting with the Prime Minister - could be complex and time-consuming.(g) As an example of third-party personal data, the panel is aware of material within the Closed Bundle including lengthy lists of those attending meetings (including online meetings) with the Prime Minister during the period covered by the request. In light of this, the panel is not satisfied that the average estimated time for redacting exempt personal data is, as the Appellant claims, ‘too long’.(h) While superficially attractive, the panel does not agree that diary entries already in the public domain are necessarily easily and therefore rapidly identifiable. The transparency registers are just one source of publicly available information and do not of course include information intended to be published in the future – as shown by the Inquiry’s publication of some entries from the Prime Minister’s diary falling within the scope of the request.(i) From the Tribunal’s previous experience of dealing with requests for information about the Prime Minister’s activities, whereabouts and travel arrangements, the panel disagrees with the Appellant’s argument that entries concerning national security or personal safety of the Prime Minister and/or his family can be ‘easily and very quickly redacted’. The Tribunal is well aware that even the most innocuous seeming Prime Ministerial engagements and visits can, in the expert opinion of those tasked with protecting national security or high-profile individuals, present a credible risk especially when combined with other information gathered over time.(j) Even though the Commissioner was somewhat sceptical of the Cabinet Office’s (at that time, unevidenced) time estimate, on balance he concluded that even if the Cabinet Office’s time estimate was twice what it should have been, even half that original time estimate was sufficiently burdensome to qualify as ‘vexatious’ for the purpose of s.14(1) FOIA.(k) In addition to this, the panel considers there is force in the argument that the timing of the Appellant’s request – while the pandemic was still ongoing – placed an unintentional but additional strain on the Cabinet Office at a time when it was already stretched by the impact on its work of the pandemic.(l) Overall, the panel is not satisfied that the Appellant has made out her case that the Cabinet Office’s time estimate to review the diary entries is so inflated – and that to respond to her request at the time was not otherwise so burdensome or ‘vexatious’ within the meaning of s.14(1) FOIA - as to render the Commissioner’s decision wrong in law. On the contrary, the panel concludes, with the benefit of further written and oral evidence at the hearing, that the time estimate was reasonable, robust and well-evidenced – and that the timing of the request added to the Cabinet Office’s burden in responding to it.

Did the Commissioner exercise his discretion wrongly?

[36]The panel went on to consider whether the Commissioner exercised his discretion wrongly: namely whether mitigating factors such as the public interest in disclosing the requested information sufficiently weighed against the burden of responding to the request as to take it outside the scope of s.14(1) FOIA.[37]The panel also considered whether the second and third elements of the test set out in Dransfield (namely the motive for, and the value or serious purpose of, the request) are met in this case.[38]The panel accepts – as did the Commissioner in his Decision Notice - that the request in this case was focused on a historical period of great importance, namely the run-up to and early days of the Covid-19 pandemic in the UK. The panel therefore also accepts that there was a public-spirited motive and a serious purpose behind the request.[39]Similarly, the panel agrees there is a strong public interest in information which shows how the Prime Minister managed his time during the period covered by the request. The panel accepts too that press reports at the time – provided by the Appellant in the Open Bundle - were critical of the way the Prime Minister prioritised his engagements: he was reported to have missed meetings of COBRA, the committee - normally chaired by the Prime Minister – which convenes during periods of peril to the nation. The panel accepts that disclosure of the requested information might shed some light on the accuracy of these reports – and provide other insights into the Prime Minister’s priorities and activities during a time of crisis for the country.[40]The panel was less convinced by the Appellant’s later, apparently supplementary, arguments that disclosure of the requested information would shed light on scandals relating to unlawful lobbying. While the panel accepted that there may be a ‘deficit of data’ as the Appellant described it, to the extent the Appellant means lobbying during and relating to the Covid-19 pandemic, the panel considered it likely this would be explored by the Covid-19 Inquiry. To the extent that the Appellant means other lobbying unrelated to the pandemic, the panel considers this undermines the focus of her request.[41]The panel also considers that the announcement of the Covid-19 Inquiry almost a year before the date of the request weakens the public interest in disclosing information pursuant to this request, even though at the time of the Cabinet Office’s response the Inquiry had not begun its work. In practice – though not of course known to, or taken into account by, the Cabinet Office at the time - the Inquiry has since issued directions (unsuccessfully challenged in the High Court) for production of the Prime Minister’s diaries for a much longer timeframe, including the period covered by the request. However, the panel accepts that at the time of the response to the request – and indeed to this day – it is unclear the extent to which the Inquiry report will publish or even refer to entries in the Prime Minister’s diary for the period of the request.[42]The panel bore in mind that – according to the Upper Tribunal in Ashton (see paragraph 16 above) - the public interest does not ‘trump’ an oppressive burden on a public authority in responding to the request. In this case,though there is a public interest in the information requested, this is just one consideration: it needs to be balanced against the resource implications of the request, and all the other relevant factors. The panel’s holistic determination in this case is that, notwithstanding the public interest in the information requested, the excessive burden on the Cabinet Office in responding to the request at a time of great strain, was sufficient to render the request ‘vexatious’ within the meaning of s.14(1) FOIA.[43]Further, for the reasons set out above, the panel does not accept that the disclosure of ministerial diary entries of various secretaries of state pursuant to FOIA requests – while ‘insightful and fed into wider reporting’ according to the Appellant – are analogous to the specific request in this case relating to the Prime Minister’s diary. Moreover, neither decisions of the Commissioner nor of this Tribunal can be regarded as setting any kind of precedent: they are at best only persuasive.[44]Overall, the panel is not satisfied that the Appellant’s arguments are sufficient for it to conclude that the Commissioner wrongly exercised his discretion. On the contrary, the panel itself concludes that – in light of the additional evidence and arguments provided to it by the Cabinet Office – the issue is less finely balanced than the Commissioner decided it was.

Conclusion

[45]For the above reasons, the panel finds that the Commissioner’s Decision Notice did not involve any error of law nor any wrongful exercise of his discretion within the meaning of s.58 FOIA.[46]Accordingly, this appeal is dismissed.