First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Decision notice fs50841228
Appeal Reference: EA/2020/0240
Heard on CVP platform
On 29/30 April 2021
Before
JUDGE CHRIS HUGHES
TRIBUNAL MEMBERS
KATE GRIMLEY EVANS & MIKE JONES
Between
CABINET OFFICE
Appellant
and
INFORMATION COMMISSIONER
First Respondent
JENNA CORDEROY
Second Respondent
Appearances:-
Appellant: Mr A Eardley
First Respondent: Mr P Lockley
Second Respondent: Ms J Kerr Morrison
Cases
Kennedy v Charity Commission [2014] 2 WLR 808
DECISION
The decision of the Information Commissioner is correct in law. The appeal
succeeds with respect to a small part of the withheld information.
REASONS
1. On 20 August 2018 Ms Corderoy wrote to the Cabinet Office seeking
information:-
“I would like to request the following information:
For the past two months, I would like to request copies of the FOI Round Robin List,
which is circulated, to my knowledge, by the Cabinet Office.
I would like to receive this information in an electronic format.”
2. On 13 September 2018 the Cabinet Office replied identifying two exemptions
and indicating that the balance of public interest lay in non-disclosure:-
“Information you have requested is exempt under section 35(1)(a) and (b) of the
Freedom of Information Act, which protects the formulation of policy and
communications between Ministers. Disclosure would weaken Ministers’
ability to discuss controversial and sensitive topics free from premature public
scrutiny. In addition, other exemptions would likely also apply on a case by case
basis of requests detailed on these lists.”
3. S35 deals with the formulation of government policy and provides:-
(1) Information held by a government department … is exempt information if it
relates to—
(a) the formulation or development of government policy,
(b) Ministerial communications,
4. Ms Corderoy sought an internal review on 12 November and within the Cabinet
Office an instruction was sent for a draft of the review to be available for
consideration and sending by Ms E W Atkins (the Cabinet Office official
responsible) by 11 December. The review was not carried out and becoming
concerned about the delay, Ms Corderoy complained to the Information
Commissioner on 5 May 2019. On 10 July Ms Atkins wrote to Ms Corderoy
confirming the outcome of the internal review. The Cabinet Office now relied
on s36(2)(b) to the same effect as before. S36 provides (so far as is relevant), that
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, ….
(2) Information to which this section applies is exempt information if, in the
reasonable opinion of a qualified person, disclosure of the information under
this Act—
…
(b) would, or would be likely to, inhibit—
(i)the free and frank provision of advice, or
(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. The Information Commissioner wrote to the Cabinet Office in the light of Ms
Corderoy’s concerns about delay and after Ms Corderoy again complained to
the Information Commissioner on the basis of the outcome of the internal review,
the IC by a letter of 21 October 2019 commenced her investigation. She noted
the reliance on s36 and while asking for a copy of the withheld material, also
asked for the qualified persons opinion and pointed out that if any further
exemptions were to be relied upon they should be notified and explained to Ms
Corderoy. She asked for the Cabinet Office to set out its view on the balance the
balance of public interest and set out Ms Corderoy’s views on public interest:-
“The FOI Round Robin List which I refer to is a collation of FOI requests submitted by
individuals such as journalists and NGOs. To my knowledge, the List indicates what
the FOI requests are about, and which government department has received them. I also
believe that the FOI Round Robin List indicates which exemptions the departments
should reply upon. Taking into consideration the timing of the request as well as the
nature of the FOI Round Robin List, I do not understand how a release of the information
would prejudice or inhibit Ministers and Officials - prejudice or inhibit them from what,
exactly?”
“I believe that the information sought is in the public interest. I have concerns over how
this FOI Round Robin List operates, and how and why requesters end up on this List.
Other FOI users, I believe, would share my concerns. Furthermore, the disclosure of the
information sought would enable the public to see how the Cabinet Office treats FOI
requests and scrutinise their processes.”
“More specifically, my concerns over the operation of the List mainly relate to the
applicant blindness principle, and what categories of requesters are likely to end up on
this List. I am also concerned that the Cabinet Office is dictating to other government
departments on how they should respond to requests, and the public deserves to know
and understand how and why they are doing this.”
6. The submission to the Minister is dated 20 January 2020 and provides
background information about the request, a description of the Round Robin list
and a discussion of the public interest question:-
“4. On 20 August 2018 the Cabinet Office received the following request from Jenna
Corderoy:
“For the past two months, I would like to request copies of the FOI Round Robin List,
which is circulated, to my knowledge, by the Cabinet Office.”
5. The FOI Round Robin is a list issued daily to Whitehall departments, which
comprises a list of FOI requests from across departments that either (a) have ‘repeat
request characteristics’ (identical requests have been sent to multiple departments) or
(b) are asking about sensitive subjects that are included on the FOI ‘trigger’ list (such
as the Royal Household or Ministerial diaries) and that have been reported to the Cabinet
Office Clearing House. Once a request is added to the list, other government
departments who receive the same request also notify the Clearing House. The list
comprises a reference number, the date it was received by Clearing House, the name of
the applicant, the text of the request, a record of the departments who have currently
received it, the deadline of the request, and any advice from the Clearing house on how
departments should respond. Once responses are drafted, they are sent to the Clearing
House to be reviewed and cleared
…
11. The Round Robin list registers to government departments FOI requests that may
have been received by other departments and also offers practical advice on how to
respond to requests on often sensitive or technical issues (though departments, as
individual public authorities under the Act, are ultimately responsible for how they
respond). The intention of the Round Robin is to ensure that government departments
are aware of those issues that have a broad applicability across government, to ensure
consistency of approach across departments, and ultimately to assist in providing the
best possible advice to requesters, while also ensuring that the FOI act is being upheld
correctly.
12. As the Round Robin is a document that is updated and issued on a daily basis, the
information and advice it contains is constantly changing to take account of evolving
policy positions and advice. This information and advice, however, when viewed on its
own is often extremely concise and void of context, as the list itself is only an aid memoire
to departments, devoid of the fuller advice and discussions that occurs daily between
departments and the Clearing House in other correspondence and advice (much of which
is often verbal).
13. The disclosure of this information, devoid of the subtleties and contextuality of these
other discussions, would likely lead to a misinterpretation of much of the advice, which
in turn would be likely to inhibit the free and frank provision of that advice, and the free
and frank exchange of views for the purposes of deliberation, and therefore it is
recommended that this information is not shared publicly. We are also unconvinced as
to the public interest in doing so, as it would add very little to the general public
understanding of how central government operates or responds to FOI requests. “
7. The qualified person’s opinion was supplied to the Information Commissioner
in a letter dated 21 January 2020 and which indicated that in any event s40
redactions of the names of requesters as well as civil servants would be needed,
the Cabinet Office summarised its view:-
“We do, however, wish to reiterate the ephemeral nature of the Round Robin list, which
changes and is reissued on a daily basis. It is meant as an immediate, practical tool for
central government departments, offering them advice on often sensitive or technical
FOI issues as that advice arises (and changes) over the timeframe of individual cases.
As the submission explains, the purpose is both one of awareness and ensuring
consistency of approach (as far as individual departmental circumstances allow), both
with the ultimate aim in providing the best and most accurate advice possible to
requestors and ensuring that the FOI Act is being upheld correctly.
This free and frank provision of advice, and the fuller discussions and communications
between departments that accompanies it, is offered with an immediacy that
acknowledges that such advice may well change (sometimes significantly) as opinions
are formed, further specialised advice is sought and senior sign-off of approach is
obtained. Again, as the submission points out, viewing the Round Robin list on its own,
devoid of the context of the supporting discussions and exchanges, is very likely to lead
to a misinterpretation of much of the advice offered. The likely upshot of such public
misinterpretation would be a severe inhibition in the free and frank exchange of views
for the purposes of deliberation, as officials would only add advice to the list when they
were absolutely sure of their final position and where this was supported by contextual
information. However, this would make the Round Robin incredibly unwieldy as a
document and, more importantly, unresponsive to the day-to-day needs of evolving
situational advice between departments.
Moreover, the Cabinet Office - and the qualified person agrees - remain unconvinced of
the public interest to be gained from release of these documents, especially when taking
account of the redactions (see below) that would need to be made.
….However, should the ICO seek to challenge the qualified person’s view, then the
Cabinet Office would reserve the right to invoke section 40(2) to cover the personal
information contained within the Round Robin lists. Under such circumstances, as this
would remove a significant percentage of the list’s information - and the key information
necessary to contextualise the remaining information - we could not see that there would
be any public interest at all in releasing the remaining, substantially truncated, stub of
the list.
It went on “I hope that I have answered the main issues raised in your letter.
Please let me know if I can provide more information in relation to any of these
points. “
8. It may be noted that the Cabinet Office entirely failed to address the issues raised
by Ms Corderoy as being the public interest grounds for disclosure. It appears
that before her complaint to the Information Commissioner the Cabinet Office
relied on a previous qualified person’s opinion relating to a similar request for
information and only sought a QPO justifying the refusal of this request some
six months after it had relied upon s36 to justify refusal.
9. The Cabinet Office supplied a sample of the Round Robin list, the Information
Commissioner insisted on receiving all the requested information and on 31
January the Cabinet Office wrote to the Information Commissioner in the
following terms:-
“attached are copies of the Round Robin list within scope (circulated between 20 June
and 20 August 2018)”
10. The Information Commissioner issued her decision notice on 13 July 2020. As a
preliminary issue she addressed one of the arguments advanced by the Cabinet
Office:-
14. For the avoidance of doubt, the Commissioner does not share the public authority’s
view that the text of the information requests also constitute personal data within the
meaning of the Data Protection Act 2018. Neither does the Commissioner share the view
that applying section 40(2) would remove a significant percentage of the list’s
information and the key information necessary to contextualise the remaining
information.
11. She accepted that the QPO was reasonable in that inhibition was likely to occur
and went on to consider the severity, extent and frequency of that prejudice or
inhibition in forming her own assessment of whether the public interest test
required disclosure. In weighing the public interest she concluded:-
56. There will always be a general public interest in transparency. More specifically,
there is a strong public interest in disclosing a list which includes the names of
applicants as well as the text of their FOI request and advice from the Cabinet Office to
departments on handling these requests. Disclosure would, amongst other things, assist
the public in assessing whether requests have been included on the list in line with the
public authority’s criteria, whether Clearing House is dictating to departments how to
respond to FOI requests or offering advice in an expected manner and, whether the
advice offered and the general handling of requests on the list is influenced by the
identity of an applicant when it is not necessary do so, such as in relation to the
application of section 14 FOIA.
.
57. The Commissioner does not consider that there is a strong public interest in
withholding the round robin list within the scope of the complainant’s request. The
Commissioner does not consider that publishing the list would severely impact on the
quality of advice provided by Clearing House to departments. Whilst officials could
become more guarded with their advice as a consequence, she is not persuaded that this
would interfere in any significant way with their ability to provide sound advice which
is primarily what departments require in order to provide an FOI and/or EIR compliant
response to applicants.
58. As mentioned, the public authority has not explained how the public might
misinterpret the advice to departments. However, the Commissioner does not consider
that public misinterpretation of the request is a decisive factor in tilting the balance of
the public interest in favour of maintaining the application of section 36(2)(b) in this
case. The fact that the public authority is retaining the FOI and EIR round robin list is
more likely to be a cause for concern for some members of the public in the first place
(which is not to suggest that there are no legitimate business reasons for retaining the
list). The complainant has suggested that this is primarily the reason for her request. In
the Commissioner’s view, the public is less likely to misinterpret the advice from
Clearing House and the rest of the withheld information. In any event, the public
authority could contextualise any part of the withheld information it considers is likely
to be misinterpreted by the public before releasing it.
12. She considered the question of the names of requesters and while
acknowledging that revealing them would be of assistance in considering
whether the handling of requests was applicant blind concluded:-
78. In the Commissioner’s view, disclosure of the names of the applicants would not
significantly inform the public about how the public authority is handling certain types
of FOI requests beyond the text of the requests themselves and the advice provided by
Clearing House to departments. It is clearly not the least restrictive means of informing
the debate.
79. Consequently, the Commissioner has concluded that disclosure of the names would
not be lawful and therefore article 6(1)(f) of the GDPR is not met.
13. She made adverse findings about the conduct of the information request by the
Cabinet Office:-
81. The Commissioner considers that the public authority issued an invalid refusal
notice to the complainant in support of the application of section 36(2)(b) on 10 July
2019 nearly a year after she originally submitted her request and nearly 8 months
following her request for an internal review. Although a valid refusal notice in support
of the application of section 36(2)(b) was never actually issued to the complainant, the
Commissioner considers that if one was provided, it could not have been issued prior to
21 January 2020 when the Qualified Person gave her opinion further to the application
of section 36(2)(b).
83. Although there is no statutory time limit for completing internal reviews in the
FOIA, the Commissioner considers that, as a matter of good practice, internal reviews
should generally take no longer than 20 working days and in exceptional circumstances
40 working days.
84. There is simply no justifiable reason in the Commissioner’s view for the public
authority to have taken nearly 8 months to carry out the internal review.
14. The Cabinet Office appealed against the decision on 10 August 2020, it argued
that the balance of public interest had not been properly struck and in setting
out the background to the request in its Ground of Appeal stated:-
2. The Clearing House issues on a daily basis a “Round Robin” list recording FOI
requests that are either identical requests that have been sent to multiple departments or
are asking about sensitive subjects that have been reported to the Clearing House. The
information listed includes the name of the applicant, the content of the request, the
receiving department(s) and advice from the Clearing House on how a department may
wish to respond to the request.
15. The Cabinet Office minimised the significance of the Clearing House List which
it asserted did not detract from the rights of requesters and argued that as the
Commissioner had not found any inappropriate conduct there was only a slight
public interest in disclosure. The information should be withheld since it was
still quite recent, it was produced in haste and in large quantities so that it was
not fully considered, it might reveal what the requested information was or
other sensitive background information and might compromise a subsequent
NCND response. It set out the practical difficulties involved:-
9.(5) The Commissioner’s answer to this - that the CO can “contextualise” the
information upon release (DN [58]) - is, with respect, unreal. The Lists typically
comprise in excess of 60 cases. Considering whether clarification or context is required
for each piece of advice before releasing a List under FOIA would be extremely onerous.
It is much more likely therefore that officials will refrain from recording their advice in
the first place until they have reached a final view and/or that they will feel obliged to
explain themselves at much greater length. This would substantially damage the value
of the List. It derives its utility from being a concise, up-to-the-minute and responsive
document, candidly recording current thinking as it develops.
16. On 3 September 2020 the Cabinet Office supplied Ms Corderoy copies of the
Round Robins with the names of requesters and the Clearing House advice
redacted.
17. In her response to the appeal Ms Corderoy argued that civil servants were
accustomed to providing advice in circumstances where it might be revealed to
the public and argued that the interest in disclosure was all the greater when the
issue was live, since the Clearing House fed into the decision-making of the
government departments of which the requests were made it was important that
the requester and public should be able to feed in their concerns about this.
18. On 8 March 2021 the Cabinet Office changed its position radically. It released
much of the disputed information, the guidance given in 145 out of 159 cases
listed in the Round Robins on the basis that it had become less sensitive with the
passage of time, it relied on s23(1) with respect to seven of the 14 remaining
cases and for the remainder of the cases indicated that the s36 argument was
particularly strong.
19. On 18 March 2021 the Minister for the Cabinet Office wrote to the Society of
Editors briefly giving details of the functions of Clearing House and the criteria
for government departments to make a referral of an FOI request to Clearing
House. The letter explained:-
“The Cabinet Office plays a vital role in ensuring compliance with the Freedom of
Information Act across Government, providing assistance on complex FOI requests
while also making sure sensitive information, including that related to national security,
is handled appropriately.
A Clearing House function was established in 2004 and has operated in different forms
since the Freedom of Information Act came into force in January 2005. In 2015 Freedom
of Information (FOI) Policy moved from the Ministry of Justice to the Cabinet Office.
These coordination functions remain in place and are carried out by a small number of
staff members, who have a range of wider responsibilities. They extend to ministerial
and non-ministerial departments; non-departmental public bodies are not normally
covered, although it may be that requests to those bodies are referred to the Cabinet Office
through sponsor departments.”
20. In opening the appeal for the Cabinet Office, Mr Eardley confirmed that the
Cabinet Office was not pursuing the appeal with respect to the 145 cases. Given
the disclosure of the 145 cases there was only a marginal benefit in disclosing
the remaining 14 which had specific sensitivities. He explained that this did not
mean that the Cabinet Office would not challenge the disclosure of similar
material in the future nor would it routinely disclose the guidance from the
Cabinet Office.
21. Mr Lockley emphasised that the time the public interest balance should be
struck was the time of the final refusal to disclose. At that time none of the
disclosures made in March 2021 had been made and the publicly available
information was minimal. Ms Morrison supported this. Attention was drawn
to the impact of failing to handle the request properly for two and half years and
then relying on the very late disclosure of material to justify withholding the 14
items.
22. Ms Atkins a Deputy Director in the Cabinet Office responsible for FOI and
Transparency Data whose responsibilities include Clearing House, by a witness
statement dated 1 April gave a history of the request, of recent disclosures of the
requested material and of the Clearing House. She confirmed that the Clearing
House both provided central advice on sensitive matters, including national
security, the Royal Household, and significant live policy development as well
as ensuring a consistent response when requesters made the same request to
multiple departments. The handling of these requests was applicant-blind and
individual departments remained responsible for dealing with the requests they
received. In oral evidence she maintained her stance that the occupation of the
requester did not influence the handling of the request. Clearing House advice
was a brief review process that departments did not have to follow; “if they
don’t follow they explain”.
23. In further oral evidence Ms Atkins confirmed that the submission to the Minister
was in error and that the Round Robin List does not contain information about
requests in relation to sensitive subjects, (as listed in paragraph 5 of the QPO
submission as (b)). but only requests within (a) -identical requests to multiple
departments.
24. She explained that in responding to the Information Commissioner the Cabinet
Office had supplied all Round Robins within the date range. Subsequently they
had realised that the Round Robin dated 20 August had not been sent until 21
August and accordingly the Cabinet Office had not included it in the bundle.
The Cabinet Office had not notified the Information Commissioner of this and
it had only come to light when Counsel for the Information Commissioner
raised it.
25. In closed evidence she addressed the sensitivities of the material which in her
view justified retention under s36. This included where the advice suggested a
department should give a specific response. The giving of such advice could be
inhibited in future if officials believed that such advice would be disclosed. The
hearing explored the issues underlying other parts of the withheld material and
the fact that there was little in the public domain relating to this issue. Ms Atkins
confirmed that there was some information in the public domain (although none
on gov.uk websites), and that the matter was not a secret. She could see no
public interest in the disclosure. In considering the individual requests where
this arose she explained that her view was that disclosure of this material would
cause those providing the advice to be inhibited from giving it so freely. With
respect to advice falling within s23, Ms Atkins confirmed that she had seen e-
mails which confirmed that the advice had come from a department within
GCHQ. She confirmed that a number of individuals whose names and email
addresses were within the withheld material were not of a senior grade and
accordingly their names and the personal part of their email addresses should
be withheld under s40.
26. Ms Corderoy, as the requester, explained the background to her requests, which
arose out of the inadvertent sending of a Clearing House Round Robin list to
one of her colleagues in 2017, which had been promptly deleted but had made
her aware of the existence of the Clearing House. She had over time made many
FOI requests to government and had not been aware that Clearing House
existed. There was little information about it and no information in the public
domain since it had been transferred to the Cabinet Office in 2015. She had
systematically researched the Clearing House and was concerned about the
impact of Clearing House and its Round Robins on the proper operation of FOIA
in government. She felt that there was a troubling culture of non-transparency
and non-compliance with FOIA and wished for all the information to be
disclosed so that there could be a properly informed debate about the
appropriateness of such an operation and its place in the Cabinet Office. She
wished to see the entire material within the scope of her request so that she could
analyse an unbiased sample of the material.
27. During the hearing the Cabinet Office continued to rely on the QPO provided
in February 2020 and emphasised the relatively small amount of information
now withheld. It argued that the small public interest in disclosure when
balanced against the inhibition that disclosure would cause meant that further
material should not be disclosed.
28. In a skeleton argument dated 27 April seeking the disclosure of all the material
Ms Morrison (for Ms Corderoy) emphasised the value of conducting an analysis
of the activities of Clearing House, to examine the quality of its advice, to
increase transparency about government handling of FOIA requests, including
seeing whether requests were blocked and how requests from journalists,
campaigners and researchers were treated. She noted that the Cabinet Office
had only raised the s23 argument on 5 March 2021, two and half years after the
request and cast doubt on whether the exemption could be justified.
29. Mr Lockley (for the Information Commissioner) accepted the s23 arguments of
the Cabinet Office. He noted that at the time of the internal review virtually
nothing was in the public domain. He accepted that for one of the requests
disclosure of the advice would cause inhibition and that the balance lay in non-
disclosure. For the other six the disclosure of the contents of the advice would
have a negligible impact and there was some public interest in transparency in
connection with what would be revealed.
Consideration
30. It is unfortunate that the Minister was inadvertently misled in a material issue
when she gave her opinion to enable the Cabinet Office to withhold the
requested information. The Tribunal was also misled by the Cabinet Office’s
Grounds of Appeal which also stated that the Round Robin List covered
requests falling within (b) – sensitive requests (paragraph 14 above), this error
only became apparent in the hearing.
31. The individual’s rights under FOIA are constitutionally significant. As the
Secretary of State introducing the Bill stated:-
“Unneccessary secrecy in Government and our public services has long been held to
undermine good governance and public administration…the Bill will not only provide
legal rights for the public and place legal duties on Ministers and public authorities, but
will help to transform the culture of Government from one of secrecy to one of openness.
It will transform the default setting from “this one should be kept quiet unless” to “this
should be published unless”.
32. The role of the Cabinet Office within government has over recent decades
become increasingly central to the working of the UK Government. On its
website it explains its role:-
We support the Prime Minister and ensure the effective running of government. We are
also the corporate headquarters for government, in partnership with HM Treasury, and
we take the lead in certain critical policy areas.
33. It states that its responsibilities are:-
• supporting collective government, helping to ensure the effective development,
coordination and implementation of policy
• supporting the National Security Council and the Joint Intelligence
Organisation, coordinating the government’s response to crises and managing
the UK’s cyber security
• promoting efficiency and reform across government through innovation, better
procurement and project management, and by transforming the delivery of
services
• promoting the release of government data, and making the way government
works more transparent
• creating an exceptional Civil Service, improving its capability and effectiveness
• political and constitutional reform
34. Co-ordination of government activity is a key part of the work of the Cabinet
Office as is making the way government works more transparent. It is clear that over
the years there has been a lacuna in public information about how these two
important roles are brought together to ensure that government transparency is
effective across the whole of government. There has been no publicly available
information, such information as was on gov.uk was archived eight years ago,
the Wikipedia entry to which the tribunal’s attention was drawn was also out of
date. The recent public disclosure of information about Clearing House made
on 18 March 2021 (paragraph 19 above) is welcome however it does not impact
on the public interest issue that this tribunal has to resolve. It may be noted that
the Minister in his letter emphasised the Cabinet Office’s vital role in ensuring
compliance with the Freedom of Information Act across Government.
35. Ms Corderoy, in making her request, sought a sample of Round Robins because
that, as far as she was aware, was what the Clearing House did. When, belatedly,
her request was put before a Minister so that the Minister could decide whether
or not to issue a QPO, the submission was factually inaccurate. It conflated two
of the activities of the Clearing House, the Round Robin bulletin listing requests
which it appeared might be sent to multiple departments and the role of
Clearing House in responding to “sensitive” requests. That factual inaccuracy
was not identified to Ms Corderoy or the Information Commissioner until the
first day of the hearing when the witness for the Cabinet Office clarified the
position in cross-examination. The Respondents were placed at some
disadvantage in understanding the criteria upon which the disclosed material
had been placed on the Round Robin lists since, on first examination, some
might seem to be sensitive rather than likely to be targeted at several
departments. The profound lack of transparency about the operation of the
Cabinet Office, might appear, from the material before this tribunal, to extend
to Ministers.
36. While the Cabinet Office has emphasised that individual departments as public
authorities remain responsible for responding to FOIA requests it is noteworthy
that, while they do not follow the advice of Clearing House, Ms Atkins
confirmed “they have to explain”. This provides an example of the level of
scrutiny of other government departments by Cabinet Office.
37. The Supreme court in Kennedy emphasised the significance of FOIA:-
The Freedom of Information Act 2000 was a landmark enactment of great constitutional
significance for the United Kingdom. It introduced a new regime governing the
disclosure of information held by public authorities. It created a prima facie right to the
disclosure of all such information, save in so far as that right was qualified by the terms
of the Act or the information in question was exempt. The qualifications and exemptions
embody a careful balance between the public interest considerations militating for and
against disclosure.
38. On its website the Cabinet Office lists the contents of its publication scheme in
seven categories, the fourth of which is How we make decisions. The Minister in
writing to the Society of Editors has spoken of the Clearing House’s vital role in
co-ordinating FOI work across government, ensuring the constitutional rights
of citizens are respected. Clearing House has a substantial role in this
constitutionally significant work of the Cabinet Office and information about its
existence and an outline of its work, has now, as a result of the Cabinet Office’s
response to the questions raised in this information request, been placed in the
public domain.
39. While the material before the tribunal in both open and closed bundles
amounted to approximately 5000 pages, much of this was repetitious, with open
and closed versions of Round Robins, and the same material included in a
number of iterations of the Round Robin. Ms Corduroy has suggested (based on
the initial position of the Cabinet Office) that the Round Robin contains both
multiple requests and sensitive requests. Ms Atkins in her evidence confirmed
that the function of the Round Robin is to address the issue of multiple requests
and sensitive requests are dealt with separately. The disputed material in this
case has, over time, been reduced and now is confined to the initial Clearing
House advice on 14 requests. The issue for the tribunal is whether this material
should have been disclosed to Ms Corderoy when the other material should
have been disclosed, ie at the time of the internal review in July 2019 (given the
unconscionable delays in handling the request, she would have been entitled to
receive the material in September 2018), long before the publication of general
information about Clearing House. Given all the circumstances then prevailing
– a lack of accurate publicly available information about the constitutionally
significant role in co-ordinating FOI responses there is real weight in the public
interest in disclosure. For seven of these requests Ms Atkins confirmed that the
advice had come from a s23 body. While Ms Morrison valiantly argued that the
National Cyber Security Centre should not be seen as part of GCHQ, it was
difficult to discern a robust legal basis for that submission and the tribunal was
satisfied that the appeal should succeed with respect to these seven items.
40. The Cabinet Office has continued to rely on the QPO provided in February 2020
for the other cases and has emphasised the relatively small amount of
information now withheld and it argued there was small public interest in its
disclosure and sufficient harm to justify non-disclosure under s36. Since that
QPO does rely in part on a factual inaccuracy the conclusion must be subject to
some scrutiny.
41. In arguing for disclosure of all the material Ms Corderoy emphasised the value
of conducting an analysis of the activities of Clearing House, to examine the
quality of its advice, to increase transparency about government handling of
FOIA requests, whether they were blocked and how requests from journalists,
campaigners and researchers were treated. While there may well be some
public interest in these issues the impact of the disclosure of the seven additional
samples would be comparatively modest and a consideration of the actual
contents of the withheld material is essential.
42. The tribunal is satisfied that in one other case there would be a sufficient risk of
inhibition to justify withholding the contents of advice. In respect of the other
six cases the tribunal is satisfied that disclosure of the material, along with the
other 145 cases which it is acknowledged should have been disclosed at the
internal review or earlier, would at that time have had some value in increasing
public understanding of the working of the Round Robin without materially
causing inhibition or otherwise prejudicing the discharge of this function.
43. There is a closed section of this decision.
44. The tribunal draws to the attention of the parties the provisions of the GRC
rules:-
Orders for costs
10.—(1) Subject to paragraph (1A) the Tribunal may make an order in respect of costs
only—
(a) under section 29(4) of the 2007 Act (wasted costs) and costs incurred in applying for
such costs;
(b) if the Tribunal considers that a party has acted unreasonably in bringing, defending
or conducting the proceedings;
Signed Hughes
Judge of the First-tier Tribunal
Date: 19 May 2021
Promulgated 25 May 2021