The National Archives v The Information Commissioner

Section 1(1) provides individuals with a general right of access to information held by public authorities. It provides:

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:

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.

Section 2(2) addresses potential exemptions to the Duty to Disclose. That section provides:

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 (as noted below), the relevant section is section 36. Section 36 is included in that list, 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).

Accordingly, in summary, the exemptions to the Duty to Disclose in section 36 are subject to the Public Interest Test.

The Public Interest Test is to be assessed in respect of the circumstances applicable as at the date of the public authority’s response to a request. If a public authority is late issuing its response (i.e. outside of the statutory timeframes for compliance), then the Public Interest Test in assessed in respect of the circumstances applicable as at the latest date by which it should have responded.

So far as is relevant for the purposes of the appeal, section 36 provides:

In summary, the above provisions of section 36(2) provide that (subject to the Public Interest Test) information is exempt from disclosure if, in the reasonable opinion of a qualified person, disclosure of it would or would be likely to: (i) inhibit the free and frank provision of advice; (ii) inhibit the free and frank exchange of views for the purposes of deliberation; or (iii) prejudice the effective conduct of public affairs.

Whether an exemption under section 36(2) is engaged depends on the ‘reasonable opinion’ of the qualified person. Case law has established that this means substantively reasonable and not procedurally reasonable.

In order for some exemptions in FOIA to be engaged, there must be some prejudice to the matters referred to in the specific exemptions. These are known as ‘prejudice-based’ exemptions. Other exemptions apply only to a particular category or class of information, which are known as ‘class-based’ exemptions.

Section 36(2) contains ‘prejudice-based’ exemptions. The relevant exemptions in section 36(2) use the terms ‘would’ and ‘would be likely to’ cause the relevant harm or prejudice. This means that the harm or prejudice in question is more probable than not or that there is a real and significant risk of it happening. In this case, the relevant harm or prejudice is inhibition of the free and frank provision of advice, inhibition of the free and frank exchange of views for the purposes of deliberation, or prejudice to the effective conduct of public affairs.

If a public authority is to rely on any such exemption, it must show that there is some causative link between the potential disclosure of the relevant information and the harm or prejudice in question. The public authority must also show that the harm or prejudice is real, actual or of substance. It must also relate to the interests protected by the exemption.

We first address some other points before turning to the main issues in the appeal.

As we have noted, the Decision Notice concluded that section 36(2)(b)(i), section 36(2)(b)(ii) and section 36(2)(c) were engaged in respect of the relevant Requested Information. The qualified person’s opinion was given by the Appellant’s Chief Executive and the Keeper of the National Archives (at the time, Jeff James). In respect of section 36(2)(c), the Commissioner considered that the qualified person’s opinion was not reasonable in respect of various reasons which had been cited as to why disclosure would otherwise prejudice the effective conduct of public affairs. However, the Commissioner considered that the qualified person’s opinion was reasonable in respect of other reasons which had been cited and accordingly the Commissioner found that section 36(2)(c) was engaged.

As we have also noted, the Appellant’s grounds of appeal did not challenge the Decision Notice’s findings regarding section 40(2) or regarding the engagement of the section 36(2)(b)(i), section 36(2)(b)(ii) and section 36(2)(c). For convenience, we refer below simply to ‘section 36(2)’ to cover all of those limbs of that section.

Aside from the Appellant’s ground of appeal regarding the Decision Notice being inconsistent with an earlier decision notice (which we address below), the Appellant’s grounds of appeal related only to the application and outcome of the Public Interest Test in respect of section 36(2). The overall basis of the Appellant’s grounds of appeal was that the Commissioner failed, in respect of the Public Interest Test, to place sufficient weight on the Appellant’s arguments in support of its reliance on the exemptions in section 36(2). The Appellant argued that (contrary to the findings in the Decision Notice) the Public Interest Test favoured maintaining the exemptions.

Accordingly, the primary issue for the Tribunal to determine was whether the Decision Notice was correct in determining that, in respect of section 36(2), the Public Interest Test favoured disclosure of the Disputed Information.

As we have noted, the Appellant’s grounds of appeal included its argument that the Decision Notice contradicts an earlier decision notice which the Commissioner had issued.

Previous decisions of the Commissioner are not binding on him when issuing decision notices, and each decision turns on its facts in any event. We therefore do not consider that there was any error in law in the Decision Notice on the basis of any alleged inconsistency in the earlier decision notice which the Appellant cited.

More significantly, for the purposes of the appeal, any decision notices of the Commissioner (including the Decision Notice itself) are not binding on us. Further, we have no jurisdiction to consider the lawfulness of other decision notices, only the Decision Notice itself.

We have therefore not taken into account in our deliberations the other decision notice cited by the Appellant, but rather have assessed the lawfulness of the Decision Notice in accordance with our remit as referred to above.

We start by briefly addressing some background details regarding records held by the Appellant, as well as the nature of the Disputed Information.

As outlined by the witness, public records held by the Appellant are transferred to it from a government department which created the record. The government department in question has the responsibility for deciding which records should be selected for permanent preservation, and whether records should be transferred on an ‘open’ or closed’ access basis. After records have been transferred, the Appellant will undertake a review of the access status and sensitivity of the records on receipt of request under FOIA or a ‘Reclosure request’. A ‘Reclosure request’ occurs when the Appellant is contacted by a member of the public, a government department or a member of its staff to consider whether information within an ‘open’ record should be closed. Reclosure requests are received when the government department or person making the request identify information within an ‘open’ record which they believe may need to be withheld under a FOIA exemption (and thus changed to a ‘closed’ record).

The witness explained that it is through those processes that the Appellant is able to assess and amend the application of FOIA exemptions to the records, or the access status of the records as ‘open’ or ‘closed’.

The witness further explained that when the Appellant undertakes research to decide whether information can be released from a record, its staff write a ‘research report’ which contains a summary of the record’s contents and lists the potential sensitive information within it and any FOIA exemptions which are considered to apply.

Turning to the nature of the Disputed Information, the Appellant stated that it had, where possible, redacted portions of documents, rather than withholding entire documents, to enable openness as much as possible. The Appellant explained that only four documents were withheld in full and that all of them were the same type of document (Reclosure proforma). See point 1 of the Closed Annex. The Appellant stated that this information was withheld either because it related to live issues relating to the operation of its ‘Reclosure policy’ or it related to information which is contained in a ‘closed’ record.

The Appellant withheld the Disputed Information in reliance upon the qualified person’s opinion which set out their views on why it was important that staff feel free to offer candid assessments of why particular files should be disclosed and to be able to discuss issues candidly and openly with each other. The Appellant’s position was that disclosure of the Disputed Information would be likely to make those staff less willing to offer their opinions or to offer less detailed opinions. This was the harm or prejudice relevant for the Appellant’s reliance on section 36(2) in order to withhold the Disputed Information.

Part of the Appellant’s case that the Public Interest Test favoured maintaining the exemptions in section 36(2) was that the Disputed Information involves ‘closed’ records (as opposed to ‘open’ records). The concern expressed by the witness was that the Decision Notice was compelling the Appellant to release research reports which contain details of the reasons why such sensitivities are to be withheld.

The Commissioner’s view was that the information in question contains generic explanations as to why certain information is to be withheld under FOIA exemptions. The Commissioner submitted that this was akin to the information contained in a refusal notice given under section 17. He considered that to the extent that the Appellant departed from the views on FOIA exemptions contained in them, that would reflect the circumstances at the time of any future request for information, which can be explained in response to any such requests.

The Appellant argued that the Commissioner, in the Decision Notice, failed to attach sufficient weight to its need for a safe space to develop both Matter 1 and Matter 2, as well as for more general recommendations regarding changes to the operation of its ‘Reclosure policy’. The sensitivities in respect of Matter 2 were addressed further in paragraph 50 of the witness statement (which was redacted in the open bundle). As noted in its grounds of appeal, the Appellant asserted that it is vital that it is afforded a safe space in which staff can express themselves openly, honestly and completely, or to explore extreme options, when providing advice or giving views as part of the process of deliberation. See point 2 of the Closed Annex.

Similarly, the Appellant submitted that the Commissioner placed too little weight on its arguments that the disclosure of the Disputed Information would be likely to create a chilling effect. The Appellant’s concern was that a form of self-censorship may occur which would hamper the quality of decision-making.

The Appellant argued, in summary, that Matter 1 and Matter 2 were live issues and that the Commissioner’s approach was inconsistent with his own guidance on section 36 which recognises the importance of an issue being “live” when applying the exemptions under that section. The Appellant referred to that guidance stating that chilling effect arguments are “likely to be strongest if the issue in question is still live” and that “the need for a safe space will be the strongest when the issue is still live”.

The Appellant made further related closed submissions, in respect of the Commissioner’s reasoning in the confidential annex to the Decision Notice. See point 3 of the Closed Annex.

The witness explained that the Appellant had been undertaking improvements to its Reclosure processes for some time, including some focus on clearing a substantial backlog of Reclosure review work. The witness stated that once the Appellant has completed its improvement work, it intends to publish information about this in a timely and controlled manner, in the interests of full transparency and accountability. They went on to say that until then a safe space was needed to “enact this improvement work” without prejudice to decision-making. The Appellant similarly submitted that its intent is to be more transparent about its work in this area in the future.

Part of the Appellant’s position regarding the need for a safe space was that there had been (amongst other things) negative press coverage, combined with high volumes of requests under FOIA concerning the operation of Reclosure and complaints on request handling. The witness explained that the Appellant had also received a letter in October 2024 signed by 21 academics who were concerned about how the Reclosure of records may affect their research. The witness stated that the attention was causing disruption to, and therefore negatively impacting, the Appellant’s Reclosure improvement work. They also stated that “it is certainly true that officials at [The National Archives] are acutely aware of the negative press attention surrounding their work in upholding information rights law, and particularly around Reclosure” and a related point made was that disclosure of the Disputed Information would contribute to the chilling effect for relevant staff. See point 4 of the Closed Annex.

The witness statement outlined the information which the Appellant publishes on its Reclosure work, which included details of its ‘Reclosure policy’, annual Reclosure statistics and supporting ministers in responding to Parliamentary Questions. The witness stated that the Appellant publishes the applicable FOIA exemptions and closure periods for each record on its online catalogue, Discovery, to ensure transparency and aid scrutiny. In addition, the witness stated that, in connection with the Request (and other requests for information relating to Reclosure), the Appellant has also released much information already regarding its Reclosure work.

The Appellant contended that the Commissioner’s response to the appeal asserted, in essence, that the relevant Disputed Information should be disclosed on the basis that it is generic and does not contain details of the lessons learned or any ongoing issues or successes identified during Matter 2. However, we understood the Commissioner’s submission to be, rather, that the Appellant was seeking to withhold from disclosure the very existence of Matter 1 and Matter 2, including any generic reference to Matter 1 or Matter 2 (with the other points regarding Matter 1, including about ‘lessons learned’ being a related, but different, submission). The Appellant nevertheless addressed that issue (regarding disclosure of the existence of Matter 1 and Matter 2) in its submissions, which we refer to in paragraph 66.

A related point made by the Commissioner was that disclosure of the Disputed Information would not hinder the Appellant’s safe space to evaluate Matter 1 and would instead inform the public that the Appellant was undertaking Matter 1.

The Appellant’s position was that disclosure of the existence of Matter 1 would inevitably increase the level of disruption it had already experienced and would accordingly hinder the safe space needed to evaluate it (see also Point 4 of the Closed Annex again). Likewise, the Appellant argued in respect of Matter 2 that if the Disputed Information was published, it would expect to receive follow-up questions and requests for information under FOIA, which could delay the work surrounding the evaluation of Matter 2.

The Appellant also submitted, and the witness stated, that the Appellant’s staff who write research reports are junior members of Civil Service staff with no formal training or qualifications as archivists. The Appellant asserted that if such staff are worried about their advice being made public, the advice will be less candid (would not be ‘free and frank’). This was part of the ‘chilling effect’ concerns raised by the Appellant.

In contrast, the Commissioner’s position was (in essence) that the junior staff would not be deterred from undertaking the relevant work and that their names would be redacted from disclosure under section 40(2) in any event. The Commissioner accordingly disputed that there would be ‘chilling effect’ as asserted by the Appellant.

The Appellant acknowledged that there is a strong interest in openness and transparency around the Reclosure process and the witness stated that they were “particularly mindful of the public interest in this topic”. The Appellant also accepted that there is significant interest, and an expectation of transparency, given its obligations under the Public Records Act 1958 and the importance of access to historical public records.

The Appellant accordingly acknowledged the public interest in transparency around how it operates the process to manage access to records. It also accepted that release of the Disputed Information may provide further understanding of the accountability of the Appellant in relation to meeting its obligations under the Public Records Act 1958 and would improve public confidence in the integrity of the process and decisions made.

However, the Appellant’s position was that the public interest in transparency and accountability was sufficiently satisfied by the amount of information already in the public domain regarding its ‘Reclosure policy’ and related matters (see paragraph 63). As we have noted, the witness also stated that the Appellant’s intention is to publish further information about its Reclosure process improvement work in due course.

In summary, as we have noted:

We find (taking into account the witness’s evidence) that Matter 1 was live at the time of the Request. We find that Matter 2 was not live at the time of the Request. See point 5 of the Closed Annex.

We accept the general premise in the Commissioner’s guidance on section 36 (as referred to by the Appellant), to the effect that the need for a safe space will be strongest if the issue in question is still live and that ‘chilling effect’ arguments are also likely to be strongest if the issue in question is still live. We have taken this into account in our consideration of the Public Interest Test regarding Matter 1 (given our finding that this was live at the time of the Request).

In the case of a prejudice-based exemption such as those in section 36(2), case law has established that the fact that the exemption is engaged means that there is automatically some public interest in maintaining it. We have accordingly taken that into account in our assessment of the Public Interest Test.

We find that there was significant public interest in the Appellant’s Reclosure work, including media coverage, concerns from academics and requests for information under FOIA. We also accept the witness’s evidence that the level of public interest was causing disruption to, and therefore negatively impacting, the Appellant’s Reclosure improvement work.

In respect of Matter 1, we recognise that disclosure of the Disputed Information, or even just disclosure of the existence of Matter 1, may hinder the Appellant having a ‘safe space’, given the potential additional disruption which may then occur.

We have also taken into account that negative press attention, as referred to by the witness, could also have a ‘chilling effect’ on what the Appellant’s staff put on record regarding relevant matters. We accept the witness’s evidence that the relevant staff – namely, those who write reports giving their opinion on Reclosure - are relatively junior (not senior civil servants or professional archivists).

The witness gave their opinion about the likely impact on team members should the Disputed Information be disclosed, including that the ‘chilling effect’ could adversely affect the integrity and quality of information and advice given to the Advisory Council on National Records. The Appellant submitted that the witness’s evidence in this regard should be given significant weight, on the basis that they were familiar with the staff’s methods of working, and what external influences are likely to impact on their day-to-day work.

The witness’s opinion was that if junior members of staff believed that the contents of their Reclosure reports would be released publicly, this “would likely have a very real chilling effect on what they write down in future”. The concern raised was that the staff in question would be deterred from giving their honest and frank opinion in their reports. The witness stated that this could in turn impact the integrity and quality of the decision-making of the Reclosure Panel and any advice it submitted to the Advisory Council on National Records and Archives and/or engagement with the government departments which transfer records.

Notwithstanding that opinion, we are not persuaded that junior members of staff would be deterred from giving their honest and frank opinion as to the potential Reclosure of a record if the Disputed Information were disclosed, for the following reasons.

First, the Appellant did not provide any witness evidence from any of the junior members of staff in question; only the witness statement providing the witness’s opinion as to the ‘chilling effect’ on such staff.

Secondly, we share the Commissioner’s views to the effect that: (i) a failure to provide a justification for their recommendation is likely to generate further enquiries and create more work; and (ii) failing to apply potentially relevant exemptions for not disclosing records could create exposure for the Appellant (the example given by the Commissioner being that failing to identify that that a file may contain personal data could result in a breach of data protection law).

Thirdly, as the Commissioner submitted, the names of any junior members of staff would be redacted under section 40(2) – this being the exemption which the Decision Notice concluded could be relied on by the Appellant in respect of the relevant Withheld Information - and consequently there would be no public identification of the individual who gave their opinion or prepared the relevant report.

Moreover, as we have noted, the witness stated that the Appellant publishes the applicable exemptions and closure periods for each record on its online catalogue, Discovery. Given that, we consider it probable (at least) that the staff in question must already be aware that their reports, or material aspects of them, may be made public anyway. Also, as the witness stated, the purpose of such publication is to ensure transparency and aid scrutiny, providing important context as to the purpose of that information being made public (as to which the staff should, of course, also be aware).

Further, we consider that the relevant staff (even if not senior) should have a general understanding and potential expectation of disclosure of information under FOIA in any event, especially given the nature and extent of the media and other interest which the witness referred to.

In our view, the above issues are counterintuitive to the ‘chilling effect’ asserted by the Appellant. Accordingly, whilst we have taken the witness’s evidence into account, we do not consider that the concerns about the ‘safe space’ and the ‘chilling effect’ carry significant weight in respect of the Public Interest Test.

We also find, as submitted by the Commissioner, that the relevant Disputed Information does not contain details of the lessons learned or any ongoing issues or successes identified during Matter 2 (or Matter 1). We also find that the relevant Disputed Information contains some generic references to risks raised by a senior member of staff or by individuals whose names may be redacted under section 40(2). Likewise, as stated by the Commissioner in paragraph 41 of the Decision Notice, we also find that the references to internal discussions within the minutes contained in the Disputed Information are largely high level and generic.

We recognise that there can be a distinction between the public interest in the disclosure of a decision taken by a public authority and the disclosure of the precise content of discussions and other information preceding that decision. We also recognise that, in considering the Public Interest Test (and matters such as the ‘chilling effect’ or the need for a ‘safe space’), what is required is an assessment and comparison of actual harm and benefit by reference to the specific contents of the Disputed Information.

Our findings on the nature of the Disputed Information in paragraph 88 reinforce our view that that the Appellant’s concerns about the ‘safe space’ and the ‘chilling effect’ do not carry significant weight in respect of the Public Interest Test (see also our comments in paragraph 93 regarding Matter 2).

See point 6 of the Closed Annex. As recorded by the Commissioner in paragraph 40 of the Decision Notice, the Disputed Information does not contain any opinion belonging to any government department which transfers records. Nevertheless, we accept that there is a risk that disclosure of the Disputed Information might adversely impact the quality of submissions from such government departments in future, and we have taken that into account, even though the Appellant did not adduce any evidence in that regard from any such government departments. However, we consider that the risk of such prejudice is low. We agree with the Commissioner’s comments in paragraph 40 of the Decision Notice that government departments which transfer records have a strong incentive to protect information which remains sensitive and that it is very unlikely that that incentive will be overridden, to any significant extent, by any fear of comments being made public. See point 7 of the Closed Annex.

As we have noted, the Appellant submitted that another relevant factor favouring maintaining the exemptions in section 36(2) was that the Disputed Information discusses information which is ‘closed’. We have also taken that into account, but we consider that this should not be afforded significant weight, as the Disputed Information does not detail the specific content of the ‘closed’ records (and having regard to our findings on the nature of the Disputed Information in paragraph 88).

In summary, we have found all of the above to be relevant for the purposes of the Public Interest Test, as factors favouring maintaining the exemptions in section 36(2). However, in respect of Matter 2, we consider that little or no weight should be given to the need for a ‘safe space’ or the ‘chilling effect’ arguments, given our finding that Matter 2 was not live at the time of the Request. See point 8 of the Closed Annex.

Turning to the factors favouring disclosure of the Disputed Information, the level of public interest is, of course, a highly relevant factor. As we have noted, the Appellant acknowledged that there is a strong interest in openness, transparency and accountability, but the Appellant’s position was that the public interest was sufficiently satisfied by the amount of information already in the public domain and intended to be published in the future. See point 9 of the Closed Annex.

However, we share the Commissioner’s concerns that the Appellant seems to be seeking to withhold from disclosure the very existence of Matter 1 and Matter 2. It appears to us that the Appellant does not want to disclose the fact that Matter 1 and Matter 2 exist (or, to put it another way, that the Appellant is undertaking the initiatives in question). This view is supported by the fact that references to Matter 1 and Matter 2 have been redacted in the open bundle (in addition to the question of the Disputed Information itself), and by the Appellant’s position regarding Matter 1 as noted in paragraph 66. See point 10 of the Closed Annex.

As we have noted, we recognise that disclosure of the existence of Matter 1 may hinder the Appellant having a ‘safe space’ and as such is a factor we have taken into account favouring maintaining the exemptions in section 36(2). However, as part of the balancing exercise in the Public Interest Test, this needs to be assessed in conjunction with the public interest factors favouring disclosure.

In our view, in considering factors favouring disclosure of the Disputed Information, substantial weight should be afforded to the issues of openness, transparency and accountability. This is because of the significant public interest we have referred to (including the “expectation” of transparency which the Appellant acknowledged), together with the Appellant’s obligations under the Public Records Act 1958 and the importance of access to historical public records as a general principle.

We accept that some information has been published regarding the Appellant’s Reclosure work and that the Appellant intends to publish more, but we disagree with the Appellant’s view that the issues of openness, transparency and accountability are sufficiently satisfied by such existing and future publication. In particular, as referred to above, the public is not aware of the existence of Matter 1 or Matter 2. Given the factors we outlined in the preceding paragraph, we consider that the public interest favours informing the public of the fact that the Appellant is undertaking Matter 1 and Matter 2.

Whilst we recognise that disclosure of the existence of Matter 1 may hinder the Appellant having a ‘safe space’, we consider that it is possible that the existing and future disruption which the Appellant and the witness referred to could in fact be mitigated by such disclosure. It is public knowledge that the Appellant is undertaking some Reclosure work but, as we have noted, the public is not aware that Matter 1 or Matter 2 exist. Some of the attention referred to in paragraph 62 could be related to public concerns about what the Appellant is doing with regard to Reclosures and accordingly disclosure of the Disputed Information could assuage the amount of attention by giving the public some answers.

Our comments in the preceding paragraph are not material to our conclusions, however. In considering the Public Interest Test, we have taken into account the factors we have referred to favouring maintaining the exemptions in section 36(2), including the Appellant’s arguments regarding the ‘safe space’ and ‘chilling effect’, balancing those against the factors we have outlined favouring disclosure of the Disputed Information. For the reasons we have given (including taking into account the nature of the Disputed Information as noted in paragraph 88), we find that the strong public interest factors in favour of disclosure outweigh the public interest in maintaining the exemptions.

As we have noted, the Request was dated 15 February 2024 and the Appellant only responded to the Request on 16 April 2024.

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.

The Commissioner did not address this in the Decision Notice but, given the Appellant’s delay in responding to the Request, we find that the Appellant breached section 17(1).

This finding does not, however, affect our decision regarding the ultimate conclusion reached in the Decision Notice (and in respect of the material issues in the appeal), given that our decision results in the same outcome – namely, that the Appellant cannot rely on 36(2) to refuse to provide the Disputed Information. As we are accordingly dismissing the appeal, we conclude (having regard to the provisions of section 58) that there is no basis for us to substitute the Decision Notice notwithstanding that finding.

For completeness, we also observe that:

For all of the reasons we have given, we find that the Decision Notice was correct to conclude that that the Appellant was not entitled to rely on section 36(2) to withhold the information it withheld in reliance on that section as, although the exemptions in section 36(2) were engaged, the Public Interest Test favours disclosure of such information.

We therefore dismiss the appeal.