“copies of all correspondence, or records of oral conversations, between ACOBA and Tony Blair/Mr Blair’s representatives, in the period from July 2005 to July 2009.”
“(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. (2) Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14.”
“2.— Effect of the exemptions in Part II (1) Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either— (a) the provision confers absolute exemption, or (b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information, section 1(1)(a) does not apply. (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— [2018] AACR 29 (IC v EM and ACOBA) (Three-Judge Panel) 5 (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. (3) For the purposes of this section, the following provisions of Part II (and no others) are to be regarded as conferring absolute exemption— (a) section 21, (b) section 23, (c) section 32, (d) section 34, (e) section 36 so far as relating to information held by the House of Commons or the House of Lords, (ea) in section 37, paragraphs (a) to (ab) of subsection (1), and subsection (2) so far as relating to those paragraphs,] (f) in section 40— (i) subsection (1), and (ii) subsection (2) so far as relating to cases where the first condition referred to in that subsection is satisfied by virtue of subsection (3)(a)(i) or (b) of that section, (g) section 41, and (h) section 44.”
“36.— Prejudice to effective conduct of public affairs. (1) This section applies to — (a) information which is held by a government department ... and is not exempt information by virtue of section 35, and (b) information which is held by any other public authority. (2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act — (a) ... (b) would, or would be likely to, inhibit— (i) the free and frank provision of advice, or [2018] AACR 29 (IC v EM and ACOBA) (Three-Judge Panel) 6 (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” — (o) in relation to information held by any public authority not falling within any of paragraphs (a) to (n), means— (iii) any officer or employee of the public authority who is authorised for the purposes of this section by a Minister of the Crown.”
“17.— Refusal of request. (1) A public authority which, in relation to any request for information, is to any extent relying on a claim that any provision of Part II relating to the duty to confirm or deny is relevant to the request or on a claim that information is exempt information must, within the time for complying with section 1(1), give the applicant a notice which— (a) states that fact, (b) specifies the exemption in question, and (c) states (if that would not otherwise be apparent) why the exemption applies. ... (3) A public authority which, in relation to any request for information, is to any extent relying on a claim that subsection (1)(b) or (2)(b) of section 2 applies must, either in the notice under subsection (1) or in a separate notice given within such time as is reasonable in the circumstances, state the reasons for claiming— (a) that, in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the authority holds the information, or (b) that, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. ... (7) A notice under subsection (1), (3) or (5) must— [2018] AACR 29 (IC v EM and ACOBA) (Three-Judge Panel) 7 (a) contain particulars of any procedure provided by the public authority for dealing with complaints about the handling of requests for information or state that the authority does not provide such a procedure, and (b) contain particulars of the right conferred by section 50. ... 50.— Application for decision by Commissioner. (1) Any person (in this section referred to as “the complainant”) may apply to the Commissioner for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part 1. (2) On receiving an application under this section, the Commissioner shall make a decision unless it appears to him— (a) that the complainant has not exhausted any complaints procedure which is provided by the public authority in conformity with the code of practice under section 45, (b) that there has been undue delay in making the application, (c) that the application is frivolous or vexatious, or (d) that the application has been withdrawn or abandoned. (3) Where the Commissioner has received an application under this section, he shall either— (a) notify the complainant that he has not made any decision under this section as a result of the application and of his grounds for not doing so, or (b) serve notice of his decision (in this Act referred to as a “decision notice”) on the complainant and the public authority. (4) Where the Commissioner decides that a public authority— (a) has failed to communicate information, or to provide confirmation or denial, in a case where it is required to do so by section 1(1), or (b) has failed to comply with any of the requirements of sections 11 and 17, the decision notice must specify the steps which must be taken by the authority for complying with that requirement and the period within which they must be taken. (5) A decision notice must contain particulars of the right of appeal conferred by section 57. ... [2018] AACR 29 (IC v EM and ACOBA) (Three-Judge Panel) 8 57.— Appeal against notice served under Part IV (1) Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice. ... 58.— Determination of appeals. (1) If on an appeal under section 57 the Tribunal considers— (a) that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised 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.”
“40. It is plain from this exchange that an important element in the workings of ACOBA is the belief of ex-Ministers and others that, if they do not engage appropriately with ACOBA, then they face “the court of public opinion”
“Q7 Chair: How much is the credibility of ACOBA and the process you oversee one of the main challenges you face? Baroness Browning: It is a very big challenge. Chair: But you did not mention it in your first answer. Baroness Browning: No, I did not because, frankly, I see it as an almost indigenous challenge that is with us all of the time. We have been subject in the [2018] AACR 29 (IC v EM and ACOBA) (Three-Judge Panel) 10 last year to quite considerable press coverage, not just the committee but also many of the individuals who have applied to us in the last year or so, and that has created some quite negative publicity. What I think is interesting about it is that despite that coverage there have been very few examples found of people who have failed to apply to ACOBA in the appropriate way to seek our advice, nor have they found any significant areas where applicants have then flouted the rules or the advice that they were given. Q8 Chair: Why is the credibility of ACOBA such a big challenge? Baroness Browning: I suspect because there is a public view across the piece not just of ACOBA, but of people who have held public office going on and doing other things. There has been an awful lot of focus on the amount of money that people earn when they leave office, and all of that is part of the lack of confidence that I think the public has in probity in public life overall. ... Q13 Paul Flynn: Right, but doesn’t this go to the heart of the futility of the body, that you are not a watchdog; you are a pussycat without teeth or claws? If Mr Davey says, “Fine, I will be a good boy. I shan’t use my insider knowledge,” what can you do about it? Baroness Browning: We have to work within the rules we are given, as you will know. Paul Flynn: So what can you do about it? Baroness Browning: I think one of the main influences once we have given our advice, is that if somebody breaks that advice or flouts it, the press pick it up and publish it. I think the reputation— Q14 Paul Flynn: How would you know that he has flouted your advice? He is not going to advertise his relationship with these four customers. Baroness Browning: We would not. We have neither the resources, nor the remit to— Paul Flynn: How would the press know? Baroness Browning: Well, that I do not know. They would presumably engage in some— Paul Flynn: But you are— Baroness Browning: Can I just answer the previous question? Paul Flynn: Yes. Baroness Browning: They would engage in some form of investigative journalism, which is something that we follow with great interest because we are very keen to see, but we have no remit or no resources to police the advice that we give. That is our remit. If you are saying that we should be given that [2018] AACR 29 (IC v EM and ACOBA) (Three-Judge Panel) 11 resource and that remit, it is obviously a matter that we would take very seriously.”
“It is clearly important that appropriate consideration should be given to the opinion of the qualified person at some point in the process of balancing competing public interests under section 36. No doubt the weight which is given to this consideration will reflect the tribunal’s own assessment of the matters to which the opinion relates.”
“14. In light of this material we consider the following observations are justified concerning the nature of the tribunal’s appellate jurisdiction: (1) The tribunal’s task is not a judicial review of the Commissioner’s decision on the principles that would be followed by the Administrative Court in carrying out a judicial review of a decision by a public authority (contrast the jurisdiction relating to national security certificates under section 60(3), which is expressly on a judicial review basis). The statutory jurisdiction under section 58 is substantially wider. [2018] AACR 29 (IC v EM and ACOBA) (Three-Judge Panel) 16 (2) The tribunal does not start with a blank sheet. The starting point is the Commissioner’s notice. But analogy with the Court of Appeal is not apt. The Court of Appeal only hears fresh evidence in special circumstances. By contrast, subject to limited exceptions, the tribunal is required to receive relevant evidence, documents and information from the parties to the appeal, and the material is not limited to that which was available to the Commissioner. (3) In considering whether the Commissioner’s notice is in accordance with the law, the tribunal must consider whether (in the present context) the provisions of FOIA have been correctly applied. The tribunal is not bound by the Commissioner’s views or findings but will arrive at its own view. In doing so it will give such weight to the Commissioner’s views and findings as it thinks fit in the particular circumstances. (4) In some cases the correct application of the provisions of the Act will depend upon the findings of fact. Where facts are in dispute, the tribunal may review any finding of fact by the Commissioner. The tribunal will reach its conclusions on the factual issues upon the whole of the material which is properly before it on the appeal. Having decided the factual issues, the tribunal must consider the correct application of the provisions of the Act to the facts as found. It is therefore possible that in some cases the tribunal will consider that the Commissioner’s notice is not in accordance with the law, not because of any error of legal reasoning in the notice, but because the tribunal, having received evidence at the appeal hearing, makes findings of fact which are different from those made by the Commissioner. (5) In some cases the dispute on appeal will be on the public interest test in s 2(2)(b), namely, whether the public interest in maintaining a qualified exemption outweighs the public interest in disclosing the information. Adjudging the balance of public interest involves a question of mixed law and fact, not the exercise of discretion by the Commissioner. If, based either on the Commissioner’s original findings of fact or on findings made by the tribunal on fresh evidence, the tribunal comes to a different conclusion from the Commissioner concerning the balance of public interest, that will involve a finding that the Commissioner’s notice was not in accordance with the law and should be corrected. (6) The combination of the power to review findings of fact and the duty under the rules to receive evidence on the appeal does not predetermine the extent of the tribunal’s review of the facts. This will depend upon the circumstances of the case. If in a particular case no fresh evidence is adduced, or the tribunal considers that the fresh evidence is not of material significance, the tribunal will proceed on the basis of the facts found by the Commissioner. (7) While it is not necessary for the purposes of the present case to consider the situation where the notice involved an exercise of discretion by the Commissioner, we incline to the view that in such a case the tribunal must form its own view on how the discretion ought to have been exercised. Review of the merits of the Commissioner’s exercise of discretion is assisted by the presence of lay members on the tribunal. Again, the tribunal’s [2018] AACR 29 (IC v EM and ACOBA) (Three-Judge Panel) 17 decision may be affected by findings of fact which differ from those made by the Commissioner.”
“54. The first condition for the application of the exemption is not the Commissioner’s or the Tribunal’s opinion on the likelihood of inhibition, but the qualified person’s “reasonable opinion”
“64. On this point we consider that the Commissioner is right, and that in order to satisfy the sub-section the opinion must be both reasonable in substance and reasonably arrived at. We derive this conclusion from the scheme of the Act and the tenor of section 36, which is that the general right of access to information granted by s 1 of the Act is only excluded in defined circumstances and on substantial grounds. The provision that the exemption is only engaged where a qualified person is of the reasonable opinion required by section 36 is a protection which relies on the good faith and proper exercise of judgment of that person. That protection would be reduced if the qualified person were not required by law to give proper rational consideration to the formation of the opinion, taking into account only relevant matters and ignoring [2018] AACR 29 (IC v EM and ACOBA) (Three-Judge Panel) 18 irrelevant matters. In consideration of the special status which the Act affords to the opinion of qualified persons, they should be expected at least to direct their minds appropriately to the right matters and disregard irrelevant matters. Moreover, precisely because the opinion is essentially a judgment call on what might happen in the future, on which people may disagree, if the process were not taken into account, in many cases the reasonableness of the opinion would be effectively unchallengeable; we cannot think that that was the Parliamentary intention.”
“58 That is what section 58 does. The tribunal is required to consider whether the Commissioner’s decision notice was in accordance with law. That directs attention to the contents of the notice and the scope of the Commissioner’s duty under section 50. And that directs attention to whether the public authority is required to disclose the information. There is nothing in the language of the section or inherent in the nature of the tribunal’s task to limit the scope of that consideration. In other words, the section imposes the “in accordance with the law” test on the tribunal to decide independently and afresh. It is inherent in that task that the tribunal must consider any relevant issue put it by any of the parties. That includes a new exemption relied on by the public authority.”
“22. In the circumstances we can only make sense of section 58(1) by interpreting the word "or" disjunctively in the context of appeals by public authorities and conjunctively in the context of appeals by applicants for information. In other words, we construe the subsection as if it read: the tribunal shall allow the appeal and/or substitute such other notice as could have been served by the Commissioner; and in any other case the tribunal shall dismiss the appeal. 23 In our judgment the tribunal has power, in the case of an appeal by an applicant for information, to allow the appeal and substitute such notice as could have been served by the Commissioner.”
“33. When doing so the tribunal is not limited to a secondary reviewing function such as would be appropriate in judicial review unless Parliament constrains the function of the tribunal in that or any similar way. Parliament has done so on more than one occasion, for example by removing a right of appeal or by imposing a judicial review test rather than a merits test upon certain appeals. When not so constrained, the tribunal is part of the decision-making process. Its appellate function is an extension of the decision- making function. The tribunal stands in the shoes of the decision maker. It is independent of the Executive but undertakes the same task by applying the Immigration Rules and such other policy guidance as the Executive may lawfully promulgate within the statutory scheme. The tribunal may differ from the Secretary of State's view about a particular public interest that is in play in a particular case but must always in so doing provide a reasoned conclusion including by reliance upon country guidance or other authoritative specialist materials.”
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