UKFTT-GRC InformationRights 0.25.5 58906a333e2198c00168b05a5444ce9ca817db7fea2049a2eb2415a033ca4fbf [2022] UKFTT 533 (GRC) 6.0.0
NCN: [2022] UKFTT 00533 (GRC) Appeal Number: EA/2021/0087
First-Tier Tribunal
(General Regulatory Chamber)
Information Rights
Between:
Nicholas Wheatley
Appellant:
And
The Information Commissioner
First Respondent:
And
Parliamentary and Health Service Ombudsman
Second Respondent:
Date and type of Hearing: 1 November 2021; - 17 January, and 10 February 2022.
Panel: Brian Kennedy QC , Marion Saunders and Suzanne Cosgrave ..
Representation:
For the Appellant: Nicholas Wheatley as a Litigant in person.
For the Respondent: Nicholas Martin, Solicitor.
For the Second Respondent: PHSO.
Decision: The Tribunal dismisses the appeal.
REASONS
Introduction:
[1]
This decision relates to an appeal brought under section 57 of the Freedom of Information Act 2000 (“the FOIA”). The appeal is against the decision of the Information Commissioner (“the Commissioner”) contained in a Decision Notice (“DN”) dated 1 March 2021 (reference IC-45092-TBX4), which is a matter of public record.
Factual Background to this Appeal:
[2]
Full details of the background to this appeal, the complainant’s request for information and the Commissioner’s decision are set out in the DN. The appeal concerns a request for information about the Parliamentary and Health Service Ombudsman (“PHSO”) and any documentation mentioning the term ‘functus officio’. In response, the Commissioner held that the PHSO is entitled to refuse to disclose the requested information in accordance with one or more of the exemptions cited; sections 40(2), 42(1) and 44(1)(a) of the FOIA.
[3]
The information withheld concerns documentation including inter alia emails, notes, etc for the period 1 August 2016 to 1 February 2018, that were not previously produced for FOI FDN-275088.
[4]
The Commissioner maintains the position set out in her DN; namely that the PHSO is entitled to refuse to disclose the requested information in accordance with one or more of the exemptions cited; sections 40(2), 42(1) and 44(1)(a) of the FOIA. The Appellant now appeals against the DN. The Commissioner opposes the appeal and invites the Tribunal to uphold the DN.
History and Chronology
[5]
On the 7 June 2019 the Appellant made a refined request to the PHSO for information not previously produced for FOI FDN-275088.
The PHSO responded on 27 June 2019 stating that in accordance with section 10(3) of the FOIA it was extending time for compliance by a period of 20 working days to consider the public interest test under section 42 of the FOIA.
The PHSO responded further on 1 August 2019, refusing to disclose the requested information in accordance with section 40(2), 42(1) and 44(1)(a).
An internal review was requested by the complainant on 23 August 2019.
After conducting an internal review, the PHSO notified the Appellant that it upheld its application of sections 40(2), 42(1) and 44(1)(a) of the FOIA.
[6]
Following the Commissioner’s investigation, she published the DN on the 1 March 2021, stating that she is satisfied that the withheld information is all exempt from disclosure in accordance with one or more of the exemptions cited by the PHSO. The Commissioner notes that a small percentage of the withheld information is the Appellant’s own personal data. Further, that whilst there is no record of processing a subject access request in the last three years, the PHSO should engage with the complainant to see if he requires access to this information.
[7]
Legal Framework
S 40 FOIA – Personal Information
(1)
Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject.
(2)
Any information to which a request for information relates is also exempt information if—
(a)
it constitutes personal data which does not fall within subsection (1), and
(b)
the first, second or third condition below is satisfied.
(3A) The first condition is that the disclosure of the information to a member of the public otherwise than under this Act—
(a)
would contravene any of the data protection principles, or
(b)
would do so if the exemptions in section 24(1) of the Data Protection Act 2018 (manual unstructured data held by public authorities) were disregarded.
(3B) The second condition is that the disclosure of the information to a member of the public otherwise than under this Act would contravene Article 21 of the GDPR (general processing: right to object to processing).
(4A) The third condition is that—
(a)
on a request under Article 15(1) of the GDPR (general processing: right of access by the data subject) for access to personal data, the information would be withheld in reliance on provision made by or under section 15, 16 or 26 of, or Schedule 2, 3 or 4 to, the Data Protection Act 2018 , or
(b)
on a request under section 45(1) (b) of that Act (law enforcement processing: right of access by the data subject), the information would be withheld in reliance on subsection (4) of that section.
(5A) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1).
(5B) The duty to confirm or deny does not arise in relation to other information if or to the extent that any of the following applies—
(a)
giving a member of the public the confirmation or denial that would have to be given to comply with section 1(1)(a)—
(i)
would (apart from this Act ) contravene any of the data protection principles, or
(ii)
would do so if the exemptions in section 24(1) of the Data Protection Act 2018 (manual unstructured data held by public authorities) were disregarded;
(b)
giving a member of the public the confirmation or denial that would have to be given to comply with section 1(1) (a) would (apart from this Act ) contravene Article 21 of the GDPR (general processing: right to object to processing);
(c)
on a request under Article 15(1) of the GDPR (general processing: right of access by the data subject) for confirmation of whether personal data is being processed, the information would be withheld in reliance on a provision listed in subsection (4A)(a);
(d)
on a request under section 45(1) (a) of the Data Protection Act 2018 (law enforcement processing: right of access by the data subject), the information would be withheld in reliance on subsection (4) of that section.
(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7)
In this section—
“the data protection principles” means the principles set out in—
(a)
Article 5(1) of the GDPR, and
(b)
section 34(1) of the Data Protection Act 2018 ;
“data subject” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act );
“the GDPR”, “personal data”, “processing” and references to a provision of Chapter 2 of Part 2 of the Data Protection Act 2018 have the same meaning as in Parts 5 to 7 of that Act (see section 3(2) , (4), (10), (11) and (14) of that Act ).
(8)
In determining for the purposes of this section whether the lawfulness principle in Article 5(1)(a) of the GDPR would be contravened by the disclosure of information, Article 6(1) of the GDPR (lawfulness) is to be read as if the second sub-paragraph (disapplying the legitimate interests gateway in relation to public authorities) were omitted.
[8]
Section 42 of the FOIA states that information in respect of which a claim to legal professional privilege (“LPP”) could be maintained in legal proceedings is exempt information.
[9]
Section 44(1)(a) of the FOIA provides that information is exempt information if its disclosure is prohibited by or under any enactment. It is an absolute exemption so the public interest balance does not apply.
[10]
Section 3(2) of the Data Protection Act (“DPA”) defines personal data as: “ any information relating to an identified or identifiable living individual ”.
Article 5(1)(a) of the General Data Protection Regulations (GDPR) states that:
“Personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject”.
Article 6(1)(f) of the GDPR states:
“ processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child ”
[11]
The public interest test to be applied to Legal Professional Privilege was considered by the First-tier Tribunal in Bellamy v the Information Commissioner and the DTI (EA/2005/0023):
“there is a strong element of public interest inbuilt into the privilege itself. At least equally strong countervailing considerations would need to be adduced to override that inbuilt public interest.
[12]
Section 11(2) of the Parliamentary Commissioners Act (PCA) states:
“(2)
Information obtained by the Commissioner or his officers in the course of or for the purposes of an investigation under this Act shall not be disclosed except –
(a)
for the purposes of the investigation and of any report to be made thereon under this Act ;
(aa) for the purposes of a matter which is being investigated by the Health Service Commissioner for England or a Local Commissioner (or both);
(b)
for the purposes of any proceedings for an offence under the Official Secrets Acts 1911 to 1989 alleged to have been committed in respect of information obtained by the Commissioner or any of his officers by virtue of this Act or for an offence of perjury alleged to have been committed in the course of an investigation under this Act or for the purposes of an inquiry with a view to the taking of such proceedings; or
(c)
for the purposes of any proceedings under section 9 of this Act ; and the Commissioner and his officers shall not be called upon to give evidence in any proceedings (other than such proceedings as aforesaid) of matters coming to his or their knowledge in the course of an investigation under this Act .
Commissioner’s Decision Notice
[13]
The Commissioner obtained a copy of the withheld information and considered the submissions of both parties. Having done so she concluded that the withheld information was exempt from the disclosure on the basis that it contained information, which was exempt under one, or more of the following exemptions detailed below.
[14]
Personal Data :
1)
Where applicable the withheld information contained information relating to a number of complaints brought to the PHSO which either directly refers to the complainants or contains information from which those complainants could be identified, either from that information alone or in combination with other available information. Accordingly the information was personal data (DN [20]).
2)
The Appellant had a legitimate interest in the information sought regarding ‘functus officio’ and this interest could not be addressed by less intrusive means (DN [33]).
3)
However the data subjects would expect the information to remain private, and disclosure would be an unwarranted intrusion into their private lives (DN [38]). Accordingly there was insufficient legitimate interest to outweigh the data subjects’ right to privacy and accordingly disclosure would be unlawful
and s.40(2) FOIA was engaged (DN 40]).
Legal Privilege :
4)
Where applicable the withheld information constituted advice or litigation privilege and was therefore subject to legal professional privilege. The relevant withheld information comprised of confidential communications between a client and lawyer for the dominant purpose of seeking or giving legal advice, some for-litigation purposes and some not. Accordingly s.42 (1) FOIA was engaged (DN [46]).
5)
However whilst there was a public interest concerning the PHSO’s consideration of ‘functus officio’ (DN [52] – [53]) the Commissioner considered the public interest to favour maintain the exemption. This was on the basis that the public interest in this issue was not sufficient to override the strong public interest in preserving legal privilege (DN [56]).
Prohibition on Disclosure :
[15]
Where applicable the withheld information fell within the relevant statutory definition, as it was information obtained in the course of, or for the purposes of, an investigation, and discussed during and for the purposes of that investigation (DN [64]). Accordingly s.44(1)(a) FOIA was engaged (DN [65]).
Grounds of Appeal
[16]
The Appellant’s Grounds of Appeal detailed the factual matrix underlying his request and considered the various public interest considerations in favour of disclosing the withheld information. The Appellant went on to address the engagement of the relevant exemptions outlined by the Commissioner. In response to the Commissioner’s view on the legal privilege, the Appellant contended that legal privilege relating to any legally privileged information shared by the PHSO will have been waived with complainants without restrictions and that the substance of legal advice has previously been disclosed. The Appellant argued that public interest favours disclosure.
[17]
The Appellant averred that only communications in the course of or for the purpose of an investigation will fall within the exemption. The Appellant stated that, where possible, personal data should be redacted in order for the withheld information to be disclosed.
The Commissioner’s Response
[18]
The Commissioner maintained her position adopted in the DN regarding the disclosure of the withheld information and provided observations in respect of the Appellant’s Grounds of Appeal. In relation to grounds 1 and 2, the Commissioner reiterated that the withheld information contained confidential communications between the PHSO and its lawyers for which legal privilege can be relied upon. Further, that those communications were for the purpose of seeking or giving legal advice, some of which was for litigation purposes.
[19]
In relation to the public interest, the Commissioner referred to the Tribunal’s decision in Bellamy v Information Commissioner & the Secretary of State for Trade and Industry (EA/2005/0023) (“Bellamy”) at paragraph [35] where the Tribunal held:
“a strong element of public interest inbuilt into the privilege itself” and that “at least equally strong countervailing considerations would need to be adduced to override that inbuilt public interest....it is important that public authorities be allowed to conduct a free exchange of views as to their legal rights and obligations with those advising them without fear of intrusion, save in the most clear case...” Endorsed in DBERR v O’Brien v IC [2009] EWHC 164 QB (“DBERR”).”
[20]
The Commissioner referred the Tribunal to the importance of preserving the strong public interest in preserving legal privilege as recognised by the Upper Tribunal in DCLG v Information Commissioner & WR [2012] UKUT 103 (AAC) . The Commissioner adopted the aforementioned approach and submitted that she had not erred in attributing strong weight on to the public interest in preserving legal privilege.
[21]
The Commissioner argued the persuasive authority of M Boyce v Information Commissioner & PHSO EA/2019/0032, to state that it is clear that the public interest similarly falls in favour of maintaining the exemption.
[22]
The Commissioner argued that the Appellant does not appear to dispute that it would be unlawful to disclose the personal data contained within the withheld information. However, the Commissioner made reference to condition 6(1)(f) GDPR which states that disclosure is “ necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child”. Therefore, any disclosure of personal data in this instance would be unlawful.
[23]
The Commissioner asserted, regarding any redaction exercise, that a significant burden would be imposed on the PHSO. Further, that if the PHSO’s reliance on s.42 and s.44 FOIA was to be upheld, there would be little value in the remaining information.
Appellant’s Reply:
[24]
The Appellant contended that the PHSO have considerable experience of anonymising personal data. The Appellant provided an example of a published anonymised decision to further the point. In relation to prohibitions on disclosure, the Appellant contends that if an entire document is prohibited from disclosure, as a result of a small amount of information contained within that document, by section 15(1) of the Health Service Commissioners Act 1993 ( Section 32(2) of the Local Government Act 1974 equivalent), then an organisation could protect any document, simply by including a small amount of information obtained during the course of any investigation.
[25]
The Appellant argued that discussions concerning ‘functus officio’ do not relate to any information acquired during the course of any investigation. Further, that it would not be in the spirit of the FOIA to prohibit any document containing ‘functus officio’ from disclosure. The Appellant referred to Commission for Local Administration in England v IC (EA/2007/0087, 11 March 2008) to support his argument.
[26]
In addressing the public interest, the Appellant argued against the Commissioner’s reliance on M Boyce v Information Commissioner and PHSO (EA/2019/0032) and stated that, in the present case, “there is no public statement of policy on the PHSO’s website and no further clarity can be obtained from PHSO caseworkers since familiarity with the principle of ‘ functus officio’ is not a necessary requirement for a caseworker to perform their duties”.
[27]
The Appellant referred by way of an example to his own PHSO complaint which he said has been waiting for 5 years without a review. He maintains that he has been subjected to the arbitrary process with no superior body to appeal to. The Appellant referred to David Platts v Information Commissioner EA/2020/0279, in which the Tribunal allowed the appeal and stated as follows:
“The Ombudsman has a constitutionally significant role in potentially providing redress to citizens who have suffered injustice through maladministration by Government departments or by maladministration or failures of service in the NHS. These are significant rights for citizens. The practical limits of these rights are matters of importance for citizens to understand. In this case the substratum of the information request relates to the circumstances in which PHSO can investigate possible maladministration by the Pensions’ Ombudsman. The limits of the scope of PHSO to investigate another Ombudsman is a matter of public interest. While the advice may be old and applicable in limited circumstances it has been incorporated in general guidance to staff of PHSO as being a matter of general applicability in appropriate circumstances and not related to an individual case. It therefore appears to be a statement of the law defining when a citizen can have access to redress. In the circumstances of this case the question of transparency to a citizen as to their rights outweighs the need to protect legal professional privilege”.
[28]
The Appellant, again, referred to M Boyce v The Information Commissioner EA/2019/0334, for the purposes of contending that it is in the public interest that the legal advice be disclosed in order to explain how the “ PHSO’s internal review is in a muddle and needs sorting out. ”
[29]
The Appellant made reference to the Public Service Ombudsman bill drafted in December 2016 which would have merged PHSO with another Ombudsman but he highlighted that there is no provision in that draft Bill, which concerns the review process, or that, clarifies the position of the Ombudsman once he is ‘ functus’. Further, that the Chancellor of the Duchy of Lancaster indicated in a letter dated 9 September 2020 addressed to the Chair of the Public Accounts and Constitutional Affairs Committee that the government has temporarily shelved the planned merger of the two Ombudsmen.
[30]
The Appellant contended that whilst acknowledging “the strong element of public interest in withholding legal advice, I submit that it is outweighed by the countervailing considerations….in particular the ‘muddle’ of the current PHSO review process” and the “unaccountable sidestepping of the legal principle of ‘functus officio’ based on legal advice”.
Second Respondent’s Response
[31]
The PHSO sought a direction under Rule 14(6) that the substantive response to the questions posed by the Tribunal relating to the specific exemption should be withheld under Rule 14(6).
[32]
The PHSO maintained her position, which is subject to the appeal and upheld by the Commissioner in her DN.
[33]
The PHSO confirmed that the documents engage legal professional privilege and are therefore exempt. Further, that some documents relate to third parties. Additionally, some documents relate to PHSO investigations. The PHSO averred that it is not possible to provide further clarification on the specific documents, as title or details of the content would be required. This is problematic and would effectively defeat the purpose of the proceedings. The PHSO contended that this needs to recognised as a complicating factor in this case for the PHSO.
Appellant’s Final Submission~:
[34]
The Appellant (in his Submission 3 dated 7 September 2021 contended that the PHSO and the Commissioner have made baseless allegations in relation to the request. The Appellant stated that these allegations are shocking and wholly unacceptable. The Appellant refers to the email at section D86 of the open bundle:
“Mr Wheatley has a history with the PHSO of submitting frequent requests for information, the majority of which are complex and contain multiple questions. Quite often the requests overlap and are variations of previously submitted requests. Consequently we have previously declared some of his requests as vexatious”
“Mr Wheatley is an experienced user of the FOIA process and knows how to manipulate and resubmit requests if he is refused information. He appears to work in conjunction with other frequent requestor, with similar objectives, as is evidenced in ‘What do they know’. All of whom appear to be singularly fixated upon the PHSO and more often than not submit multiple requests following the publication of PHSO public information such as the annual report”.
“It is worthy of note that Wheatley along with the other contributors to Wheatley’s ‘Functio’ thread, are responsible for in excess of 30% of FOIA requests submitted to the PHSO and take up a significant portion of our resources at considerable expense to the public”
“However, we accept that FOIA is purpose and requestor blind and always assess on a ‘case by case’ basis, but it is abundantly clear that requests received from Wheatley are very seldom made in the greater public interest”.
[35]
The Appellant stated that only 3 of his 19 requests were refused and whilst 19 requests may be considered excessive the Appellant is a member of PHSOtheFACTS which attempts to hold the PHSO accountable, through FOIA requests. Further, the Appellant disputed that he works in conjunction with other requestors. The Appellant contended that he only once submitted multiple requests which was by coincidence. Further, that there was an 18-month period in which a request was not submitted. The Appellant claimed that the PHSO have an interest in claiming that requests are not made in the public interest.
[36]
The Appellant requests the disclosure of documents listed on pages D108 and D109: 11, 12, 13, 16, 17, 28, 29, 30, 38, 51, 52, 53, 54. Further, the Appellant requests the name of the disclosed PHSO staff member who made the allegations against the Appellant so that an official complaint could be lodged with the PHSO (we indicate that the latter matter of a request for identification of an individual within the PA for the purpose of making a complaint is not within the remit of the Tribunal in the appeal before us).
[37]
In accordance with the Tribunal powers under s58 (2) FOIA the Tribunal considered all the findings of fact upon which the decision was based. The Tribunal used its powers under Rule 2 (4) of The Tribunal Procedure Rules 2009 to request further documents. In addition the Tribunal joined the Public Authority as second respondent by way of Open Case Management Directions 1 November 2021 and indicated that an Oral hearing concerning the Withheld material may be necessary.
[38]
The Tribunal also directed as follows; ” it is also imperative that the Second Respondent make it clear in Open or Closed submissions (as required) which documents have been determined, or are to be determined, to be out of scope with adequate reasons in each case. There appears to be some confusion and/or duplication of documents, which require explanation.”.
[39]
The Second Respondent provided additional Closed Submissions dated 23 December 2021, which included information and clarification, which would not have been available to the ICO at the time of her investigation.
[40]
The Tribunal by way of further Closed Case Management Directions dated 17 January 2022, sought further clarification in relation to some specific issues concerning the withheld material. This in turn gave rise to Further Closed Submissions by the Second Respondent, on 7 February 2022 with information that also would not have been available to the ICO at the time of her investigation.
[41]
The impact of this assistance and further information provided late by the Second Respondent, meant that the Tribunal was assisted in making its decision on reasoning by the Public Authority that was not available to the ICO at that time of her investigation for a set of withheld information which also differed from that which she had considered. ( See R v Evans as the Supreme Court made clear in R (Evans) v Attorney-General [2015] AC 1787 (SC), at §73: … facts and matters and even grounds of exemption may, subject to the control of the Commissioner or the tribunal, be admissible even though they were not in the mind of the individual responsible for the refusal or communicated at the time of the refusal to disclose (i) if they existed at the date of the refusal, or (ii) if they did not exist at that date, but only in so far as they throw light on the grounds now given for refusal … “)
Conclusion:
[42]
The Tribunal are grateful to the parties for their input although there seems again to be some confusion in the identification of documents that we have been asked to consider. On this, our third attempt, we have spent considerable time to properly identify the information that is within the scope of the request and then identify which Exemptions have or can be properly applied. The Tribunal found it difficult to determine what information was in and out of scope and why some documents had been provided at all. The Second Respondent were asked to provide rationale for the inclusion of each document and the applicable exemption. Upon considering this Tribunal was still unable to reconcile several documents as being within scope, specifically within the timeframe. Additional directions to Second Respondent asking for clarification of certain documents have resulted in Second Respondent agreeing that a small number of documents, which had been deemed out of scope were in fact in scope and some in scope were not by virtue of the dates.
[43]
The Second Respondent provided detail of which exemptions applied to which documents in each case. The Tribunal have been able to consider the exemptions in relation to the documents and find that these have been correctly applied. The Appellant argues that the S44 exemption which is absolute (and not subject to the Public Interest test) cannot apply to information, which was produced after the conclusion of a PHSO investigation. The Tribunal agrees with the IC that this information is within scope as it is information, which was produced as a result of a PHSO investigation and would not otherwise exist. It is therefore part of the investigation process. S42 is claimed as the only exemption for a small number of documents and the Tribunal is satisfied that this is correctly applied. A significant number of the documents attract both S42 & S44. Whilst S42 requires the public interest test the Tribunal accepts the arguments from the IC and adopt the Commissioner’s reasoning (DN56) on the balancing test and does not find anything to alter this.
[44]
A number of documents, which the Appellant has specifically asked for in his 7 September 2021 submissions, are exempt by virtue of them being his own information and should be dealt with by a Section 40 Subject Access Request. We find that the Second Named Respondent has been diligent in providing documents, which ‘might’ be within scope and there is no suggestion that documents have been withheld. Some documents have been included which are attachments to another document, or an email. The Tribunal has considered these separately i.e. the document itself then the attachments.
[45]
The Second Respondent provided a considerable amount of Closed material. The material divided into sections including a significant amount said not to be in scope. It was not clear to the Tribunal, which documents were fully within scope of the request, and which exemptions claimed applied to each document. The Tribunal sought further clarification from public authority who whilst having been cooperative and clearly willing to provide assistance did not fully resolved the position of which of the documents are within scope of the request and why, on the first attempt. After the second request for assistance by the Tribunal, the public authority have identified documents, which should have been categorised as within scope and recommended they be included within that section of the withheld material. The public authority further provided explanations concerning the section of material regarded as being out of scope of the request and the Tribunal accepted this.
[46]
The Tribunal, having spent many hours working through the documents, have decided to adopt by reference to the original request the following approach;
a)
For a document to be within scope it must clearly be evident that it was produced with a date which falls within the date range specified in the request 1 August 2016 to 1 February 2018. (or if not itself dated other corroborating evidence was available and accepted).
b)
Documents, which do not meet that test, are not within scope of the request – more will be said within the closed appendix to the Decision.
c)
Where there is a covering document supplied which does not fall within that date range – by virtue of its internal date - then any and all attachments to that document are reviewed individually by reference to their own internal date and only attachments with a date within the date range are considered further against the request.
d)
A covering document would not be within scope by virtue of having an attachment, which is within scope.
e)
For a document determined to be within the date range to satisfy the second limb of the request the words “functus officio” must appear on the face of that document.
f)
The Tribunal consider the correct interpretation of the third part of the request i.e. for the material not to have “ previously been produced for FOI FDN-275088” means not to have been provided to the Appellant in that matter i.e. provided to him in response to that request.
Having carried out this exercise we then proceeded to take the documents provided in the sections presented to us and considered each in turn and the exemptions that applied. It became apparent during the course of the appeal that some of these documents can attract exemption through section 21, however on close examination of those documents we are satisfied they are out of scope.
[47]
In relation to the rest of the information held within scope, we confirm we are satisfied that in the case of each document, we have determined which of the exemptions are properly applied and the following exemptions (in some cases more than one) apply; Section 44, being an absolute exemption Section 2 and Section 40 . We accept, endorse and adopt the reasoning of the Respondents on the Public Interest test favouring non-disclosure.
[48]
In order to effect the protection of the exemptions being relied on, we have not identified the specific documents.
[49]
Whilst the DN can be criticised, as there was a lack of clarity concerning which exemptions had been applied to each of the withheld documents and an appeal was justified in our view, the Tribunal have carefully considered all the withheld information in great detail, and for the above reasons dismiss the appeal.
Brian Kennedy QC 14 March 2022.
Promulgation Date: 6 April 2022