Dr Robert James Abrahart v The Information Commissioner & Anor [2026] UKFTT 1221 (GRC)

[2026] UKFTT 01221 (GRC)Case Reference: FT/EA/2025/0265
First-tier Tribunal
(General Regulatory Chamber)
Hearing Heard on: 26 May 2026Date 25 August 2026
Information Rights
Heard by Cloud Video Platform
Before
JUDGE SAWARDTRIBUNAL MEMBER SCOTTTRIBUNAL MEMBER SHAW
Between
Dr. ROBERT JAMES ABRAHARTAppellantTHE INFORMATION COMMISSIONERRespondentDEPARTMENT FOR EDUCATIONRespondentIn person (unrepresented) for Appellant for First Respondent: Did not attend for Second Respondent: Laura Shepherd, CounselDecision: The appeal is Dismissed.REASONS

Introduction

[1]The Freedom of Information Act 2000 (“FOIA”) provides for a general right of access to information held by public authorities. That right is subject to exceptions and exemptions. It makes provision for its enforcement by the Information Commissioner (“the Commissioner”) and for a right of appeal from a decision of the Commissioner to the General Regulatory Chamber of the First-tier Tribunal (“the Tribunal”).[2]The Appellant has appealed against three separate decisions of the Commissioner. All concern requests for information made by the Appellant to the Department for Education (“DfE”). The appeals were heard together on two consecutive days, but they have not been consolidated. The appeals bearing Tribunal references FT/EA/2024/0247 and 0294 are subject to separate decisions.[3]This appeal bearing reference 0265 is made against a Decision Notice dated 24 June 2025 (“the Decision Notice”) concerning the Appellant’s request for information made to the DfE on 13 August 2024 (“the Request”).[4]All our reasons are set out within this singe, open decision.[5]The Request The Request of 13 August 2024 relates to tragic incidents where students in higher education have taken their own lives. For context, ‘The LEARN Network’ is a campaign group of bereaved families who launched a petition for the Government to introduce a statutory, legal duty of care in higher education settings. The petition was debated in Parliament on 5 June 2023.[6]The Request refers to an earlier request made by a different requester for “… all emails, sent or received by 2 DfE officials, related to the response to the parliamentary petition calling for the creation of a statutory duty of care in higher education.”[7]The Request was made to the DfE in the terms below (as redacted in the Decision Notice to remove details identifying the person who made the earlier request):
“I’m writing to request copies of the email records that were withheld from [previous requester’s name] on May 2nd, 2024, under reference [redacted]. I know this might seem like a duplicate request, so I wanted to explain why I am asking. I’m not trying to cause any issues or be difficult. I’m getting genuinely puzzled as to why redacted versions of these records weren’t provided in the first instance, and I’d like to understand this better. Additionally, I’m considering filing a complaint with the Information Commissioner’s Office, and to do that properly, I need to request the same information and, if applicable, be denied it. This will help me demonstrate that my request was handled in a similar manner, which is important for my complaint.”
[8]On 7 September 2024, the Appellant told the DfE:
“If specifying individual email accounts is likely to identify individuals; please adjust the scope of my request to cover all staff in each of the two Higher Education Policy Teams involved.”
Refusal of

The Request

[9]The DfE refused the Request on 9 October 2024 citing section 35 (formulation of government policy), section 40(2) (personal information) and section 42 (legal professional privilege). After the Appellant requested an internal review, the DfE maintained its position on the exemptions in its response of 3 December 2024. The DfE clarified that section 40(2) had been applied to withhold individual’s names and contact details throughout.[10]On 14 December 2024, the Appellant complained to the Commissioner who allocated the reference IC-351147-K5B2. The Appellant disagreed that the information was exempt in its entirety based on the aforementioned sections of FOIA. However, the complaint only challenged reliance on section 40(2) to the extent that it may have been applied to withhold personal data of Senior Civil Servants.

The Decision Notice

[11]The Decision Notice In the Decision Notice of 24 June 2025, the Commissioner decided that the DfE did not apply section 40(2) FOIA to withhold a senior civil servant’s personal data. The found that the DfE was entitled to rely on sections 35 and 42 FOIA to withhold the remaining information. There was no failure by DfE in the duty to provide advice and assistance under section 16 FOIA. No steps were required to be taken as a result of the Decision Notice.[12]During the Commissioner’s investigation, the DfE conceded that section 35 had been applied too widely, and on 9 June 2025, it disclosed redacted copies of email correspondence previously withheld.[13]The Decision Notice clarifies that such information has not been omitted by the DfE in error but was judged by DfE to be exempt.[14]It is recorded that the Government’s response to the petition referenced above was that a statutory duty is unnecessary because a common law duty already exists.[15]The Commissioner’s reasons in relation to section 35 FOIA opines that the formulation of government policy relates to the early stages of the policy process. It covers the period of time in which options are collated, risks are identified, and consultation occurs whereby recommendations and submissions are presented to a minister. The Commissioner says that development of government policy goes beyond this stage to improving or altering existing policy such as monitoring, reviewing or analysing the effects of the policy.[16]The DfE had said that section 35(1)(a) is engaged because the requested information relates to the development of government policy on mental health in higher education. The DfE had provided supporting submissions ‘in confidence’ to show that it is a current area of government policy development.[17]The Commissioner was satisfied that the process does relate to the development of government policy because the Government was considering its position on whether the existing ‘general duty of care’ should be changed. The withheld information shows the consideration of options regarding Government policy, and so section 35(1)(a) FOIA was engaged.[18]In relation to section 42, the Commissioner identifies the purpose of legal professional privilege (“LPP”) as protecting a person’s ability to speak freely and frankly with their legal adviser in order to obtain appropriate legal advice. It recognises that a person needs to lay all the facts before their adviser so that the weaknesses and strengths of a position can be properly assessed.[19]The DfE had told the Commissioner that the withheld information comprised communications between the DfE’s Legal Adviser’s Office lawyers and their client, being DfE Policy officials. The Commissioner was satisfied the requirement was met for communications being between a qualified lawyer acting in their professional capacity and a client. Having reviewed the withheld information, the Commissioner was satisfied it was legal advice attracting LPP.[20]In applying the public interest test to each exemption, the Commissioner considered arguments for and against disclosure. It is unnecessary for the purposes of this appeal to set out those arguments.[21]In terms of section 40(2) FOIA, the Commissioner received confirmation from the DfE that all of the withheld information related to officials below the level of Deputy Director and did not therefore have an ‘outward facing’ role. The Commissioner said that he consulted the DfE’s published list of senior staff and found no matching names or job titles within the withheld information. The Commissioner did not consider the complaint on this point further.[22]The DfE had, in the Commissioner’s view, provided adequate explanations of the application of the exemptions in its refusal notice, and the DfE addressed the Appellant’s request on why section 40(2) had been considered in its internal review response.

Grounds of Appeal

[23]Grounds of Appeal The Appellant’s notice of appeal dated 16 July 2025 raises the following grounds of appeal (in summary): 23.1. The Request was made in good faith for access to non-exempt portions of withheld emails. The Appellant explicitly sought redacted copies, being the standard and expected method of compliance under FOIA. 23.2. The Commissioner merely reiterates the DfE’s position. He incorrectly treats the complaint as a conventional challenge to exemptions. He fails to engage with the actual complaint that the DfE has not complied with its duty to consider partial disclosure. 23.3. The Appellant does not dispute the application of specific exemptions per se but does dispute DfE’s refusal to release disclosable material by standard redaction. 23.4. There was a serious procedural failing by not assessing whether a proper redaction exercise had been carried out and did not explain why structural elements (e.g. metadata, subject lines, sender/recipient details) were withheld in full. 23.5. It is unclear why a meaningful explanation of DfE’s approach was not required. 23.6. Public authorities cannot withhold entire records unless every part of the record is genuinely and independently exempt. The Decision Notice fails to apply this fundamental principle. 23.7. The Decision Notice fails to assess whether the DfE complied with its duty to review records for partial disclosure.[24]The outcome sought by the Appellant is to quash the Decision Notice and for the Tribunal to require the DfE to carry out a proper, line-by-line review of the withheld emails and attachments.

Commissioner’s Response

[25]Commissioner’s Response The Commissioner has opposed the appeal and adopts the findings in his Decision Notice. He adds that all the withheld information was viewed and confirmed not to have been omitted in error. It was exempt from disclosure. DfE was entitled to rely upon sections 35, 42 and 40(2).

DfE’s Response

[26]DfE’s Response The DfE’s response opposed the appeal. In summary: 26.1. The purpose of section 35(1)(a) is to protect the effective, efficient, and high-quality formulation and development of government policy and good government. It reserves a safe space to consider policy options in private (Department for Education and Skills v Information Commissioner[2007] 2 WLUK 470 and Department of Health and Social Care v Information Commissioner [2020] UKUT 299 (AAC), [2020] 10 WLUK617). 26.2. Balancing the competing public interests in disclosure and non-disclosure is a mixed question of law and fact, not the exercise of a discretion (Information Commissioner v Malnick[2018] UKUT 72 (AAC)). 26.3. The ICO must consider that, where there is a decision to disclose, this could have a “chilling effect” on the development of government policy. 26.4. It is possible for there to be part-disclosure of a document where some parts of the document fall within the exemption, and others fall outside of it (or, alternatively, where the public interest balance lies in part-disclosure of a redacted document). See Busby v ICO[2023] UKFTT 305 (GRC). 26.5. There is no doubt the exemption in section 35 is engaged. The question is the balancing exercise carried out by the Commissioner. The DfE submits that the Commissioner got the balance right. 26.6. DfE acknowledges there is general public interest in disclosure where it leads to greater transparency, greater public contribution, and better understanding of the way Government works. 26.7. DfE submits that this benefit is outweighed by the ‘chilling effect’ of disclosure. It is vital that there is space for policy officials to have policy development discussions in a free, frank and open discission. 26.8. Disclosure of information not intended for public release would compromise the ability of officials to engage in free and frank discissions necessary to deliver policy in an effective manner. 26.9. The Higher Education Mental Health Taskforce is the vehicle for developing policy in this area. All its minutes and papers are published on gov.uk. There is clear public interest in maintaining the safe space for officials to develop ideas and engage in free and open debate. 26.10. In terms of section 42, the withheld information is contained within a number of email chains where:(i) civil servants at DfE sought legal advice from a lawyer within the Government Legal Department(ii) the lawyer provided the requested advice. It is plainly privileged in its entirety. 26.11. Once it is established the Request is subject to legal advice privilege, there is an “in-built public interest in non-disclosure” which “carries significant weight” and “will always have to be considered in the balancing exercise” (Department for Business, Enterprise and Regulatory Reform v O’Brien[2009] EWHC 164 (QB) at [41]). 26.12. This reflects that: (i) government departments need full and candid legal advice for the effective conduct of their business; (ii) the effective provision of legal advice is reliant on lawyers receiving full and candid instructions from their clients; and(iii) there is a risk that clients will in future be less full and/or candid in their instructions, and/or that lawyers will be less full and/or candid in their advice, if legal advice privilege is overridden. 26.13. The public interest in maintaining the exemption is especially strong because the withheld information is contained within communications that are recent. Disclosure of DfE’s own legal advice is not required to facilitate public debate on the policy question raised by the petition. 26.14. Where personal data appears in withheld information, the exemption is absolute. DfE was entitled to rely on section 40(2) FOIA. 26.15. The documents are withheld in their entirety because the exemptions apply. Providing the documents even in redacted form will impinge on the safe space of policymaking and/or lead to the disclosure of legal advice which would override LPP. 26.16. Redaction would either result in the exemptions being disregarded or the Appellant would receive so little information (e.g. times and dates of an email without the content) that disclosure would not satisfy the Request. 26.17. Nowhere does the Appellant take issue with the balancing exercise carried out by the Commissioner. 26.18. In Department for Business, Enterprise and Regulatory Reform v IC & O’Brien[EA/2007/0072], the First-tier Tribunal confirmed that a public authority is not confined to the exemptions relied upon in its dealings with the Commissioner. 26.19. Due to the nature and number of requests received by the Appellant, including the extent of overlap, the DfE considers that the high threshold for vexatiousness in section 14(1) is met. The Appellant is not rude or abusive; his emails are always civil. The requests themselves are vexatious as they are large in volume, overlap, and disrupt DfE’s activities by tying the department up in responding to so many overlapping requests. 26.20. The request refused by DfE on 2 May 2024 was exempt from disclosure. The request of 13 August 2024 is substantially similar to requests already responded to on 2 May 2024 and 7 April 2024. The DfE considers that section 14(2) is made out.

Appellant’s reply

[27]In reply to both Respondents, the Appellant makes the following points: 27.1. The appeal is not limited to whether the Commissioner misunderstood the scope of the Request. It goes further. The appeal not only challenges the Commissioner’s treatment of scope, but also his findings on sections 35, 40 and 42, DfE’s new reliance on section 14 (introduced for the first time in these proceedings), and fairness of the process by which the Decision Notice was reached. 27.2. Sections 14(1) and 14(2) were not cited in the Decision Notice. The Request was made days after DfE’s “reset letter” of 12 August 2024 applying section 14(1) to earlier requests. Earlier requests were expressly closed by the “reset”, and later requests are outside the scope of this appeal. 27.3. It is misleading for DfE to state that the Appellant has made “at least 30” FOIA requests. 27.4. Section 35 only applies where there is active process of policy formulation or development. The burden lies on DfE to demonstrate that such a process existed at the date of the Request. 27.5. The Request was explicitly concerned with the petition calling for a statutory legal duty of care in higher education. The policy door closed at the petition debate in June 2023 when the Minister confirmed no statutory duty of care would be pursued. 27.6. DfE conflates reliance on the Taskforce and other mental health initiatives. Voluntary wellbeing programmes are not the same as a statutory duty of care and cannot be cited as ‘active’ policy development. The Commissioner’s own guidance on section 35 stresses the requirement of a ‘live’ policy process. Section 35 was misapplied. 27.7. It is wrong in law that the section 40 exemption is absolute wherever personal data is present. It requires a data protection principle assessment. It is accepted that names and personal identifiers of junior officials may be redacted under section 40(2). The same principle does not apply to senior public-facing officials acting in an official capacity. Generic team mailboxes are not personal data. 27.8. It is undisputed that section 42 applies to genuine legal advice. It does not extend to all communications simply because lawyers are copied in. It does not apply to administrative or policy updates. DfE makes no attempt to distinguish the two. 27.9. DfE has conflated different requesters. Section 14(2) does not apply to different requesters. It applies only to repeat requests by the same person. 27.10. Section 14(1) was not raised by DfE at the time of the Request. It has been raised for the first time in the DfE’s Response of 29 August 2025. Requesters are entitled to rely on the exemptions actually cited in the original refusal. Numbers alone cannot justify vexatiousness. The DfE’s table lists requests with hyperlinks – this is not evidence. DfE processed some requests normally, relied on section 14(2) for others without ever invoking section 14(1). 27.11. It is submitted that the DfE’s failure to disclose the “reset letter” and related correspondence in reliance upon section 14 falls below the duty of candour in Tribunal proceedings.

Legal Framework

[28]Section 1 FOIA provides a right of access to recorded information held by public authorities. It provides: Section 1(1) FOIA: General right of access to information held by public authorities(1) Any person making a request for information to a public authority is entitled— (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him. Section 2 FOIA: Effect of the exemptions in Part II …(2) 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…’[29]The right in section 1(1) is subject to several exemptions, one of which is section 35. Section 35 FOIA: Formulation of government policy, etc.(1) Information held by a government department… is exempt information if it relates to— (a) the formulation or development of government policy, …(2) Once a decision as to government policy has been taken, any statistical information used to provide an informed background to the taking of the decision is not to be regarded— (a) for the purposes of subsection (1)(a), as relating to the formulation or development of government policy, or (b)…(3) …(4) in making any determination required by section 2(1)(b) or (2)(b) in relation to information which is exempt information by virtue of subsection (1)(a), regard shall be had to the particular public interest in the disclosure of factual information which has been used, or is intended to be used, to provide an informed background to decision-taking.[30]Another exemption raised by the Respondents in this appeal, is section 42. Section 42 FOIA: Legal professional privilege.(1) Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information.(2) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) in respect of which such a claim could be maintained in legal proceedings.[31]Both sections 35 and 42 are qualified exemptions, subject to the public interest test in section 2(2) FOIA. Therefore, if either exemption is found to be engaged, the Tribunal must go on to consider whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information.[32]The final exemption relied upon by DfE, which was raised for the first time during these proceedings, is section 14 FOIA. DfE relies upon both subsections, as below. Section 14 FOIA:Vexatious or repeated requests (1) Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious. (2). Where a public authority has previously complied with a request for information which was made by any person, it is not obliged to comply with a subsequent identical or substantially similar request from that person unless a reasonable interval has elapsed between compliance with the previous request and the making of the current request.

Public Interest Test

[33]In All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner [2013] UKUT 0560 (AAC) (“APPGER”) the Upper Tribunal gave helpful guidance on how the balancing exercise required by section 2(2)(b) of FOIA is carried out: “… when assessing competing public interests under [… FOIA] the correct approach is to identify the actual harm or prejudice that the proposed disclosure would (or would be likely to or may) cause and the actual benefits its disclosure would (or would be likely to or may) confer or promote. [75] Such an approach requires an appropriately detailed identification of, proof, explanation and examination of both(a) the harm or prejudice, and(b) benefits that the proposed disclosure of the relevant material in respect of which the [exemption] is claimed would (or would be likely to or may) cause or promote. Plainly that includes an identification of the relevant material and the circumstances in which it was provided to or obtained by the body claiming the [exemption]” [76]

Role of the Tribunal

[34]The role of the Tribunal is governed by section 58 FOIA. This requires the Tribunal to consider whether the Commissioner’s Decision Notice is in accordance with the law, or, where the Commissioner’s decision involved an exercise of discretion, whether he should have exercised it differently. The Tribunal may review any finding of fact on which the Decision Notice was based (section 58(2)). This means that we may review all the evidence provided to us (even if that evidence was not before the Commissioner) and make our own decision on the merits.[35]As set out by the Upper Tribunal in NHS England -v- Information Commissioner and Dean [2019] UKUT 145 (ACC) "The First-tier Tribunal ‘exercises a full merits appellate jurisdiction and so stands in the shoes of the IC and decides which (if any) exemptions apply...". It does not mean that we can consider matters falling outside the scope of the Request.

The Issues

[36]The Issues The main issue for the Tribunal to decide in this appeal is whether the Commissioner was wrong to decide the request for information was exempt from disclosure under sections 35 and 42 of FOIA or whether the Commissioner ought to have exercised any use of discretion differently.[37]In determining this, the key considerations are:• Does the exempt information relate to the formulation or development of government policy?• Was the withheld information covered by legal professional privilege?• If either section 35 or section 42 FOIA is engaged, does the public interest in maintaining the exemption outweigh the public interest in disclosing the information?[38]During this appeal the DfE has also raised arguments pursuant to section 14 FOIA. Given that the Tribunal is tasked with establishing whether or not the Decision Notice is in accordance with the law, we will only go on to consider section 14 FOIA in the event that neither section 35 nor section 42 is made out.

The Hearing

[39]The Hearing The hearing was conducted by online video (CVP). The Tribunal was satisfied this was a fair and just way to conduct the proceedings. All proceedings at the hearing were conducted in open session.[40]The Appellant appeared and was unrepresented. The DfE was represented by Counsel. To address the imbalance, the Tribunal afforded the Appellant considerable leeway in his questioning of the DfE’s witness and gave him direction when matters strayed off point.[41]The Commissioner notified the Tribunal in advance that he did not intend to appear or be represented at the hearing. He relies instead upon his Decision Notice and response to the appeal. In reaching our conclusions on the grounds of appeal, the Tribunal has considered all the written material including that relied upon by the Commissioner, as well as the oral evidence and submissions from the hearing.[42]The Tribunal had before it an OPEN bundle of around 1029 pages and CLOSED bundle consisting of the withheld information. A gist of the CLOSED material was provided in the following terms:
“1. The withheld material comprises correspondence and briefing documents held by the Department for Education concerning the Government's consideration of issues arising from campaigns and petitions relating to duties owed by higher education institutions in relation to student welfare and mental health. Material withheld under s.35(1)(a) FOIA. 2. In broad terms, the material consists of developing views, stakeholder engagement, ministerial briefing and consideration of potential approaches during an ongoing policy process, including; a. Internal communications between officials concerning the development of advice and briefing for Ministers regarding the LEARN Network petition and related issues; b. Communications between departmental officials and external stakeholders, including the Higher Education Student Support Champion and representatives from the higher education sector, concerning engagement with campaign groups and possible approaches to addressing concerns raised; c. Briefing materials and associated discussions concerning possible policy responses, including consideration of alternatives to a statutory duty of care; d. Internal discussions concerning preparation of responses to the petition and related communications. Material withheld under s.42 FOIA 3. The material withheld under section 42 consists of confidential communications between DfE officials and departmental legal advisers relating to legal questions arising from the issues above. In broad terms, these communications include requests for legal advice and the provision of legal guidance concerning the legal framework surrounding duties owed by higher education institutions. The withheld material forms part of ongoing lawyer client communications for the purpose of seeking and obtaining legal advice. Material withheld under s.40 FOIA 4. The material withheld under section 40 consists of personal data contained within the correspondence, including names and contact details.”
Material withheld under s.42 FOIA

Material withheld under s.40 FOIA

[43]With the consent of the Tribunal, the Appellant produced a Supplementary bundle of 7 pages. This comprises a refusal notice from the DfE dated 31 December 2025 sent to another requester and the DfE’s outcome letter of 2 February 2026 following their request for an internal review. Both documents are produced in relation to the section 14 exemption raised by DfE.[44]For all three appeals, an ‘Authorities bundle’ of 653 pages was provided. The Appellant added one extra legal authority, namely Dr Yeong-Ah So v IC and Imperial College London [2016] UKUT 0249 (AAC). The Appellant provided a skeleton argument. The DfE provided an OPEN and CLOSED skeleton argument.[45]Prior to the hearing, the Tribunal gave permission to the DfE to substitute Elizabeth Franey as a witness in place of Caroline Bicknell at the hearing of these appeals due to the retirement of Ms Bicknell who had provided a witness statement. With the consent of the Tribunal a redacted witness statement was submitted by Ms Franey. The redactions concern updates on other appeals brought by the Appellant, which do not shed light on DfE’s refusal of the Request. Those matters do not assist the Tribunal in its decision in this appeal.

Evidence heard

[46]Evidence heard We do not seek to capture all additional points made orally at the hearing, it being impractical and unnecessary to do so.

Appellant’s evidence

[47]Appellant’s evidence By way of summary, the Appellant made the following additional points: 47.1. The Request concerned a small, finite, and already identified dataset. It specifically sought redacted versions. The DfE identified the relevant material as:(a) 2 email chains and 1 associated attachment withheld under section 35;(b) 5 email chains withheld under section 42; and(c) 1 email chain withheld under both sections 35 and 42. 47.2. The DfE had previously disclosed some information in redacted form, which demonstrated a mixed character of dataset. It is important that section 35(4) recognises the public interest in the disclosure of information. The Appellant finds it difficult to reconcile DfE’s position with the requirements of section 35(4). 47.3. The Appellant described the “blurring together” of initiatives with policy. He submits that both Respondents failed to properly distinguish between: (a) broader higher education wellbeing initiatives; and (b) the narrower policy issue concerning legal duty and responsibility in negligence within higher education. The relevant policy concerned the Government’s position regarding the legal duty of care owed by higher education providers to students. There is some ongoing policy on wellbeing services, but the policy was made in 2023. 47.4. There is no ongoing policy development on the common-law duty of care in negligence. The Appellant would be delighted if there was. 47.5. The Appellant does not challenge the withholding of genuinely privileged material under section 42 FOIA. The Request covers non-privileged material. The later partial disclosure demonstrated that the dataset was not properly treated throughout as a single indivisible exempt category.

DfE’s oral evidence

[48]Whilst not the author, Ms Franey confirmed that the witness statement of Ms Bicknell is true to the best of her knowledge and belief. Ms Franey had not personally dealt with this particular Request.[49]Under cross-examination, Ms Franey confirmed that there was no suggestion that the Appellant had made the two previous requests for information of 12 February 2023 as far as she is aware the DfE did not have a request asking for the same information form the Appellant. The DfE did have a request from the Appellant’s co-campaigner. Ms Franey accepted they are not the same person.

Closing Submissions

[50]Closing Submissions In closing submissions, Ms Shepherd for DfE identified section 14(1) FOIA as the main issue and section 14(2) in the alternative. The Appellant similarly focussed upon section 14. We disagree that section 14 is the main issue, as already stated.

Discussion and Conclusions

[51]Discussion and Conclusions Very little was said by the parties during the hearing on the application of sections 35 and 42 FOIA. Their focus turned instead to section 14. This was surprising as the Commissioner’s decision relied upon sections 35 and 42 only. With the DfE and Appellant seemingly consumed by section 14, the Tribunal was not particularly assisted on matters pertaining to sections 35 and 42.[52]During the Commissioner’s investigation the DfE conceded that it had applied section 35 too widely to the requested information and it made a fresh disclosure of email correspondence in redacted form on 9 June 2025. It continued to withhold personal data and information it considered to be exempt under section 35. The Appellant considered that information was missing, including attachments. The Commissioner established that the information was not omitted in error but deliberately withheld by DfE as exempt.[53]The Appellant is critical of the Respondents for failing to conduct a line-by-line assessment of the “remaining withheld non-privileged material” to determine whether further severance and redaction is possible. The Tribunal has carefully considered the CLOSED material against the exemptions in section 35, 40(2) and 42.

Section 35

[54]Section 35 Within the open bundle is a redacted copy of the DfE’s letter to the Commissioner dated 13 May 2025 containing its views on the application of the exemptions. The Tribunal has referred to passages within this letter insofar as they are open and shared with the Appellant. We have, of course, considered the letter in full within the CLOSED bundle.[55]Section 35 FOIA is a class-based exemption. This means that there is no requirement for any prejudice to be established to any formulation and development of government policy for the exemption to apply.[56]As described by the DfE at paragraph 14 of its letter of 13 May 2025, the information in scope of the Request constitutes email exchanges between DfE officials and Higher Education sector partners, discussing possible changes to policy.[57]The DfE maintains that section 35(1)(a) is engaged because the requested information “directly relates to the development of government policies relating to an HE duty of care”. The Commissioner adopted this position. The Appellant considers that the DfE and Commissioner have conflated broader higher educational wellbeing initiatives with the narrower policy issue of the Government’s position on the legal duty of care owed by higher education providers to students. The Tribunal has conducted its own assessment of whether section 35 applies to the withheld information. Before addressing that, we start with points of interpretation and application.[58]Under section 35(1)(a), information held by a government department is exempt if it ‘relates to’ the formulation or development of government policy. We concur with the Commissioner that ‘formulation’ broadly refers to the design of new policy whereas ‘development’ is the process of reviewing or improving existing policy.[59]The Court of Appeal in Department of Health v Information Commissioner and Lewis [2017] EWCA Civ 374 said in relation to the words ‘relates to’ that “the phrase should not be read with uncritical liberalism as extending to the furthest stretch of its indeterminacy but instead should be read in a more limited sense so as to provide an intelligible boundary, suitable to the statutory context. In addition, “a merely incidental connection between the information and a matter specified in a sub-paragraph of section 35(1) would not bring the exemption into play; it is the content of the information that must relate to the matter specified in the sub-paragraph.”[60]Upon consideration of the withheld information, the Tribunal is clear that it does relate to the development of government policy because the Government was considering whether to make changes for a statutory duty of care. Whether the policy-making process is still ‘live’ is an issue that goes to the assessment of the public interest balancing test, and not to whether the section 35(1)(a) exemption is engaged in the first place (Morland v Cabinet Office[2018] UKUT 67 (AAC)).[61]The Tribunal finds that section 35 is engaged with regard to the relevant withheld information on which reliance on that section is placed. That is not the end of the matter. We must go on to consider the public interest test.

Public interest test – section 35

[62]Public interest test – section 35 Section 2(2)(b) FOIA requires the Tribunal to conduct a balancing exercise weighing the factors in favour of maintaining the exemption against the public interest factors that favour disclosure. In applying the public interest test under section 2(2)(b) in relation to information which is exempt by virtue of subsection 35(1)(a), section 35(4) requires that regard shall be had to the particular public interest in the disclosure of factual information which has been used, or is intended to be used, to provide an informed background to decision-taking.[63]The Tribunal must consider the public interest as matters stood at the time of the decision which the public authority was obliged to make by Part I of FOIA (as per paragraph 86 of Montague v Information Commissioner and DIT [2022] UKUT 104 (AAC)). As DfE refused the Request on 9 October 2024, that is the date when the public interest must be assessed. However, the Tribunal may properly take into account circumstances or matters that come to light subsequently where they shed light on the public interest at the time it falls to be considered.[64]In DBERR v O’Brien v IC[2009] EWHC 164 QB the High Court, at paragraph [58] found much to commend the approach to the application of the public interest test by the Tribunal systematically;(a) identifying the public interest factors in favour of disclosing the particular information;(b) identifying the public interest factors which favour maintaining the particular exemption; and then(c) analysing whether the latter interests outweigh the former. We adopt this approach.[65]The factors we have identified in favour of disclosure are:(a) the high public interest shown in a sensitive subject matter that had attracted wide media attention and resulted in Parliamentary debate.(b) the clear public interest in knowing what measures the Government was considering to support student mental health in the higher education sector.(c) the promotion of openness and transparency about the process of decision-making, that may lead to greater accountability, and improved standard of public debate and improved trust.(d) enhancing public understanding of the position taken by Government and improving public trust and confidence.[66]The factors we have identified against disclosure are:(a) the need for policy officials and partners to be able to conduct discussions on the development of policy without concern of disclosure that could lead to potential misunderstanding due to the lack of context.(b) undermining of the ‘safe space’ needed for effective policy formulation and development.(c) the risk of an ongoing ‘chilling effect’ on officials’ ability to consider a range of options to address concerns in this area where there is a risk that such discussions will be disclosed.(d) the potential prevention of officials and partners being able to critically engage with the serious and important relevant issues due to the sensitivity of the subject matter.[67]In identifying these issues, the Tribunal notes the following passages from the DfE’s letter of 13 May 2025:
“19….The review of policy and legal options, and the development of our policy allows us to access, and at times challenge, the professional expertise and input from key officials and stakeholders, whilst formulating a final policy position. 20. The withheld information shows the active consideration by policy officials and external partners, of potential changes to this policy. To release such exchanges, and briefings provided by external experts, which would not necessarily reflect the final position subsequently agreed with senior officials and ministers, would be likely to have a negative impact on the continued consideration and development of this policy. 21. Officials and ministers must have the space to consider and be able to commission a wide range of advice, expertise and evidence that will test and help formulate and improve government policy. In accordance with this, we consider that good government depends on good decision-making and this needs to be based on the ability to consider, and even reconsider, within a safe space, the development and delivery of effective policies.”
[68]Paragraph 29 of the witness statement made on 27 October 2025 by Caroline Bicknell, Deputy Director at the DfE, at the time, says:
“DfE understands that there is public interest in the development of policy in this area, given the significant tragedies that have occurred. However, DfE considers that policy officials and partners must be able to conduct discussions on the development of policy in this area without concern that such discussions may be disclosed (and potentially misunderstood by members of the public due to lack of complete context). DfE’s position is that disclosure of the withheld information would undermine the safe space needed for effective policy formulation and development. DfE also considers that there would be an ongoing chilling effect on officials’ ability to consider a range of options to address concerns in this area where there is a risk that such discussions will be disclosed. Disclosure of the withheld information would have the potential to prevent officials and partners being able to critically engage with the serious and important relevant issues, due to the sensitivity of the subject matter, and would have the potential to result in a broader chilling effect on future discussions of this nature. DfE considers it appropriate to continue to withhold the information under s35(1).”
[69]The Tribunal notes that Ms Bicknell held a senior role within DfE to give the views expressed.[70]The Upper Tribunal in Department of Health v IC and Lewis [2015] UKUT 0159 (AAC) considered ‘safe space’ and ‘chilling effect’ arguments and said this:
“the argument cannot be founded on an expectation that the relevant communication will not be so disclosed. It follows that if he is properly informed, a person taking part in the discussions will appreciate that the greater the public interest in the disclosure of confidential, candid, and frank exchanges, the more likely it is they will be disclosed.”
[71]In relation to chilling effect arguments, the Tribunal is further assisted by the following paragraph [26] from the Upper Tribunal’s decision in Davies v IC and the Cabinet Office[2019] UKUT 185 (AAC):
“26. … A three judge panel of the Upper Tribunal expressed a similar view in DEFRA v Information Commissioner and Badger Trust [2014] UKUT 526 (AC) at [75], when concluding that it was not satisfied that disclosure would inhibit important discussions at a senior level: “75. We are not persuaded that persons of the calibre required to add value to decision making of the type involved in this case by having robust discussions would be inhibited by the prospect of disclosure when the public interest balance came down in favour of it... 76. ..They and other organisations engage with, or must be assumed to have engaged with, public authorities in the full knowledge that Parliament has passed the FOIA and the Secretary of State has made the EIR. Participants in such boards cannot expect to be able to bend the rules.”
[72]The above authorities do not mean that a ‘chilling effect’ or ‘safe space’ argument can never succeed. It is for the public authority to provide evidence of the facts and circumstances to support the claim that disclosure of information relating to past policy making will or might impinge on current or future discussions.[73]To give this further consideration, it is appropriate to consider at this juncture whether, at the relevant time, the policy was ‘live’. Disclosure of discussions of policy options whilst policy is in the process of development or formulation, is highly unlikely to be in the public interest. Exceptions could, for instance, be if disclosure would expose wrongdoing within government.[74]The scope of the Request relates back to an earlier request made by another requester for all emails sent or received by two DfE officials related to the response to the parliamentary petition calling for the creation of a statutory duty of care in higher education.[75]The Tribunal notes that redacted copies of some emails have been disclosed where they concern administrative matters only. The Appellant’s interest obviously lies in matters of substance. In the simplest of terms, the Appellant says that the requested information concerns policy formulation taking place around 2022/2023 on the issue of a legal duty of care owed by higher education providers to students. The Appellant says that progression of the policy ended after the Parliamentary debate on 5 June 2023, as confirmed subsequently by Baroness Smith (see below). The argument that follows is that the policy was therefore no longer ‘live’.[76]From what has been disclosed to him, the Appellant refers to the “mixed character of dataset” from which it is claimed the Respondents have conflated the requested information related to specific policy development with other well-being initiatives. We do not agree that is the case.[77]The letter to the Appellant from the Rt Hon Baroness Smith of Malvern, the then Minister of State for Skills, of 23 September 2024 stated that:
“One of my first actions as a new minister was asking Professor Peck to reconvene the [HE Mental Health] Taskforce, so that it can continue its vital work to transform mental health support in universities.”
The Minister went on to say that “[Professor Peck] tells me the focus of the Taskforce was shaped by the lived experiences of bereaved parents. That is why it is important the job is finished, and the Taskforce intends to publish its second stage report in November. I have full faith in the Taskforce to produce meaningful changes to the lives of students. To give my close personal oversight to its work, I will be speaking regularly with Professor Peck to discuss its work and attending the December meeting to speak directly to its members.”[78]The Minister also referred to her commitment to ensuring that the voices of the bereaved parents are heard and that she would be speaking directly to The Learn Network later in the year.[79]In a further letter to the Appellant dated 9 June 2025, Baroness Smith wrote “I recognise that you believe legislating for a duty of care in respect of HE providers is the key to addressing certain issues in HE. However, I have made clear that I do not agree that imposing a statutory duty of care on HE providers would be an effective way of addressing these. These concerns are being addressed through the work of the Higher Education Mental Health Implementation Taskforce.” [emphasis added][80]The 9 June 2025 letter made clear that the Government did not intend to legislate for a duty of care. It did not say that policy development on the core issue of student suicide in higher education was at an end. On the contrary, it was confirmed that the Appellant’s concerns over a ‘duty of care’ were being addressed through the Taskforce.[81]We appreciate that the Appellant seeks to distinguish the role of the Taskforce (as largely focussed on preventative interventions in mental health) from policy development for “a clear legal framework to address root causes”, as he put it in his reply to Baroness Smith of 25 September 2024. However, Tribunal accepts that the Taskforce was one measure demonstrating ongoing development of Government policy, with Ministerial oversight. We further note that Appellant was in continued dialogue with the Higher Education Briefing Team in October 2024 on legal accountability of higher education institutions. The Appellant was not receiving the answers he wanted on legislative changes, but the picture is one of ongoing policy development in the wider context of mental health in higher education of which the withheld information formed part.[82]From careful analysis of the withheld information, and the arguments put by all parties, the Tribunal is satisfied that it would be too narrow an interpretation to conclude that the policy development ended following the Parliamentary debate and by the time the Request was decided by DfE. Whilst the Request seeks specific information on the response to the Parliamentary petition, the Tribunal accepts that the requested information formed part of what was ongoing policy development on student mental health in higher education.[83]In reaching this view, we take account of the following paragraphs in the DfE’s letter of 13 May 2025, which are supportive of the policy formulation not being at an end:
“35. The department’s clear focus is the development of this policy and the development and provision of an effective and considered response with any associated announcement following the petition’s conclusion. As we developed our thinking around responding to the petition and the development of the associated policy, any exchanges between officials ultimately remain as an evidence base that subsequently shapes the review of the policies that the department is committed to delivering. This provides background to a framework in which reviews of this policy are likely to be framed in the future. 36. To release the withheld exchanges is likely to have a prejudicial impact on the development of this and other policies, as release could influence the behaviours, reactions and responses of the key stakeholders affected by the policy, particularly students, their families and the wider HE sector. 37. This is a high-profile policy area, and it is essential that all evidence, professional opinions and findings, past and present, relating to the policy, its delivery and the department’s position can be considered freely and frankly within a safe space, ahead of, and during, considerations and discussions taking place, when considering further changes to this and any associated policy areas.”
[84]The factors in favour of disclosure are undoubtedly important and carry significant weight. Weighed against that is our finding that, at the relevant date in October 2024, the development and formulation of Government policy remained ongoing on the issue on student mental health in higher education from which the issue of a legal duty of care cannot be divorced. In these circumstances there was a well-founded basis for concern over the ‘chilling effect’ of disclosure whilst discussion on that policy matter continued. We accept that it is probable that disclosure of the withheld information would have been severely detrimental to the progression of ongoing policy, and this carries substantial weight. We are not swayed by the generic point over the need for ‘safe space’, but this does not alter our aforementioned findings.[85]Having weighed up all the factors advanced for and against disclosure under section 35, the Tribunal is satisfied in all the circumstances of this case, that the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

Section 42

[86]Section 42 There are two types of legal professional privilege (also referred to as “LPP”), being litigation privilege and legal advice privilege. Legal advice privilege covers confidential communications between lawyer and client for the purpose of giving or receiving legal advice or related legal assistance. Litigation privilege covers documents brought into being for the dominant purpose of litigation. The privilege extends to evidence of the content of those communications or documents. In this case the DfE claims the withheld information is subject to legal advice privilege.[87]In considering this exemption, we have taken into account the judgment in Three Rivers District Council and others (Respondents) v Governor and Company of the Bank of England (Appellants) [2004] UKHL 48, where the House of Lords considered LPP in detail. This case explained that there are three requirements for material to be covered by legal professional advice privilege, as follows:(i) The material must be between a qualified lawyer acting in their professional capacity and a client;(ii) It must be created with the sole or dominant purpose of obtaining or providing legal advice;(iii) It must be confidential.[88]The information withheld under section 42 is within a number of email chains in which civil servants at DfE sought legal advice from a lawyer within the Government Legal Department (“GLD”). After reviewing each document, we are satisfied that section 42 is engaged for the reason that follow.[89]‘Legal advice’ is not limited to telling the client the law; it includes advice as to what should “prudently and sensibly be done in the relevant legal context” (Balabel v Air India [1988] Ch. 317 CA, at [330]). Moreover, “there will be a continuum of communication and meetings between the solicitor and client ... Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach.”[90]The Court in Balabel went on to say (as cited in R (Jet2.com Ltd) v Civil Aviation Authority [2020] EWCA Civ 35 at [63]:[91]Having reviewed the material within the CLOSED bundle to which section 42 was applied, we are fully satisfied that the withheld information is legal advice on a matter reasonably requiring the professional skills and knowledge of a lawyer. It was provided by a qualified lawyer from GLD acting in a professional capacity to a client. Legal advice/guidance was sought and given on the legal framework and its application surrounding duties owed by higher educational establishments. It is plain that the sole or dominant purpose was to obtain and provide legal advice and guidance in an ongoing lawyer/client relationship. Requirements (i) and (ii) are met. In terms of requirement (iii), there are different types of confidentiality.[92]The nature and scope of the equitable duty of confidentiality was identified in the judgment of Coco v A N Clark (Engineers)Ltd [1969] RPC 41, as a three-fold test:(1) the information itself must have the necessary quality of confidence about it(2) that information must have been imparted in circumstances importing an obligation of confidence, and(3) there must be an unauthorised use of that information to the detriment of the party communicating it. This third limb of the test is relevant if trying to determine if there is an actionable breach of confidence. It is not directly relevant here. The first and second limbs obviously are relevant.[93]Advice does not need to be explicitly marked as ‘confidential’. Confidentiality may be implied. When public officials seek legal advice there will be a relationship with an embedded expectation of confidentiality. The DfE confirmed that the advice is not already in the public domain. We are satisfied that the third criterion of confidentiality was met and that the withheld information was subject to legal professional privilege within the exemption at section 42 FOIA.

Public interest test

[94]Public interest test Section 42 FOIA is a qualified exemption from disclosure as it is not listed as an absolute exemption in section 2(3). It is therefore subject to the public interest test under section 2(2)(b) FOIA. This means that the mere fact that legal professional privilege applies does not suffice to justify non-disclosure. In addition to demonstrating that the requested information falls within the definition of the exemption, there must be consideration of the public interest arguments for and against disclosure to demonstrate that the public interest rests in maintaining the exemption or disclosing the information.[95]In applying the public interest test in section 42 FOIA cases, the High Court in DBERR (cited above)gave the following important guidance:- “[41].… it is for the public authority to demonstrate on the balance of probability that the scales weigh in favour of the information being withheld. That is as true of a case in which section 42 is being considered as it is in relation to a case which involves consideration of any other qualified exemption under FOIA . Section 42 cases are different simply because the in-built public interest in non-disclosure itself carries significant weight which will always have to be considered in the balancing exercise once it is established that legal professional privilege attaches to the document in question.” “[53]….The in-built public interest in withholding information to which legal professional privilege applies is acknowledged to command significant weight. Accordingly, the proper approach for the Tribunal was to acknowledge and give effect to the significant weight to be afforded to the exemption in any event; ascertain whether there were particular or further factors in the instant case which pointed to non-disclosure and then consider whether the features supporting disclosure (including the underlying public interests which favoured disclosure) were of equal weight at the very least.”[96]The above approach has since been applied by the Upper Tribunal in Savic v Information Commissioner [2016] UKUT 534 (AAC) at [31].[97]The factors identified by the Tribunal in favour of disclosure are:(a) the high public interest shown in a sensitive subject matter that has attracted wide media attention and resulted in Parliamentary debate.(b) the clear public interest in knowing what measures the Government is considering to support student mental health in the higher education sector, and interest in whether a public authority is acting lawfully.(c) promotion of openness and transparency about the process of decision-making, that may lead to greater accountability, and improved standard of public debate and improved trust.(d) enhancing public understanding of the position taken by Government and improving public trust and confidence.[98]Factors in favour of maintaining the exemption are:(a) legal professional privilege is a long-standing and fundamental principle of justice. It safeguards the right of clients to speak freely and frankly with their legal adviser to obtain appropriate legal advice in confidence so they can take informed decisions on the application of the law.(b) the importance of public officials being able to consult lawyers in confidence to obtain effective legal advice and to explore the legal parameters of issues, without fear of intrusion or disclosure, for the sake of reaching the right answer and acting lawfully.(c) legal advisers need to be able to set out arguments for and against a particular line without fear of exposing weaknesses in the Government’s position.(d) disclosure of legal advice has high potential to prejudice the public authority’s ability to defend its legal interests, whether by exposing its legal position to challenge or by diminishing the reliance that officials can place on securing legal advice.[99]We note that the DfE says that it has already disclosed as much information as it can and has clearly set out its view on what the current legal position is. It has responded to a number of Parliamentary Questions and believes it is meeting its transparency obligations. This is unlikely to be much comfort to the Appellant and co-campaigners who wish to see the legal advice to be satisfied of the lawfulness of the position taken.[100]Having reviewed thewithheld information within the CLOSED bundle, there was clear public benefit and thus significant weight in favour of disclosure of the legal advice. On the other hand, there is a strong presumption against disclosure of legally privileged information, which carries significant weight. The harm to the DfE from disclosure could be severe by prejudicing their position in relation to any related legal proceedings. The ramifications are potentially wide not least if officials are unable to obtain full and frank advice for fear of intrusion or disclosure. These factors attract significant weight.[101]In undertaking the balancing exercise, the scales start empty and are level. There is a strong public interest in non-disclosure in-built into legal professional privilege. At least equally strong countervailing considerations are required to override the inherent public interest in clients being able to consult with their lawyers without fear of intrusion.[102]As set out inR v Derby Magistrates' Court, ex p. B [1995] UKHL 18 [at 58] the principle in play is that “a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.”[103]The Tribunal acknowledges and gives effect to the significant weight to be afforded to the exemption. The factors we have identified in favour of the maintaining the exemption are of a general character as is invariably the case. That does not diminish in any way the weight or significance to be attributed to those factors. On balance The Tribunal is not satisfied that clear, compelling, and specific justification has been shown for disclosure so as to be of at least equivalent weight to the obvious strong interest in protecting communications between lawyer and client, and which the client properly supposes to be confidential.[104]Having weighed up all the factors advanced for and against disclosure under section 42, the Tribunal is satisfied in all the circumstances of this case, that the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

Section 40

[105]Section 40 The Appellant challenges whether further information can be disclosed that has been withheld under section 40, consisting of personal data within correspondence, including names and contact details.[106]Section 40 FOIA concerns personal information. Subsection 40(2) provides an exemption from disclosure of personal data subject to fulfilment of three conditions. Firstly, that the disclosure of the information to a member of the public would contravene any of the data protection principles (section 40(3A)). Secondly, that the disclosure of the information to a member of the public would contravene Article 21 of the UK GDPR (general processing: right to object to processing) (section 40(3B)). Thirdly, that on a request under Article 15(1) of the GDPR for access to personal data, the information would be withheld in reliance on provision made by or under section 15, 16 or 26 of, or Schedule 2, 3 or 4 to, the Data Protection Act 2018 (section 40(4A).[107]Section 3(2) of the Data Protection Act 2018 (“DPA”) defines “personal data” as “any information relating to an identified or identifiable living individual”. The “processing” of such information would include disclosure under FOIA.[108]The data protection principles are those set out in Article 5(1) of the UK General Data Protection Regulation (“UK GDPR”), and section 34(1) DPA. The first data protection principle under Article 5(1)(a) UK GDPR is that personal data shall be:
“processed lawfully, fairly and in a transparent manner in relation to the data subject”
. To be lawful, the processing must meet one of the conditions for lawful processing listed in Article 6(1) UK GDPR. These include where “the data subject has given consent to the processing of his or her personal data for one or more specific purposes” (Article 6(1)(a)).[109]The balancing of interests test under Article 6(1)(f) involves consideration of three questions (as set out by Lady Hale DP in South Lanarkshire Council v Scottish Information Commissioner [2013] UKSC 55):(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?[110]We do not consider there is any legitimate interest in email addresses or telephone numbers. We can accept that there is a legitimate interest in the identity, such as names and job titles of individuals (other than junior employees) involved in the subject matter of the Request. We further accept that employees in more senior roles cannot have a reasonable expectation of privacy in relation to their names and job titles in such a work context. That information would not be exempt under section 40(2) insofar as it is within scope of the Request. However, the Commissioner has confirmed that there is no material falling within that category which has not already been divulged. We have no reason to come to a contrary view.

Section 14

[111]Section 14 Having reached the above findings, we do not go on to consider whether the Request was vexatious or repetitive within section 14(1) and (2), it being unnecessary to do so. Section 14 was not relied upon by the Commissioner in reaching the decision under appeal. Whilst we are not confined in our considerations to the exemptions identified in the Decision Notice, our focus is on whether the Decision Notice was in accordance with the law. We are satisfied that it was. That position would not be altered by reaching a view on section 14 in this case.

Overall Conclusion

[112]Overall Conclusion We find that the Decision Notice is in accordance with the law, and the appeal must be dismissed. Examples of different types) Quash Decision Notice IC-384903-D6V9 IC-401829-R1Z6, Signed: Judge Saward Date: 17 August 2026