Edward Williams v The Information Commissioner & Anor

The appellant made it clear that these appeals are about the use of confidential annexes to decision notices and that he was seeking a decision from the tribunal effectively confirming that their use is unlawful. His primary argument is that the use of confidential annexes means that the requester is in the position of not knowing precisely why their request has been unsuccessful.

The appellant relies on section 50 of FOIA, noting the mandatory language of that provision. He contends that section 50 does not contain any discretion to withhold part of a decision notice and that in doing so, the Commissioner prevents a requester from knowing the full reasons as to why they have not succeeded. Mr Pitt-Payne noted that section 50 does not contain any obligation for the Commissioner to give reasons for decisions, albeit that he accepted that there would be a common law duty to do so and that reasons are in practice always given.

The confidential annex which the appellant seeks was part of the Commissioner’s decision in Mr Greenwood’s case. The decision notice in the Greenwood case contains the Commissioner’s detailed reasons which are relied on by the Commissioner in the present appeals. It is contended that this discharges any duty on the Commissioner to give reasons in respect of the appellant’s requests.

In respect of the appellant’s arguments about the appropriateness/lawfulness of the use of confidential annexes, we do not find that decision notice FS50865757 is of any assistance to us. The appellant sought to rely on it because the confidential annex was disclosed by the Commissioner and he sought to argue that it demonstrates that the use of confidential annexes is unnecessary. We disagree. All that this demonstrates is that in this particular case, the public authority agreed to disclose the confidential annex and that it was subsequently therefore published by the Commissioner.

It is part of the appeal process that the contents of any confidential annex and/or CLOSED bundle will be reviewed and where it is no longer appropriate to withhold some or all of the information contained within them, that information will be disclosed. This is an important check on the use of confidential annexes and CLOSED bundles. Indeed, in these appeals this process of review resulted in the disclosure of a redacted version of the confidential annex to the appellant.

We reject the appellant’s reliance on the Court of Appeal’s decision in Montague for his submission that the Upper Tribunal’s decision in Williams is wrong. Firstly, Williams is about the use of sections 23 and 24 of FOIA in the alternative and is not relevant in the present case. The decision in Williams was not successfully challenged and remains binding and nothing in Montague, (including in the Supreme Court’s subsequent judgment which upheld that of the Court of Appeal) changes that. The position here is not the same in any event. In this case, more than one exemption is relied on as being engaged. It is not a case where two exemptions are relied on in the alternative for the purposes of masking which one is in fact engaged. It is entirely permissible for more than one exemption to be relied on where more than one exemption is engaged. Reasons have been given for the exemptions relied on and while the appellant may disagree with them, this is not a case where it is not possible to say which exemption is engaged.

Given that we have rejected the appellant’s arguments in relation to section 50 of FOIA we have not found it necessary to engage with the table set out in the appellant’s skeleton argument.

We have relied on the evidence of Mr Madden. His OPEN evidence was not challenged, and we find that we can place weight upon it.

The appellant did not dispute that the Solicitor General is a qualified person for the purposes of section 36 of FOIA. While the appellant did not expressly concede that the opinion is reasonable, he did not make submissions to the contrary. We note that the reasonableness of the qualified person’s opinion was not challenged by Mr Greenwood.

The reasonable opinion must identify the relevant provision of section 36 and the relevant prejudice. We are satisfied that it does both. We find that the opinion of the qualified person was a reasonable one. In making this finding we have had regard to the fact that ‘reasonable’ in section 36(2) means ‘substantively reasonable and not procedurally reasonable’. The information provided to the qualified person formed a reasonable basis on which they could conclude that disclosure would be likely to have inhibit the free and frank provision of advice and/or the free and frank exchange of views for the purposes of deliberation and/or prejudice the effective conduct of public affairs.

We find that the exemption is engaged and therefore that the remaining issue is whether the public interest balance was correctly carried out. The reasons which we can disclose in this OPEN decision are set out below.

In determining whether section 36 was correctly relied on, we have considered

In his OPEN statement, Mr Madden sets out what information is already available in the public domain about the appointment process. This includes the information contained in the Greenwood decision notice and the redacted version of the confidential annex which has been disclosed.

As Mr Madden explains, part of the process is pre-appointment conversations which take place between ministerial appointees and Cabinet Office officials. That these conversations take place is on the public record, but the substance of them is not and that is what has been withheld.

We accept Mr Madden’s evidence that the withheld information contains additional information about the appointment process, the specific appointment of Mr Pincher, and the material held in the underlying case. We also accept that it goes further than the Cabinet Office has or would provide publicly, and that it was provided in confidence to the ICO to assist the Commissioner in coming to his decision in respect of the Greenwood request.

Mr Madden identifies the following harms that would be likely to arise as a result of disclosure:

The appellant did not challenge Mr Madden’s evidence in this regard. We are satisfied that the harms identified by Mr Madden, together with those identified in his CLOSED evidence are real and are likely to occur as a result of disclosure of the withheld information.

We now move on to consider the balance of the public interest. We note that there is nothing in our CLOSED decision in relation to the public interest balance; our reasons can be set out in full in this OPEN decision.

We accept that there is strong public interest in knowing how ministerial appointments are made. We also accept that there is public interest in knowing how the Commissioner makes decisions. In this particular case, we agree that there is also public interest in the appointment of the former Deputy Chief Whip, and the role that appointment played in the resignation of the former Prime Minister.

The prejudice caused by disclosure would, in our view, be severe. We find that the resulting likely loss of frankness and candour both in the information provided and the discussions and deliberations, would be likely to damage the quality of advice given. This would in turn inhibit the Prime Minister’s ability to make informed decisions about appointments.

Disclosure would be likely to damage the confidence of ministers in the process, particularly in light of the clear expectation of confidentiality.

The Commissioner must be able to communicate his decisions to public authorities where the reasoning relies on confidential information, including exempt information. To release the confidential annex containing that exempt information would have the effect of rendering the exemption redundant and would result in the harms occurring that the exemption is designed to prevent.

The timing of the request and the assessment of the public interest is a relevant consideration here. The date of assessment is 4 December 2024. At that time Mr Greenwood had a pending appeal. A decision to disclose the confidential annex while that appeal was pending would have had several serious consequences: 1) it would have interfered with and undermined the First-tier Tribunal’s case management of that appeal; 2) it would have pre-empted the First-tier Tribunal’s decision as to how the confidential annex should be treated; and 3) it would have effectively denied the Cabinet Office a fair hearing.

Some information about the appointment of the Deputy Chief Whip was provided in a statement to the House of Commons by the then Minister for the Cabinet Office on 5 July 2022. It is the Commissioner’s view that disclosure of the requested information would not add to this statement in such a way as to outweigh the harms identified. We agree.

We find that the balance of the public interest lies in maintaining the exemption. We attach greater weight to the factors against disclosure because of the substantial harms and prejudice that would arise as a result of disclosure. None of the factors for disclosure is sufficient either alone or cumulatively to outweigh the factors against disclosure.

The Commissioner did not expressly consider the application of section 41 of FOIA given his conclusion in relation to section 36.

The appellant does not accept that the information was obtained from any person and/or that it has the necessary quality of confidence. He submits that if section 41 is engaged, disclosure would not give rise to an actionable breach of confidence because there would be a clear public interest defence.

We are satisfied based on Mr Madden’s evidence contained in his OPEN witness statement that the withheld information was obtained in confidence from the Cabinet Office by the ICO. We are satisfied that there was an expectation of confidentiality by those engaged in the ministerial appointment process. We accept the Cabinet Office’s submission that there is no countervailing public interest capable of overriding the duty of confidence. Accordingly, we find that section 41 was engaged and that the Cabinet Office was entitled to rely on it in withholding the requested information.

We find that section 36(2)(b)(i) and (ii), 36(2)(c) and 41 are engaged. We uphold decision notice IC-357108-M9H2.

As is set out above, the confidential annex was provided with the decision notice relating to Mr Greenwood’s request for information. It contained confidential information about the reasons for withholding the requested information under section 36 and some descriptions of the withheld information.

In his grounds of appeal, the appellant asserts that ‘the relevant exemption does not apply’. He gives no reasons for this assertion. In his skeleton argument the appellant asserts that reliance on section 132 of the DPA is misplaced. He contends that the ICO ought to have relied on section 40 of FOIA rather than section 44 because that is the appropriate exemption that deals with personal information.

The appellant appears to consider that the ICO’s reliance on section 44 was a device to avoid having to conduct a qualified public interest balance in relation to any third party data. The appellant submits in the alternative that the public interest gateway in section 132 of the DPA would permit disclosure in the event section 44 is engaged.

It has been established that public authorities come within the meaning of an identified or identifiable business within section 132(1) and that section 132 is sufficiently wide to include advice provided to a public authority by the ICO.

The confidential annex was created by the ICO and contains his analysis of the issues, but we find that it also contains information provided to him by the Cabinet Office. We are satisfied that that information was provided to the ICO by the Cabinet Office, which is an identifiable business, in the course of the ICO discharging its regulatory functions. We are satisfied based on the evidence of Mr Madden that the information contained in the confidential annex is not and has never been in the public domain. Accordingly, we find that section 132(1) is engaged and that disclosure of the requested information may only be made with lawful authority.

We are satisfied that the ICO did not obtain (and was not required to obtain) consent from the Cabinet Office to disclose the requested information.

The appellant contends that the confidential annex was created for the purpose of being disclosed to the public in a section 50 decision notice. We reject the appellant’s contention. The confidential annex was created expressly so that the information contained within it would not be made public in the decision notice.

We are satisfied based on the CLOSED evidence of Mr Madden that the information was not obtained by the ICO or provided by the Cabinet Office for the purpose of it being made available to the public. We accept his evidence about the confidentiality of the appointment conversation process.

We are satisfied that the disclosure of the information is not necessary for the discharge of one or more of the ICO’s functions. We have rejected the appellant’s arguments relating to the requirement to give reasons as set out above. The appellant has not identified any of the ICO’s function for which disclosure of the requested information would be necessary.

There are no civil or criminal proceedings for the purpose of which disclosure is necessary.

The appellant argues that section 132(2)(f) applies because disclosure is necessary in the public interest. While the ICO accepts that there is strong public interest in understanding decisions made by public authorities, the ICO contends that this has already been met through the provision of a detailed decision notice in the Greenwood case, which is relied on in the present appeal. The ICO submits that the Greenwood decision notice sets out the Commissioner’s decision, the applicable law, the tests to be applied and the Commissioner’s application of those tests to the facts of the case. While the ICO acknowledges that the parties may disagree with the Commissioner’s conclusions, the ICO is of the view that there was sufficient explanation contained in the decision notice to enable them to challenge that decision.

The ICO argues that it cannot be in the public interest to disclose information that the Commissioner has determined can be lawfully withheld, in circumstances where that decision is subject to an appeal. We agree, because to do so would completely undermine the appeal process which was ongoing both at the date of the request and the date of the ICO’s decision (27 January 2025). To undermine the statutory appeal process is most certainly contrary to the public interest.

We find for these reasons, that none of the gateways to disclosure contained in section 132(2) applies and that section 44 was correctly relied on by the ICO. We uphold the Commissioner’s decision notice IC-359941-K4M1.