Jeffrey Dudgeon v The Information Commissioner & Anor [2025] UKFTT 900 (GRC)

[2025] UKFTT 00900 (GRC)Case Reference: FT/EA/2024/0246
First-tier Tribunal
General Regulatory Chamber
Hearing Heard on: 10 March 2025Date 28 July 2025
Information Rights
Heard by Cloud Video Platform
Before
JUDGE STEPHEN ROPERMEMBER JO MURPHYMEMBER MIRIAM SCOTT
Between
JEFFREY DUDGEONAppellantTHE INFORMATION COMMIsSIONERRespondentTHE Foreign, Commonwealth AND Development OfficeRespondentDr Austen Morgan of Counsel for Appellant for First Respondent: did not appear and was not represented for Second Respondent: Mr Jason Pobjoy of Counsel and Mr Tom Watret of CounselDecision: The appeal is DismissedREASONS

Preliminary matters

[1]In this decision, we use the following terms to denote the meanings shown: Additional Emails: The additional emails held by the FCDO relating to the investigation into Mr Pincher, comprising part of the Additional Material. Additional Material: The additional material within the scope of the Request which was identified by the FCDO, referred to in paragraph 15. Appellant: Jeffrey Dudgeon. Commissioner: The Information Commissioner (the First Respondent). Decision Notice: The Decision Notice of the Commissioner dated 24 May 2024, reference IC-280955-F8L4, relating to the Request. DPA: The Data Protection Act 2018. Duty to Disclose: The duty of a public authority to communicate requested information which it holds, pursuant to section 1(1)(b) (set out in paragraph 31). Emails: The internal emails (excluding the Additional Emails) held by the FCDO relating to the investigation into Mr Pincher, falling within the scope of the Request. FCDO: The Foreign, Commonwealth & Development Office (the Second Respondent). FOIA: The Freedom of Information Act 2000. Legitimate Interests Basis: The basis for lawful processing of personal data specified in Article 6(1)(f), as set out in paragraph 42. Legitimate Interests Test: The three-part test for establishing the Legitimate Interests Basis, referred to in paragraph 44. Lord McDonald: Lord McDonald of Salford, formerly the Permanent Under-Secretary of the FCDO. Mr Pincher: Christopher Pincher, the former MP and Minister of State. Public Interest Test: The test, pursuant to section 2(2)(b) (set out in paragraph 34), as to whether, in all the circumstances of the case, the public interest in maintaining the exemption to the Duty to Disclose outweighs the public interest in disclosing the information. Report: The investigative report held by the FCDO into Mr Pincher, falling within the scope of the Request. Request: The request for information made to the FCDO by the Appellant dated 25 July 2022, as set out in paragraph 6. Requested Information: The information which was requested by way of the Request. Terms of Reference: The terms of reference document held by the FCDO relating to the investigation into Mr Pincher, comprising part of the Additional Material. UK GDPR: The General Data Protection Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018. Withheld Information: The Report, the aspects of the Emails and the Additional Emails which were redacted and the Terms of Reference.[2]Unless the context otherwise requires (or as otherwise expressly stated), references in this decision:a. to numbered paragraphs are references to paragraphs of this decision so numbered;b. to any section are references to the applicable section of FOIA;c. to any Article are references to the applicable Article of the UK GDPR;d. to the Commissioner’s investigation mean the Commissioner’s investigation of the Appellant’s complaint, pursuant to section 50, relating to the FCDO’s response to the Request.

Introduction

[3]This was an appeal against the Decision Notice, which (in summary) decided that the FCDO was entitled to rely on section 40(2) (personal information) to withhold the Report but that the FCDO was not entitled to rely on section 36(2)(c) (prejudice to effective conduct of public affairs) to withhold the Emails.[4]We considered whether it was necessary for us to provide a closed decision. We concluded that it would not be necessary, on the basis that the reasoning behind this decision can be sufficiently understood without us needing to refer to the specific details of, or disclose any sensitive aspects of, the material in the closed bundle.

Background to the Appeal

[5]The background to the appeal is as follows. It may also be helpful to explain that the “behaviour” of Mr Pincher referred to in the Request related to certain allegations regarding Mr Pincher, particularly with regard to Lord McDonald’s public allegation (see paragraph 91) that Mr Pincher had exhibited “predatory behaviour” and others, including the then-leader of the opposition, referring to Mr Pincher as being a “sexual predator”. This related to an alleged incident that was the subject of the investigation in question and which resulted in the Report.

The Request

[6]On 25 July 2022, the Appellant contacted the FCDO and requested information in the following terms: “I would like copies of the internal paper work in the FCDO regarding the investigation into the behaviour of Minister of State Christopher Pincher MP and of the subsequent correspondence sent to the Cabinet Office and 10 Downing Street, and any received therefrom in relation to the matter.”.[7]The FCDO responded on 13 July 2023. It confirmed that it held information within the scope of the Request – namely, the Emails and the Report. However, it stated that such information was exempt from disclosure, citing (in respect of the Emails) section 36(2)(c) (prejudice to effective conduct of public affairs) and (in respect of the Report) section 41(1) (information provided in confidence) and section 40(2) (personal information).[8]The Appellant contacted the FCDO on 31 July 2023, requesting an internal review. The FCDO responded on 1 December 2023, upholding its previous decision.[9]The Appellant complained to the Commissioner about the FCDO’s response to the Request and the Commissioner subsequently issued the Decision Notice.

The Decision Notice

[10]In the Decision Notice, the Commissioner concluded (in summary) that:a. the FCDO was entitled to rely on section 40(2) to withhold the Report;b. the FCDO failed to demonstrate that the exemption in section 36(2)(c) was engaged in respect of the Emails;c. the FCDO was accordingly not entitled to rely on that exemption to refuse to disclose the Emails.[11]The Decision Notice therefore required the FCDO to disclose the Emails, save that the FCDO was permitted to redact the names and contact details of junior officials contained in the Emails.[12]The Commissioner also concluded that the FCDO had breached section 17(1), given the delay in responding to the Request. The appeal The grounds of appeal[13]The material aspects of the Appellant’s grounds of appeal were, in essence, that the Commissioner erred:a. in concluding that section 40(2) was engaged in respect of Mr Pincher’s personal data, for various reasons which we refer to from paragraph 67 onwards (referred to below as ‘Ground 1’);b. in failing to consider, properly or at all, the role of Lord McDonald (referred to below as ‘Ground 2’);c. in concluding that the FCDO was correct to redact the names and contact details of junior officials under section 40(2) (referred to below as ‘Ground 3’). Other relevant matters Additional disclosure of Requested Information

Other relevant matters

[14]As we have noted, the Decision Notice required the FCDO to disclose the Emails but permitted redactions to be made in respect of the personal information of junior officials. On 11 October 2024, a redacted version of the Emails was disclosed to the Appellant.[15]Following such disclosure, the FCDO (prompted by an email from the Appellant dated 12 December 2024 which alleged deficiencies in the FCDO’s searches for the Requested Information) identified that it held further information within the scope of the Request. The FCDO explained, in an amended response to the appeal, that such further information consists of:a. a draft of the Terms of Reference for the investigation into Mr Pincher, containing comments from FCDO staff; andb. additional email chains between FCDO and the Cabinet Office relating to that investigation.[16]The FCDO’s position in respect of the Additional Material was that:a. it had carried out reasonable searches at the time of the Request;b. the question of the reasonableness of the searches which it previously undertook was not in issue in the appeal; andc. it was not under any obligation to carry out further searches.[17]The FCDO disclosed the Additional Emails to the Appellant subject to certain redactions but withheld disclosure of the Terms of Reference. The FCDO sought to rely on certain exemptions under FOIA to apply those redactions to the Additional Emails and to withhold disclosure of the Terms of Reference (see paragraph 19).

Reliance on further exemptions

[18]During the course of the appeal proceedings, the FCDO sought to rely on additional exemptions in respect of the Report – namely, the exemptions in section 31(1)(g) (law enforcement) read with section 31(2)(b), section 36(2)(c) (which had also previously been cited and was addressed in the Decision Notice) and section 36(2)(b)(ii). It also reiterated its reliance on the exemptions it had previously cited in response to the Request regarding the Report – namely, section 41(1) and section 40(2).[19]In respect of the Additional Material, the FCDO sought to rely on the following exemptions:a. section 31(1)(g) (read with section 31(2)(b)), in the case of the Terms of Reference;b. section 31(1)(g) (read with section 31(2)(b)), section 40(2) and section 41(1), in the case of the redactions applied to the Additional Emails; andc. section 36(2)(b)(ii) and section 36(2)(c), in the case of the Terms of Reference and the redactions applied to the Additional Emails.

The Tribunal’s powers and role

[20]The powers of the Tribunal in determining this appeal are set out in section 58, as follows: “(1) If on an appeal under section 57 the Tribunal considers—(a) that the notice against which the appeal is brought is not in accordance with the law, or(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal. (2) On such an appeal, the Tribunal may Review any finding of fact on which the notice in question was based.”.[21]In summary, therefore, the Tribunal’s remit for the purposes of this appeal was to consider whether the Decision Notice was in accordance with the law. In reaching its decision, the Tribunal may review any findings of fact on which the Decision Notice was based and the Tribunal may come to a different decision regarding those facts. Essentially, the Tribunal is empowered to undertake a ‘full merits review’ of the appeal before it (so far as the Decision Notice is concerned).

Mode of hearing

[22]The hearing was held by the cloud video platform. The Tribunal Panel, the Appellant, Dr Morgan (for the Appellant), Mr Pobjoy (for the FCDO) and the witness (see paragraph 26) joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way.[23]Whilst the FCDO was represented by Mr Pobjoy and Mr Watret, only Mr Pobjoy advocated on behalf the FCDO during the hearing. The Commissioner did not appear and was not represented.[24]At one point during the hearing, the Judge lost his connection to the video link and approximately 6 minutes passed before he re-connected. The parties and the other members of the Panel had been aware of the lost connection and proceedings were paused pending the Judge re-connecting. When the hearing resumed, it continued from the point when the connection had been lost and the Tribunal was satisfied that nothing had been missed. There were no other interruptions of note during the hearing.

The evidence and submissions

[25]The Tribunal read and took account of an (updated) open bundle of evidence and pleadings, as well as a closed bundle and a bundle of authorities. We also had written skeleton arguments from the parties and some additional supporting documents from the Appellant.[26]The open bundle included two witness statements on behalf of the FCDO. Both witness statements were provided from the same witness, an employee of the Cabinet Office. Their statements were given in their capacity as the Cabinet Office’s Director of Propriety and Ethics. It is not necessary for us to identify this witness by name in this decision - therefore we merely refer to them as “the witness” and we mean no disrespect to them in doing so.[27]The closed bundle contained the Report and the Terms of Reference, as well as unredacted versions of the Emails and the Additional Emails.[28]We heard oral submissions from Dr Morgan on behalf of the Appellant and from Mr Pobjoy on behalf of the FCDO. We also heard oral evidence from the witness.[29]During the hearing, the Tribunal held a closed session (which excluded the Appellant and Dr Morgan). A gist of the closed session, approved by Mr. Pobjoy during it, was provided orally to the Appellant at the resumed open hearing and subsequently a written version of that gist was provided to all the parties.[30]All of the contents of the bundles and the additional documents, as well as the submissions of Dr Morgan and Mr Pobjoy and the witness evidence during the hearing, were taken into account, even if not directly referred to in this decision. The relevant statutory framework General principles

The relevant statutory framework

[31]Section 1(1) provides individuals with a general right of access to information held by public authorities. It provides: “Any person making a request for information to a public authority is entitled—(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and(b) if that is the case, to have that information communicated to him.”.[32]In essence, under section 1(1), a person who has requested information from a public authority is entitled to be informed in writing whether it holds that information. If the public authority does hold the requested information, that person is entitled to have that information communicated to them. However, those entitlements are subject to the other provisions of FOIA, including some exemptions and qualifications which may apply even if the requested information is held by the public authority. Section 1(2) provides: “Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14.”.[33]Accordingly, section 1(1) does not provide an unconditional right to be told whether or not a public authority holds any information, nor an unconditional right of access to any information which a public authority does hold. The rights contained in that section are subject to certain other provisions of FOIA, including section 2.[34]Section 2(2) addresses potential exemptions to the Duty to Disclose. That section provides: “In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that—(a) the information is exempt information by virtue of a provision conferring absolute exemption, or(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”.[35]The effect of the above is that some exemptions which are set out in Part II of FOIA are absolute and some are subject to the Public Interest Test. Section 2(3) explicitly lists which of those exemptions are absolute (and, pursuant to that section, no other exclusions are absolute). For the purposes of the appeal (see paragraph 63), the relevant sections are: section 31, section 36, section 40(2) and section 41(1).[36]Section 36 is included in the list in section 2(3), but only so far as relating to information held by the House of Commons or the House of Lords (which is not applicable for the purposes of the appeal). Section 40(2) is included in that list, so far as relating to cases where the first condition referred to in that section is satisfied. Section 41 is included in that list. Section 31 is not included in that list.[37]Accordingly, in summary:a. the exemption to the Duty to Disclose in section 40(2) is an absolute exemption only in cases where that first condition is satisfied, otherwise the exemption is subject to the Public Interest Test;b. the exemption to the Duty to Disclose in section 41 is an absolute exemption;c. the exemptions to the Duty to Disclose in section 31 and section 36 are subject to the Public Interest Test.

Section 31 – law enforcement

[38]So far as is relevant for the purposes of the appeal, section 31 provides:
“(1) Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice— … (g) the exercise by any public authority of its functions for any of the purposes specified in subsection (2), … (2) The purposes referred to in subsection (1)(g) to (i) are— … (b) the purpose of ascertaining whether any person is responsible for any conduct which is improper”
.

Section 36 - prejudice to effective conduct of public affairs

[39]So far as is relevant for the purposes of the appeal, section 36 provides:
“(1) This section applies to— (a) information which is held by a government department…and is not exempt information by virtue of section 35… (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— … (b) would, or would be likely to, inhibit— … (ii) the free and frank exchange of views for the purposes of deliberation, or (c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs. … (5) In subsections (2) and (3) “qualified person”— (a) in relation to information held by a government department in the charge of a Minister of the Crown, means any Minister of the Crown”
.

Section 40 – personal information

[40]So far as is relevant for the purposes of the appeal, section 40 provides: “…(2) Any information to which a request for information relates is also exempt information if—(a) it constitutes personal data which does not fall within subsection (1), and(b) the first, second or third condition below is satisfied. (3A) The first condition is that the disclosure of the information to a member of the public otherwise than under this Act— (a) would contravene any of the data protection principles…”.[41]Section 40(7) sets out applicable definitions for the purposes of section 40, by reference to other legislation, the applicable parts of which are as follows:a. Section 3(2) of the DPA defines “personal data” as “any information relating to an identified or identifiable living individual”. The “processing” of such information includes “disclosure by transmission, dissemination or otherwise making available” (section 3(4)(d) of the DPA) and so includes disclosure under FOIA.b. The “data protection principles” are those set out in Article 5(1) and section 34(1) of the DPA.c. The first data protection principle, in Article 5(1)(a), is that personal data shall be: “processed lawfully, fairly and in a transparent manner in relation to the data subject”.d. A “data subject” is defined in section 3 of the DPA and means “the identified or identifiable living individual to whom personal data relates”.[42]To be lawful, the processing must meet one of the bases for lawful processing set out in Article 6(1). One such basis is where “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, in particular where the data subject is a child” (Article 6(1)(f)).[43]Article 6(1) goes on to include an exception to the Legitimate Interests Basis, stating that it does not apply to processing carried out by public authorities in the performance of their tasks. However, section 40(8) provides that such exception is to be omitted for the purposes of section 40, meaning that the Legitimate Interests Basis can be taken into account in determining whether the first data protection principle would be contravened by the disclosure of information by a public authority under FOIA.

The Legitimate Interests Test

[44]The Legitimate Interests Basis is the only basis for lawful processing listed in Article 6(1) which contains a built-in balance between the rights of a data subject and the need to process the personal data in question. There is a test which must be undertaken in order to determine whether or not the Legitimate Interests Basis can apply in any relevant scenario. This test involves consideration of three questions, as set out by Lady Hale in the Supreme Court’s judgment in the case of South Lanarkshire FCDO v Scottish Information Commissioner [2013] UKSC 55, paragraph 18 : “(i) Is the data controller or 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?”.[45]The wording of question (iii) is taken from the Data Protection Act 1998, which has been superseded by the DPA and the UK GDPR. Accordingly, that question should now reflect the wording used in the UK GDPR such that the third question should now be:
‘Are those interests overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data?’
. This last limb of the Legitimate Interests Test specifically addresses the balance between the rights of a data subject and the need to process the personal data in question.[46]It may be helpful to make it clear that the relevant test here (the Legitimate Interests Test) is different from the Public Interest Test; the Legitimate Interests Test applies only in respect of the assessment of the lawfulness of processing of personal data for the purposes of the Legitimate Interests Basis.[47]The question in the first limb of the Legitimate Interests Test must be satisfied before the second limb can be considered. Likewise, the question in the second limb of the Legitimate Interests Test must be satisfied before the third limb can be considered.[48]For the purposes of the second limb of the Legitimate Interests Test, case law has established that the term “necessary” means something which is more than desirable but less than indispensable or absolute necessity. Therefore the test is one of “reasonable necessity”. The test of reasonable necessity itself involves the consideration of alternative measures – consequently, the relevant processing of the personal data in question is not necessary if the legitimate interest being pursued could be achieved by something less (so the processing must be the “least restrictive” means of achieving the legitimate interest in question).

Section 41 – information provided in confidence

[49]Section 41(1) provides:
“(1) 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.”
.

Discussion and findings

[50]We first address some preliminary points before turning to the main issues in the appeal.

Reliance on further exemptions

[51]As we have noted, during the appeal proceedings the FCDO sought to rely on exemptions which had not been raised by it during the Commissioner’s investigation. The Appellant questioned the FCDO’s late reliance on new exemptions, as well as the ability of the FCDO to remedy the deficiency which the Commissioner had determined in the Decision Notice regarding the reliance on section 36.[52]Case law has established that a public authority is entitled to rely on new exemptions in an appeal before the First-tier Tribunal. This is so even if those exemptions have not been raised by the public authority at an earlier stage (whether in its response to a request for information under FOIA, any review of that response or in its subsequent dealings with the Commissioner when the Commissioner is investigating a complaint relating to that request).

The ‘burden of proof’

[53]The Commissioner submitted (in his response to the appeal) that the onus was upon the Appellant to demonstrate that the Commissioner’s conclusion, in the Decision Notice, on the application of section 40(2) was an error of law. In other words, the Commissioner considered that the burden of proof was upon the Appellant (although the Commissioner did not make the same point in respect of the Appellant’s other grounds of appeal).[54]The Commissioner provided no legal authority to support that view. Section 58, which we have cited above (paragraph 20), sets out the remit of the Tribunal. Various authorities Including, in particular, Birkett v Department For The Environment, Food and Rural Affairs [2011] EWCA Civ 1606, Information Commissioner v Home Office [2011] UKUT 17 (AAC) and Information Commissioner v Malnick [2018] UKUT 72 (AAC). have confirmed that the Tribunal undertakes a ‘fresh review’ of the FCDO’s response to the Request, exercises a ‘full merits appellate jurisdiction’ and essentially ‘steps into the shoes’ of the Commissioner.[55]In dealing with a complaint pursuant to section 50, the Commissioner does not make a resulting decision on the basis that the complainant or the public authority manages or fails to discharge any purported burden of proof. It is no different for the Tribunal’s decision.[56]Accordingly, the appeal did not involve a question of whether the Appellant has discharged a burden of proof. Our role, rather, was to consider all of the evidence in order to determine whether or not the Decision Notice involved an error of law, in accordance with our powers under section 58. Scope of

The appeal

[57]The Appellant’s written skeleton argument stated that the appeal turned on Lord McDonald’s public role in the resignation of Boris Johnson on 7 July 2022. We disagree with that assessment. The scope of the appeal, as we have referred to (paragraphs 20 and 21) relates to the lawfulness of the Decision Notice. We set out below the relevant issues which were before us in respect of the appeal.[58]Many of the submissions made by the Appellant and Dr Morgan related to the Appellant’s views regarding the alleged role of Lord McDonald in bringing about the downfall of the then-current conservative administration. Primarily, these views related to the Appellant’s opinion that the demise of that administration (ultimately, the resignation of Boris Johnson) came about because Lord McDonald improperly disclosed, as a former senior official, there had been a confidential investigation regarding Mr Pincher. As part of this, the Appellant and Dr Morgan referred to various issues, including some background history, matters regarding constitutional law and the duties of former ministers. Most of those arguments were not relevant to the issues before us.[59]During the appeal proceedings, the Appellant confirmed that the appeal did not extend to issues relating to the adequacy of the FCDO’s searches for the Requested Information. The Appellant accepted that the appeal was focussed only on the Report and the Terms of Reference and he elected not to pursue matters regarding the redactions to the Emails and the Additional Emails.[60]Whilst Mr Pobjoy made certain submissions during the hearing regarding the Emails and the Additional Emails, including stating that (despite the FCDO’s response to the appeal and the contents of the witness statements) the FCDO was not relying on section 36 in respect of the redactions to the Emails and the Additional Emails, he nevertheless accepted that the focus of the appeal related only to the Report and the Terms of Reference.

Other decisions of the Information Commissioner

[61]The Appellant’s skeleton argument referred us to another decision of the Commissioner in a different case involving the Cabinet Officer. Other decisions of the Commissioner are, of course, not binding on us and each such decision turns on its facts in any event. Moreover, the case which the Appellant referred to related to the application of section 42 (legal professional privilege), which was not an issue in the appeal. We have therefore not taken that previous decision into account in our deliberations.

The issues before us

[62]As we have stated:a. the role of the Tribunal was to consider the lawfulness of the Decision Notice whilst also, as part of its ‘fresh review’, taking into account subsequent exemptions which the FCDO sought to rely on;b. the issues in the appeal related only to the FCDO’s withholding of the Report and the Terms of Reference.[63]Accordingly, taking into consideration the Decision Notice, the Appellant’s grounds of appeal and the subsequent submissions of all the parties (including the further exemptions sought to be relied on by the FCDO), the primary issues for the Tribunal to determine were (in summary) whether the FCDO was entitled:a. to rely on any of the following sections to withhold the Report:• section 31(1)(g), read with section 31(2)(b);• section 36(2)(b)(ii);• section 36(2)(c);• section 40(2);• section 41(1);b. to rely on any of the following sections to withhold the Terms of Reference:• section 31(1)(g), read with section 31(2)(b);• section 36(2)(b)(ii);• section 36(2)(c).[64]As the Appellant’s grounds of appeal focussed on the application of the exemption under section 40(2) in the Decision Notice regarding the Report, we deal with that potential exemption first.

Whether section 40(2) was engaged in respect of the Report (Ground 1)

[65]There appeared to be no dispute between the parties that the Withheld Information contains personal data, as defined in section 3(2) of the DPA (see paragraph 41). The Appellant accepted, at least, that the Report contained Mr Pincher’s personal data.[66]In any event, the Appellant’s position was that he was not interested in disclosure of personal data relating to individuals other than Mr Pincher; rather, the Appellant was only concerned about the Report’s findings regarding Mr Pincher.[67]Ground 1 of the Appellant’s grounds of appeal set out various reasons as to why the Appellant considered that the Commissioner had erred in concluding, in the Decision Notice, that section 40(2) was engaged in respect of the Report. We set out below our comments in respect of each of those reasons (with sub-headings in bold which reflect the Appellant’s wording from Ground 1). The Appellant did not materially expand on these points subsequently (including during the hearing) and consequently our comments on some of these reasons are relatively brief. The Commissioner did not exclude Mr Pincher from the consideration of personal data.[68]This ground did not set out the Appellant’s reasons as to why the Commissioner should have excluded Mr Pincher’s personal data from his considerations. The Appellant also did not elaborate on why he felt that this resulted in an error in the Decision Notice. However, we considered that some of the Appellant’s other points in Ground 1 were connected to this ground. The Commissioner did not explain why other individuals could not be identified by cyphers only.[69]Given that the Appellant’s position was that he was not interested in the personal data of individuals other than Mr Pincher, we do not see the relevance of this argument.[70]In any event, we find that the use of cyphers or other anonymisation tools would not be sufficient to avoid identifying any other individuals. Having assessed the contents of the Report, we accept the witness’s evidence (explored in the closed session and summarised in the gist) that attempts at anonymisation would not preclude individuals from being identifiable. We consider, in particular, that the individuals involved would be able to identify the other individuals who were involved, because of their knowledge of events and the nature and extent of the investigation, even if references to all the individuals were sought to be anonymised in some way. As ‘personal data’ includes information relating to an identifiable (as well as an identified) individual, we find that the Report contained the personal data of individuals (in addition to Mr Pincher) and that it would not be possible to sufficiently anonymise or redact such personal data such that there would be no disclosure of that personal data. The Commissioner did not accept that other information could be redacted (for data protection reasons).[71]The Appellant did not elaborate on why he considered that this was an error in law by the Commissioner. However, we considered that this ground related to the preceding point and therefore our comments in that regard apply equally here. The Commissioner did not identify the relevance of special category data for disclosure.[72]The Decision Notice set out (in paragraph 20) that special category data was defined in Article 9 and included matters relating to an individual’s sex life or sexual orientation.[73]The Decision Notice included the Commissioner’s view (in paragraph 22) that certain parts of the Requested Information comprised special category data, referring (in paragraph 21) to arguments put forward by the FCDO regarding the relevant Requested Information including special category data.[74]In his response to the appeal, the Commissioner considered that he was unable to detail why he considered that some of the Withheld Information comprised special category data without revealing the relevant information itself. However, we consider that it is self-evident that the Report, given the subject matter of the investigation (which is public knowledge), would address allegations relevant to Mr Pincher’s sex life and/or sexual orientation and would therefore comprise special category data.[75]Paragraphs 23 to 26 of the Decision Notice addressed the Commissioner’s views and findings with regard to the special category data. The Commissioner did not consider whether disclosing the first complaint would be lawful as an exercise in Ministerial accountability.[76]Supporting information from the Appellant showed that the Appellant’s reference to the ‘first complaint’ meant a complaint to Lord McDonald about Mr Pincher’s conduct in the summer of 2019. The Commissioner acknowledged, in paragraph 36 of the Decision Notice, that there is a legitimate public interest in demonstrating accountability and transparency in the handling of complaints against those who hold Ministerial office. This was therefore taken into account as part of the Commissioner’s assessment of the Legitimate Interests Test. The Commissioner did not consider whether disclosure could be fair to Mr Pincher (who after all remained in his Ministerial post).[77]The Commissioner argued that there was no need for him to consider whether disclosure would also be fair and transparent to any of the relevant data subjects, on the basis that he had already concluded in the Decision Notice that there would be no basis for lawful processing under Article 6(1) and therefore that disclosure of the Report would not be lawful.[78]We take a slightly different view to that of the Commissioner, in that we consider that the concept of the ‘fairness’ of disclosure is not entirely distinct from the concept of the ‘lawfulness’ of disclosure. As set out in paragraph 41, the first data protection principle is that personal data shall be processed lawfully, fairly and in a transparent manner. This therefore encompasses the concepts of lawfulness, fairness and transparency together, as part of the same data protection principle. In our view, if personal data is not being processed lawfully then it follows that it is also not being processed fairly (or transparently). Consequently, we consider that an assessment of the lawfulness of processing of personal data inherently also relates to the fairness (and transparency) of that processing, at least to some extent.[79]In that regard, we also disagree with the FCDO’s submission in its skeleton argument that the “fairness of disclosure to [sic] Mr Pincher played no role in the [Commissioner’s] analysis”. In our view, the personal data of Mr Pincher was taken into account in addition to the consideration of other individuals’ personal data. As we noted in paragraph 76, the Decision Notice took account, as part of the Commissioner’s assessment of the Legitimate Interests Test, matters relevant to the handling of complaints against those who hold Ministerial office – in this case, the relevant office holder being Mr Pincher.[80]Accordingly, in our view there was an intrinsic consideration of fairness (and transparency) when the Commissioner was assessing whether disclosure of Mr Pincher’s personal data would be lawful.[81]In any event, the App did not elaborate on why he considered that the alleged lack of consideration of fairness to Mr Pincher led to there being an error in the Decision Notice. The Commissioner did not consider if disclosure, for the same reason, could be transparent.[82]This argument was unclear to us but it appeared to relate to the earlier point about Ministerial accountability, which we have addressed above. If this argument related to transparency as part of the first data protection principle, then this is also addressed as part of the preceding ground. The Commissioner did consider that Ministerial accountability could be a legitimate interest, and did consider whether disclosure could meet the test of necessity, but conducted a balancing exercise premised on Mr Pincher not wanting disclosure (seemingly an assumption without evidence).[83]In support of this ground, the Appellant cited the case of R (Miller) v Prime Minister [2019] UKSC 31, paragraphs 46-48. . The paragraphs of the case relied on by the Appellant relate to Ministerial accountability to Parliament in the context of a decision to prorogue Parliament. We do not see that it has any relevance to the application or engagement of the relevant sections in FOIA and the matters which we needed to determine in the appeal.[84]As to the Appellant’s point regarding it being an unfounded assumption that Mr Pincher did not want disclosure, the Commissioner’s position was that the Decision Notice correctly identified that the Report contained the personal data of a number of individuals (and not just Mr Pincher). We agree with the Commissioner’s position on that point.[85]Further, we would observe that it is established law that the guiding principle is the protection of the right to privacy with respect to the processing of personal data. See, for example, the comments of Lord Hope of Craighead in the case of Common Services Agency v Scottish Information Commissioner [2008] 1 WLR 1550, at paragraph 7. Accordingly, in that regard, we consider that the Appellant’s argument is misconceived in asserting that it appeared to be an unfounded assumption that Mr Pincher did not want disclosure of his personal data. Given such guiding principle, it would be right that the starting point should be the expectation of privacy, in the absence of any evidence to the contrary. There was no such contrary evidence in this case. Other relevant points[86]Whilst Ground 1 set out the Appellant’s views as to why the Commissioner had erred in concluding that section 40(2) was engaged in respect of the Report (which we have addressed above), the Appellant’s submissions did not further address the main issues relevant to the engagement of that section. Those issues are whether the Commissioner was correct to conclude, in the Decision Notice:(a) that the Report contained personal data of individuals other than the Appellant (as the person making the Request); and(b) that the first condition (in section 40(3A)) was satisfied. The latter point involves consideration as to whether the Commissioner was correct to conclude, in the Decision Notice, that the Legitimate Interests Basis was the appropriate lawful basis for processing and that, on applying the Legitimate Interests Test, disclosure of the personal data contained in the Report would not be lawful.[87]As we have noted, the Appellant did not materially address those issues – his arguments regarding section 40(2) being limited to the points we have addressed above in Ground 1. In short, most of the material legal issues identified by the Commissioner in the Decision Notice were not challenged by the Appellant in the appeal.[88]For completeness, we make the following findings:a. the Report contained the personal data of Mr Pincher and other individuals;b. the Report did not include the personal data of the Appellant and consequently the requirement of section 40(2)(a) was met;c. the first condition in section 40(3A) was satisfied. This is on the basis that the Legitimate Interests Basis was the appropriate lawful basis for processing (no other lawful basis being applicable on the facts of the case) and that disclosure of the personal data contained in the Report would not be lawful, after consideration of the Legitimate Interests Test, for the same reasons as given by the Commissioner in the Decision Notice. A particular additional observation we would make, regarding the personal data of individuals other than Mr Pincher, is that those involved were given assurances that the Report would remain confidential and we accept the witness’s evidence in that regard (explored in the closed session and summarised in the gist).[89]For all of the reasons we have given, we find that the Decision Notice was correct in determining that the FCDO could withhold the Report pursuant to section 40(2).

Other potential exemptions in respect of the Report

[90]Given our finding that the Report can be withheld, in its entirety, it is not necessary for us to go on to consider other potential exemptions.

Ground 2

[91]As we have noted, Ground 2 related to the Appellant’s view that the Commissioner erred in failing to consider, properly or at all, the role of Lord McDonald. Ground 2 referred to the role of Lord McDonald in writing to the parliamentary commissioner for standards on 5 July 2022 (and publishing the letter on the same day) and appearing on the Radio 4 Today programme. The letter (and appearance on the Radio 4 Today programme) referred to complaints about Mr Pincher’s behaviour and included Lord McDonald’s view that Mr Pincher engaged in “predatory behaviour”.[92]We understood the Appellant’s arguments to be that because Lord McDonald had disclosed confidential information regarding Mr Pincher, the Commissioner should have taken that disclosure into account in his assessment of the engagement of section 40(2). The Appellant’s arguments appeared to be that because Lord McDonald had made public his views about Mr Pincher’s behaviour, this should have been a factor favouring disclosure of the Report.[93]The Appellant (and Dr Morgan during the hearing) referred to the actions of Lord McDonald in some detail, with reference to his duties as a former permanent under-secretary and his alleged misuse of official information by his public comments regarding Mr Pincher, as well as the Appellant’s allegations as to the political motivations of Lord McDonald in doing so. The Appellant referred to the use and abuse of official information by Lord McDonald as being “legally significant”.[94]The Appellant, however, provided no relevant authority to show that purported ‘legal significance’ to the matters which were the subject of the appeal. In a similar vein to the submissions of the Commissioner and FCDO, we do not understand the relevance of the Appellant’s arguments regarding Ground 2. The Appellant did not explain how any failure of the Commissioner to take into account the ‘role of Lord McDonald’ meant that there was any error in the Decision Notice regarding the engagement of section 40(2).[95]We would also observe that, whilst Article 9(2)(e) permits the processing of special category data which are manifestly made public by the data subject, there was no evidence before us that Mr Pincher had himself make public any of his special category data.[96]Accordingly, we do not see that Ground 2 has identified any error of law in the Decision Notice.

Ground 3

[97]As we have noted, the Appellant accepted that the appeal was focussed only on the Report and the Terms of Reference and he elected not to pursue matters regarding the redactions to the Emails and the Additional Emails. Consequently, Ground 3 was no longer in issue and we make no further comments regarding it.[98]We turn now to address the exemptions relied on by the FCDO in withholding the Terms of Reference.

(b) , was engaged in respect of the Terms of Reference

[99]We start by briefly mentioning section 30 (investigations and proceedings conducted by public authorities). This is relevant because it is precursor to the engagement of section 31(1)(g), in that such section can only be engaged if section 30 is itself not engaged: as set out in paragraph 38, section 31 refers to a potential exemption for information “which is not exempt information by virtue of section 30”.[100]No party challenged that section 30 was not engaged. However, for completeness, we find that section 30 is not engaged in respect of any of the Withheld Information. This is essentially because:(a) we concluded, based on our assessment of the Withheld Information, that it would not fall within section 30, which (in essence) is related to investigations relating to possible crimes, criminal proceedings or civil proceedings;(b) we also had no other evidence or submissions to support a conclusion that section 30 was engaged.[101]Turning to the exemption under section 31(1)(g), it may be helpful to summarise the wording from that section (as read with section 31(2)(b)). It essentially provides that information is exempt from the Duty to Disclose if its disclosure would, or would be likely to, prejudice a public authority’s functions for the purpose of ascertaining whether any person is responsible for any improper conduct.[102]The exemption under section 31(1) uses the terms ‘would’ and ‘would be likely to’ prejudice any of the relevant matters referred to. This means that the prejudice in question is more probable than not, or that there is a real and significant risk of it happening.[103]For such exemption to apply, there must be some causative link between the potential disclosure of the relevant information and the prejudice in question. The prejudice must also be real, actual or of substance and it must relate to the interests protected by the exemption.[104]The witness explained in their first written statement that the Cabinet Office (not the FCDO) was entrusted, pursuant to the Ministerial Code in force at the relevant time, with the duty to investigate alleged breaches of the Ministerial Code when requested to do so by the Prime Minister. This was the basis on which the investigation into Mr Pincher occurred, resulting in the Terms of Reference and the Report. The FCDO’s position was, therefore, that the relevant function and purpose was that referred to in section 31(2)(b) – namely, the Cabinet Office’s function for the purpose of ascertaining whether any person is responsible for any conduct which is improper.[105]The witness explained in their second written statement that terms of reference are prepared at the outset of a proposed investigation in order to establish the nature, scope and process which will be followed by the Cabinet Office’s Propriety and Ethics Team. The witness stated that terms of reference were important in Cabinet Office investigations because they set out the nature, scope and process of the relevant investigation. They also stated that the Terms of Reference is a draft of the terms of reference applicable to the investigation into Mr Pincher, containing comments from a staff member of the FCDO.[106]The witness also explained that the investigation into Mr Pincher was highly sensitive and confidential and the Terms of Reference were likewise confidential, as were discussions between the Cabinet Office investigator and the FCDO regarding the nature, scope and process of the investigation.[107]The witness gave evidence to the effect that disclosure of the Terms of Reference would prejudice the Cabinet Office’s function and purpose in carrying out relevant investigations, on the basis that (in summary):a. the Cabinet Office requires a safe space to formulate the nature, scope and process of highly sensitive and confidential investigations such as that relating to Mr Pincher;b. disclosure of the Terms of Reference would reveal how those highly sensitive and confidential discussions were carried out and how terms of reference are formulated;c. concerns that such discussions would subsequently be made public under FOIA would therefore jeopardise the ability of Cabinet Office investigators and others to discuss openly and freely how a particular investigation should proceed;d. disclosure of the Terms of Reference would erode the trust in any assurances of confidentiality given in similar investigations in the future, which may make people less willing to be involved (either as investigators or complainants) or to speak freely, in what are often highly sensitive situations.[108]We find that disclosure of the Terms of Reference would be likely to prejudice the Cabinet Office’s functions in respect of ascertaining whether any person is responsible for any improper conduct, for largely the same reasons given by the witness. We consider, in particular, that because assurances of confidentiality had been provided regarding the investigation into Mr Pincher and individuals have participated or provided input into that investigation based on such assurances, then it would undermine trust regarding any such future assurances and this would be likely to have the effect which the witness referred to. Our findings on the assurances given regarding confidentiality are based on the witness evidence, as well as our own assessment of the Terms of Reference and other aspects of the Withheld Information.[109]For those reasons, we find that section 31(1)(g), read with section 31(2)(b), is engaged in respect of the Terms of Reference.[110]Turning to the associated Public Interest Test, we find that there is a strong public interest in the Terms of Reference being kept confidential, given the assurances of confidentiality which were provided. We also consider that there is a strong public interest in ensuring that such assurances of confidentiality are upheld. A further factor favouring maintaining the exemption relates to concerns we have outlined about the potential impact that disclosure would have on future investigations by the Cabinet Office’s Propriety and Ethics Team and we consider that it is in public interest that such investigations are not hampered by disclosure of the Terms of Reference, on the facts of this particular case.[111]In respect of factors favouring disclosure of the Terms of Reference, we consider that there is public interest in transparency and accountability, including with regard to assurances that allegations of impropriety of Ministers are investigated. However, we find that there is little weight to be afforded to these factors, as there is public knowledge of the existence of the investigation, its subject matter and its outcome.[112]Accordingly, considering all of the circumstances, we find that the public interest in maintaining the exemption to the Duty to Disclose outweighs the public interest in disclosing the Terms of Reference.[113]For the above reasons, we therefore find that the FCDO is entitled to rely on section 31(1)(g), read with section 31(2)(b), to withhold the Terms of Reference.

Other potential exemptions in respect of the Terms of Reference

[114]Given our finding that the Terms of Reference can be withheld, in their entirety, it is not necessary for us to go on to consider other potential exemptions.

Other matters – section 17(1)

[115]As we have noted:a. the Request was dated 25 July 2022;b. the FCDO only responded to the Request on 13 July 2023;c. the Commissioner therefore determined in the Decision Notice that the FCDO had breached section 17(1).[116]Section 17(1) places a duty on a public authority to issue a refusal notice explaining why it has refused a request for information, within a specified time which is set out in section 10(1). Pursuant to section 10(1), the time limit is no later than 20 working days following the date of receipt of the request for information.[117]Given the FCDO’s delay in responding to the Request, we agree with the conclusion of the Commissioner that the FCDO breached section 17(1).

Final conclusions

[118]For all of the reasons we have given, we find that:a. the Decision Notice was correct to conclude that that the FCDO could withhold the Report pursuant to section 40(2);b. the Decision Notice was also correct in concluding that the FCDO had breached section 17(1); andc. the FCDO is entitled to rely on section 31(1)(g), read with section 31(2)(b), to withhold the Terms of Reference.[119]We therefore dismiss the appeal.