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Cite as: [2007] UKIT EA_2006_6, [2007] UKIT EA_2006_0006

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Appeal Number: EA/2006/0006
Appeal Number: EA/2006/0006
Freedom of Information Act 2000 (FOIA)
Heard at Procession House, London, EC4
Decision Promulgated 19th February 2007
BEFORE
DEPUTY CHAIRMAN
David Farrer Q.C.
and
LAY MEMBERS
Roger Creedon
and
Michael Hake
Between
THE DEPARTMENT FOR EDUCATION AND SKILLS
Appellant
and
INFORMATION COMMISSIONER
Respondent
and
THE EVENING STANDARD
Additional Party
Representation:
For the Appellant:                     Jonathan Crow Q.C. and Jason Coppel
For the Commissioner:            Timothy Pitt - Payne
For the Evening Standard: Antony White QC
1

Appeal Number: EA/2006/0006
Subject to paragraph 92, the Tribunal upholds the decision notice dated 4th. January, 2006
and dismisses the appeal. The appellant must therefore send the information which remained
disputed at the hearing,, the subject of the request under section 1(1) FOIA, to the
complainant within 30 days of the date of promulgation of this decision.
Reasons for Decision
Introduction
1     The appellant (“DFES”) is the central government department responsible, among
many other tasks, for central government funding of schools. This is an issue of great
public importance hence political sensitivity. The present government gave the
highest priority to education when assuming power in 1997. It is therefore to be
expected that reports of schools in financial difficulties will attract considerable
attention from the media.
2     Since the early 1990s schools have acquired much greater responsibility for their own
financial management. Over the same period the proportion of central government
funding of local authority services, including education has increased. At the time with
which this appeal is concerned, all such funding was dealt with by an annual general
local authority settlement which was based on stated assumptions by central
government as to local authority expenditure on its services and the sources from
which it expected them to be funded. The settlement stated for each authority the
distribution of assumed expenditure. The element attributed to education was known
as the Standard Spending Assessment (the “SSA“ ).
3     Authorities were not, however, obliged to adopt the prescribed spending patterns.
Subject to the ring – fencing of a minor part of the settlement, authorities were in
general free to spend more or less than the SSA on funding their schools and
retained the power to set budgets for individual schools.
4     Ministers of both the present government and its Conservative predecessor chafed at
their inability to enforce their own assessments of schools` needs. Since 1997 the
government has put pressure on local authorities to spend at or above the level of the
SSA, hence to pass on to schools in full the increase in SSA, a process known as
“passporting”.
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Appeal Number: EA/2006/0006
5      April 2003 saw the introduction of a new scheme of assessment and funding of local
authority services with a fresh set of names. Provision for schools was made by way
of a Schools Formula Spending Share (“SFSS”). However, authorities were still free
of any obligation to apply SFSS exclusively to schools. The system of distribution
among authorities was revised and there were substantial changes in ring – fenced
grants. For some schools these changes resulted in budgets for 2003 – 4 which were
lower than they had expected.
6     In March, 2003, at a teachers` conference, Charles Clarke, then secretary of state for
education, was confronted with protests as to the budgetary difficulties of certain
schools. The media reported a “funding crisis” and public concern mounted rapidly.
Whether there was indeed such a crisis and, if there was, how far it reached and what
caused it, are questions which we are not required to consider.
7     Inevitably, these events provoked considerable activity within DFES. It was essential
that the scale of any problem be assessed, that its causes be identified, that
immediate problems be tackled and that any flaws in the current funding policy be
recognised. Further policy proposals must then be developed for future funding. In
the months following, a series of internal discussions of these matters took place and
were recorded in departmental minutes.
8     In May, 2003 Mr. Clarke announced measures designed to mitigate immediate
problems, in particular the permitted use of capital funds for revenue expenditure. On
14th. July, 2003, he gave evidence regarding these matters to a select committee of
the House of Commons and announced to the House fresh funding proposals for the
next two financial years. We have been supplied with the text of both. The Select
Committee material was received towards the end of the hearing, after oral evidence
had been given and at our request. These proposals were elaborated in October,
2003. It will be necessary to touch on later developments at a later stage of this
judgment.
The request for information
9     Dominic Hayes was and is the education correspondent of the Evening Standard.
(“ES”). On 4th.January, 2005, in accordance with s. 1 of The Freedom of Information
Act, 2000 (“FOIA”)
, he submitted a request for information to DFES in the following
terms:
“Please send the copies of all minutes of senior management meetings at the
Department for Education and Skills from June 2002 to June 2003 regarding the
setting of school budgets in England.”
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Appeal Number: EA/2006/0006
10 On 21st. January, 2005 DFES requested an extension of time to 8th. February, 2005.
On 8th. February, 2005, DFES refused his request. Its letter indicated that it treated
the request as relating to minutes of meetings of the DFES Board, which consists of
the Permanent Secretary and the Heads of Directorates and of the Schools
Directorate Management Group ( the “SDMG” ), which is the next most senior
committee of DFES. It invoked s. 35(1) (a) of FOIA, a provision which this judgment
will consider in due course. It then referred to the public interests for and against
disclosure and set out the interests which it had considered. It informed him of his
right to a review and gave details of the officer to contact. By e mail the same day he
requested such a review, challenging the assertion that the requested information fell
within s.35 (1) (a).
11         By letter dated 15th. April, 2005, Paul Wright of the School and LEA Funding division
of DFES informed Mr. Hayes that some of the requested information would be
disclosed following review but that the reasons given in the letter of 8th. February held
good for the remainder. He set out the DFES view as to the ambit of s. 35(1) (a) and
the relationship between formulation and development of a policy on the one hand
and implementation on the other. The information then disclosed was highlighted in
green in a document provided for the purposes of the appeal to the Tribunal and the
Information Commissioner (“the Commissioner”) but not ES.
12         On 22nd. November, 2006, shortly before the hearing, DFES conducted a further
review which resulted in further disclosure of material. This was highlighted in pink in
the document referred to in paragraph 12. The upshot was a considerable reduction
in the volume of material directly in issue among the parties. For reasons which will
be spelt out later in this judgment, the broader issues which we were required to
consider were unaltered.
The complaint to the Information Commissioner
13         Mr. Hayes` complaint to the Commissioner was dated 5th. May, 2005. It embraced all
the information which DFES had refused to disclose. It concentrated on DFES ` broad
interpretation of s.35 (1)(a) and its alleged failure to distinguish policy – making from
operational decisions. It emphasised, clearly rightly, the sustained public interest in
the issue to which the information related.
14         The Commissioner `s Decision Notice was issued on 4th. January, 2006. It concluded
that, save as to the minutes of one board meeting, the information requested fell
within s. 35(1)(a) or, in one case, s. 35(1)(b). That last matter is moot since the
information involved was disclosed as part of the “pink disclosure”; we heard no
argument and make no ruling upon it. The Commissioner also rejected an argument
based on FOIA s.40. In its notice of appeal and before us the DFES disowned any
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Appeal Number: EA/2006/0006
such argument and denied that it had ever been a matter for the Commissioner `s
decision. We deal with the point discretely and briefly at paragraphs 89 - 92.
15         However, as to all the information falling within s 35(1)(a), the Commissioner decided
that the public interest in maintaining the exemption did not outweigh the public
interest in disclosure. He therefore ruled that DFES had contravened FOIA s. 1 and
ordered disclosure within thirty days of all the information requested, therefore
including the information later highlighted in pink. Put summarily, the
Commissioner `s reasons were as follows: -
(i)          As to the application of s. 35(1 )(a) : -
•     Most of the information related to the formulation of policy;
•     Some related to the refining or amending of existing policy; that amounted to
policy development rather than mere implementation of present policies;
•     Where minutes relate to the formulation or development of policy, the names
of officials identified in the text are also related to such formulation or
development ;
•     All such material was therefore within the reach of s.35(1)(a) ;
•     As to one board meeting, the minutes provided, for the most part, a summary
of the background to the perceived funding problem. To that extent they did
not attract the qualified exemption.
(ii) As to the public interests in maintaining the exemption or disclosing the
information : -
■      He recognised the public interest in ensuring frank honest debate and advice
in the interests of robust and well - considered policy - making. He did not
consider, however, that this information required such protection nor that its
disclosure would damage the formulation of policy.
■     He accepted the importance of proper record - keeping but thought that the
maintenance of standards in the face of publicity was a management issue.
■     He was unconvinced by the DFES argument that such disclosure would have
a wide - ranging “chilling effect” right across the civil service, stemming from
a concern that all policy discussions might now be open to scrutiny. He saw
this approach as tending to treat the exemption as absolute.
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Appeal Number: EA/2006/0006
■     He considered that any need to maintain the exemption was weakened by
the passage of time.
■     He did not believe that the disclosure of the names of officials would
compromise their status in the present case.
■     On the other side, FOIA signalled a new approach to the release of
information in the interests of public debate and informed opinion. If a “chilling
effect” resulted, it was the consequence of the Act, not the decisions of the
Commissioner or the Tribunal.
The appeal to the Tribunal
16 The DFES gave notice of appeal dated 1st. February, 2006. The grounds were
concisely set out: -
♦          The Commissioner was wrong to exclude any part of the minutes from the
application of s.35 (1)(a).
♦          He erred in his approach to the application of the public interest test;
Parliament `s judgment was that such information was as a class worthy of
protection from disclosure. Whether particular information should be
disclosed depended on the public interest balancing test. The Commissioner
had proceeded on the wrong basis.
♦          He gave too little weight to the impact on candour of policy discussion, record
- keeping and the wider effects on government policy - making.
♦          As to factors specific to this information, the minutes directly evidenced the
process of formulation or development of policy; much information on these
issues had already been published. It related to recent policy - making and
contained the names of officials.
♦          He identified no reasons for disclosure.
17         In his Reply, dated 3rd. March, 2006, the Commissioner refuted these contentions and
asserted that he had advanced three broad policy reasons for disclosure. We shall
examine his more detailed development of these arguments in written and oral
submissions, later in this judgment.
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Appeal Number: EA/2006/0006
18         On 24th. May, 2006, the Tribunal made an order for joinder of ES. ES lodged a written
submission dated 25th. August, 2006. It suffered the inevitable disadvantage that it
had not seen the information in dispute. Nevertheless, as to s.35 (1)(a), it
emphasised the distinction between formulation or development on the one hand and
implementation or analysis on the other. It asked the Tribunal to form its own
judgement as to the application of s.35 (1)(a) as to all the undisclosed material; we
have done so. It disputed the Commissioner `s acceptance that the names of civil
servants could be covered. On the weighing of public interests ES broadly supported
the Commissioner `s position. All three parties lodged further written arguments
amplifying their reasoning in accordance with the Tribunal `s directions. The
Commissioner `s final submissions on the evidence taken in the absence of ES and
the submissions of the DFES in Reply were also, by agreement, made in writing and
were received by the Tribunal within seven days of the end of the oral hearing. We
have considered all the arguments which they deploy. We shall refer only to some of
them when reviewing the competing submissions which were addressed to us at the
hearing. That should not be seen as an indication that others were ignored.
The questions for the Tribunal
19         The jurisdiction of this Tribunal is derived from FOIA s. 58, which reads as follows:
58. - (1) If on an appeal under section 57 the Tribunal considers-
(a) that the notice against which the appeal is brought is not in accordance with
the law, or
(b) to the extent that the notice involved an exercise of discretion by the
Commissioner, that he ought to have exercised his discretion differently,
the Tribunal shall allow the appeal or substitute such other notice as could have
been served by the Commissioner; and in any other case the Tribunal shall
dismiss the appeal.
(2) On such an appeal, the Tribunal may review any finding of fact on which the
notice in question was based.
20 Certain fundamental matters of law affecting the Tribunal `s jurisdiction were agreed
by all parties, namely:
(i)          Whether the public interest in maintaining an exemption outweighs the public
interest in disclosure is a matter either of law or of mixed law and fact. We
shall refer in this judgment to exemptions to which s.2 (2)(b) applies as
“qualified exemptions” .
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Appeal Number: EA/2006/0006
(ii)         The Tribunal must therefore consider the Commissioner `s decision on the
public interest and substitute its own if it thinks that he was wrong. [ see
Hogan and Oxford City Council v Information Commissioner ( EA/2005/0026
and EA//2005/0030
]. It is not limited to the equivalent of a judicial review.
(iii) It is entitled to take account of all the evidence before it, whether or not it was
available to the Commissioner when he took the decision under review.
(iv) The competing public interests must be assessed by reference to the date of
the Request or, at least around that time. This is particularly important where
considerable time has elapsed and the timing of the disclosure requested
may be a significant factor in deciding where the public interest lies.
Those principles correspond closely to those set out at paragraph 14 of the recent
judgment of this Tribunal, differently constituted, in Guardian Newspapers and Brookes
v The Information Commissioner EA/2006/0010 and 0013.
21 The following issues require determination on this appeal
(i)
How broadly should FOIA s.35 (1)(a) be interpreted ?
(ii)         Does it apply to all or any of the information in dispute?
(iii) If, or in so far as it does apply, what is the correct approach to the weighing of
conflicting public interests in relation to disclosure?
(iv) If, or in so far as it does apply, what are the public interests for and against
(a)         maintaining the exemption and
(b)         disclosing the information
and does (a) outweigh (b) ?
(v) What, if any, ruling is required on the s.40 point?
Evidence
22 The DFES called three witnesses :
Andrew, Lord Turnbull, formerly Cabinet Secretary and head of the civil service.
8

Appeal Number: EA/2006/0006
Mr. Paul Britton, Director General of the Domestic Policy Group in the Cabinet Office.
Mr. Dugald Sandeman, a Director in DFES with responsibilities for all aspects of
school funding. Though not holding that position at the material time, he was fully
familiar with the policy issues involved.
Plainly, these witnesses offered an unrivalled experience of the workings of
Government Departments at the most senior levels, specifically of the interaction of
civil servants with ministers.
23      The Commissioner called no evidence.
24      ES called Mr. Hayes, the original complainant.
25      In respect of each witness the usual verified statement was served on the Tribunal and
other parties before the hearing. Each was cross examined upon it before us. To Mr.
Britton `s witness statement were attached four instructive annexes, dealing
respectively with the need for frankness and candour, hence confidentiality in
ministerial discussions, the same need in relation to Officials, the danger of government
by cabal and the effect of disclosure on difficult policy decisions. He quoted authorities,
both senior civil servants and cabinet ministers going back to the Attlee administration
of 1945 – 51. Mr. Sandeman `s evidence included an addendum which was not
disclosed to ES as it dealt specifically with the DFES ` case as to the particular
documents which it refused to disclose. For the same reason, the Commissioner cross
examined Mr. Sandeman and made oral submissions on the particular documents in
the absence of ES. This judgment includes a corresponding annexe which will be
published only to DFES and the Commissioner unless and until, either it is apparent
that no appeal will be brought against our decision, or that decision is upheld in
whatever court finally determines any such appeal.
26      We wish to acknowledge the assistance that we gained from the candid, fair – minded
and constructive approach of all those witnesses to the issues, especially to questions
of the public interest.
27      Lord Turnbull and Mr. Britton gave evidence principally as to the cardinal importance of
preserving the confidentiality of policy discussions in the interests of good government
and the perceived threat to candour and boldness in the giving of advice, to the
consideration of options and to the exchange of views which possible future disclosure
would represent. Disclosure, Lord Turnbull told us, would send two sets of signals to
civil servants, the first being those relating to the particular information and its
publication, the second – and clearly the more far – reaching – involving a major
perceived threat to the role and integrity of the Civil Service which would significantly
9

Appeal Number: EA/2006/0006
alter the way in which the executive conducted its business. Disclosure of minutes of
bodies as close to ministers as those involved here had not been foreseen and would
strike at the heart of civil service confidentiality, Such a relationship was an important
constitutional safeguard and had served all governments well over many years. He
strongly rejected the Commissioner `s claim that his position involved or came close to
treating s.35(1) as conferring an absolute exemption to the duty to disclose.
28      He strongly endorsed the evidence of Mr. Britton, referred to in paragraph 41,
especially his analysis of the various and, in some cases linked types of damage to
good government which would result from the message conveyed by upholding the
Commissioner `s decision. He reminded us of warnings on the effects of exposure of
the internal workings of the executive from his distinguished predecessors, Sir William
Armstrong (as he was at the material time) and Lord Butler of Brockwell. Lord Butler,
giving evidence to a House of Lords Select Committee which was considering the
Freedom of Information Bill, emphasised the importance of “frank policy – making”
when the balance between open and effective government was being struck.
29      He reminded us that the White Paper which preceded the 1996 Code of Practice on
Access to Government Information argued that “Governments and public authorities
should be able to think in private. . . .”. The White Paper “ Your Right to Know”
published by the incoming Labour Government in 1997, underlined the damage that
could result from “random and premature disclosure of (government) deliberations”.
Lord Falconer, speaking on the relevant clause in the Upper House in 2000 referred to
a wide consensus that “policy – making should not take place in a goldfish bowl”.
30      Lord Turnbull stressed the importance of the political neutrality of the civil service and
the possible impact of our decision upon it. He cited the views, from opposite sides of
the political divide, of Michael Heseltine and Peter Mandelson as to the risk to such
perceived neutrality of public identification of a particular official with specific policy
advice. Select Committees over many years had made the same point as had the
Fulton Committee on the Future of the Civil Service, reporting in 1968. It is right to
observe that, at paragraph 279, that report spoke particularly of the need for secrecy “at
the formative stages of policy – making”. Lord Turnbull referred to the suspicion,
sometimes exhibited by ministers of an incoming administration or even a new minister
of the same administration towards an official apparently identified with a policy which
was no longer in favour. He asserted that full identification of officials would make it
“that much more difficult”. When asked by the Tribunal whether that did not simply
reflect a misconception on the part of the new minister or ministers as to the role of the
civil servant, which could and should be corrected, he replied, in effect, that that might
be so but “we have to live in the world in which we live”.
10

Appeal Number: EA/2006/0006
31      The corollary to a politicised civil service, is “sofa government”, as it was vividly
described by Lord Butler in his recent review, that is to say the increase in influence of
special political advisors, working independently of senior civil servants and free of
public scrutiny, supplanting and undermining the normal processes of policy – making.
This danger was forcefully highlighted by both Lord Turnbull and Mr. Britton, supported
by quotations from cabinet ministers from the present and former administrations.
32      The Franks Report on Section 2 of the Official Secrets Act 1911 accepted ( at Volume
1, Chapter 1, paragraphs 176 – 179 ) “that there are grounds for maintaining a measure
of privacy in the conduct of the Government `s business”.
33      Disclosure of the role and identity of the civil servant carried the further risk that
accountability for decisions might be seen as passing from the minister, the elected
representative, answerable to Parliament, to the unelected official. At the same time, it
was unfair to the minister that he should be confronted by his opponents with his
arguably unwise rejection of an official `s advice. Such was the view of Lord Butler,
among others. We were told that, whilst the Civil Service had been fully briefed on the
implications of the FOIA, as perceived within Government, it awaited with some
uncertainty the decisions of the Commissioner and the Tribunal as to how high the bar
of disclosure under s.35(1) would be set. To uphold the Commissioner `s decision on
this appeal would set that bar considerably lower than was expected and would
therefore be likely to produce the malign consequences of which we were vividly
warned.
34      In answer to a question from the Tribunal, Lord Turnbull made clear that his opposition
to the Commissioner `s stance did not depend on the timing of disclosure.
35      Mr. Britton, as indicated in paragraph 32, set out a series of grave adverse effects
which, he asserted, would inexorably result from the disclosure requested. These
were the “secondary signals”, to adopt Lord Turnbull `s apt expression. They were :
•     Loss of frankness and candour ;
•     The danger of government by Cabal ;
•     The damaging effect of disclosure on difficult policy decisions ;
•     The impact on record – keeping ;
•     Damage to relations between civil servants and ministers and to the role of civil
servants in the formation of policy.
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Appeal Number: EA/2006/0006
36      These are, essentially, the consequences of which Lord Turnbull warned the Tribunal.
Whilst distinct effects, they are, for the most part closely related. Mr. Britton quoted from
a 1967 speech of Lord Bridges, another former Cabinet Secretary, warning of the need
for “confidence that ( the official `s) advice will not be disclosed prematurely”. He
reiterated the perceived danger that identification of a civil servant with a policy may
alienate him from a new team of political masters. He warned the Tribunal with
particular vigour of the danger of more “ sofa” government.
37      Mr. Sandeman related these arguments to DFES specifically and offered justification for
a general policy of withholding the names of officials identified in records as performing
specific actions. He gave a very helpful and concise background to and history of the
funding issue, on which the early part of this judgment has gratefully drawn. Mr. Hayes
for ES told the Tribunal of the background to his request and set out particular reasons
why the material sought should be disclosed. School funding was always a matter of
great and legitimate public interest. The issue had raised great concern in 2003. The
lack, if there was a lack, of any mention of possible funding problems at meetings of the
relevant groups in the months leading up to March 2003 might, of itself, be highly
significant. He was at the obvious disadvantage imposed by exclusion from the
documents which he sought. A brief review of his evidence does not imply a lack of
weight in the considerations, general and particular to this appeal, which he set out.
Legal submissions
38      We intend no disrespect to the careful and detailed written and oral submissions of all
parties if we summarise them quite shortly.
The proper construction of FOIA s.35(1)(a)
39      Section 35 reads -
35. - (1) Information held by a government department or by the National Assembly for
Wales is exempt information if it relates to-
(a) the formulation or development of government policy,
(b) Ministerial communications,
(c) the provision of advice by any of the Law Officers or any request for the provision of
such advice, or
(d) the operation of any Ministerial private office.
(2) Once a decision as to government policy has been taken, any statistical
information used to provide an informed background to the taking of the decision is not to
be regarded-
12

Appeal Number: EA/2006/0006
(a) for the purposes of subsection (1)(a), as relating to the formulation or development of
government policy, or
(b) for the purposes of subsection (1)(b), as relating to Ministerial communications.
(3) 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).
(4) In making any determination required by section 2(1)(b) or (2)(b) in relation to
information which is exempt information by virtue of subsection (1)(a), regard shall be had
to the particular public interest in the disclosure of factual information which has been
used, or is intended to be used, to provide an informed background to decision-taking.
40      For the DFES it was contended that “relates to“ in subsection (1) is be broadly
construed, both on account of its natural meaning and of the fact that this exemption is
class – based and requires no evidence of prejudice. Over – technical interpretation is
to be avoided. The application of the public interest test required by s.2(2)(b) is a
sufficient bulwark against the unreasonable protection of trivial information. As to
“formulation and development of policy”, those were also wide terms; they embraced
information as to the factual background to a problem, giving rise to the need for fresh
policy – otherwise there was no need for s.35(4). The development of policy would
often be a continuing process – an argument that reflected references during the
evidence of Mr. Sandeman to a “seamless web” of policy.
41     The Commissioner argued for a rather narrower interpretation of “relates to” but his
conclusions as to the application of s.35(1)(a) to the present case differed from the
DFES only as regards one set of minutes. He distinguished between the formulation
and implementation of policy in principle. He did not accept that background information
or the identification of possible future problems were covered by the subsection.
42      ES contended that “relates to” was, in this context, to be narrowly construed, so as to
give effect to the purpose of FOIA. Mr. White cited the observation of Lord Denning
M.R. in R v Sheffield Crown Court ex parte Brownlow [1980] 1 Q.B. 530 at 538 – 540
that the words could be construed broadly or narrowly, according to the purpose of the
provision. The purpose of FOIA, he argued, was plainly the release of information in the
absence of good reason to the contrary. As to such a purpose, he cited decisions of
Canadian Courts on the broadly comparable Access to Information Act, 1983 and an
observation of Lord Marnoch to that effect in The Commons Services Agency v The
Scottish Information Commissioner [2006] CSIH 58 XA89/05.
As to “formulation or
development”, he accepted that the expression might cover a long process of
investigation, discussion, testing, consultation and possible improvement, alteration and
recording of effects after its initial formulation. (as proposed by the Scottish Information
13

Appeal Number: EA/2006/0006
Commissioner in two decisions cited to us ). However, he reminded us of the distinction
between those processes and implementation of a policy.
What is the correct approach to the weighing of conflicting public interests in relation to
disclosure ?
43      FOIA confers the right to information -
1. - (1) Any person making a request for information to a public authority is entitled-
(a) to be informed in writing by the public authority whether it holds information of
the description specified in the request, and
(b) if that is the case, to have that information communicated to him.
(2) Subsection (1) has effect subject to the following provisions of this section
and to the provisions of sections 2, 9, 12 and 14.
Section 2(2)(b) defines the Nature of a qualified exemption.
2 .....
(2) In respect of any information which is exempt information by virtue of any
provision of Part II, section 1(1)(b) does not apply if or to the extent that-
(a) the information is exempt information by virtue of a provision conferring
absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the
exemption outweighs the public interest in disclosing the information.
44     There emerged during argument, if not indeed in written submissions, what seemed to
us a clear contrast between the approaches of the DFES on the one hand and the
Commissioner and ES on the other as to the characterisation of the exemption defined
in s.2(2)(b). We do not consider that it is simply a matter of forms of words; it is a
difference of principle and substance which coloured argument on the public interest
test.
45      Put shortly, the DFES contended that FOIA conferred, not a general right to information
but a mixture of rights and restrictions. The absence of a prejudice requirement as a
condition for qualified exemption in such categories of information as s.35(1)(a) arose
from the acceptance by Parliament that any disclosure of information within this class
caused some damage, perhaps very minor, to the public interest. That was the way that
Mr. Crow put it, with great clarity, in the course of submissions. That was also the
approach of Lord Falconer when speaking to the corresponding clause on 24th.
October, 2000:
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Appeal Number: EA/2006/0006
“ This information is of a sufficiently sensitive nature to warrant a class exemption as
its disclosure would almost always entail harm to the formulation of government
policy”.
Such information, as a class was described in evidence as being “worthy of protection”.
That would have the practical consequence that inclusion in the class was a factor in
the balancing exercise prescribed by s.2(2)(b).
46      Both the Commissioner and ES submitted that classification within s.35(1)(a), or any
other category of information covered by a s.2(2)(b) exemption, simply lit an “amber
light” indicating that the public interests for and against disclosure required scrutiny.
The public interest test
47      This involves, as observed earlier in this judgment, questions both of law and fact. The
evidence identifying the public interests asserted has already been reviewed.
48   Mr Crow for the DFES submitted that:
(i)          Some damage is inherent in any disclosure of information of this class. If
Parliament had not taken that view, it would have applied to such
information the prejudice – based exemption, as we see in s.36.
(ii)          The words “ in all the circumstances of the case” in s.2(2)(b) require the
Tribunal to have regard ,not simply to the immediate consequences of
disclosing the particular information but further to such wider
consequences as are likely, on the evidence, to flow indirectly from
disclosure - Lord Turnbull `s “second set of signals”.
(iii) The particular information requested directly evidences the process of
formulation and development of government policy. It is therefore of a
class for which maintenance of the exemption is readily justified.
(iv) The material is fairly recent.
(v) The evidence called by the DFES established both the essential features
of good government that were at stake on this appeal and the threat
which disclosure poses. Such evidence was authoritative and
uncontradicted. He cited the very recent decision of the High Court of
Australia in McKinnon v Secretary, Department of Treasury [2006] HCA
45
, a decision which dealt with a provision corresponding to FOIA s.36,
where the Court confirmed the importance of preserving frankness and
candour and the need for good record – keeping. We note in passing that
15

Appeal Number: EA/2006/0006
a cogent ground” for upholding the minister `s certificate was that “the
documents were concerned with matters that were not settled and
recommendations that were not adopted” -
the issue of “tentativeness”
( p.47, para. 122)
(vi) Various dicta of Lords of Appeal in Conway v Rimmer [1973] A.C. 910 at
957C – D ( Lord Morris, at 985 –6 ( Lord Pearce ) and 992B – C( Lord
Upjohn ), Rogers v Home Secretary [1973] A.C. 388 at 413E – F ( Lord
Salmon ), Burma Oil v Bank of England [1980] AC 1090 at 1132 G – H (
Lord Keith )
were to be treated with caution since the issues raised by
claims to public interest immunity differed significantly from those raised
in balancing the public interests on the facts of this appeal.
(vii) The arguments for disclosure were weak or non – existent. They were
weakened by generous disclosure by the DFES of related information,
such as that exhibited to Mr. Sandeman `s evidence.
(viii) There is no public interest favouring the disclosure of names of officials,
whether in these documents or in general.
49 There was, unsurprisingly, much common ground between the Commissioner and ES.
That we merge their submissions in this review is not intended to devalue the clarity
and vigour with which they were advanced, both in writing and orally. In short they
submitted that :
(i)          There is no intrinsic damage in the disclosure of information which enjoys
a qualified exemption.
(ii)         The DFES stance effectively treats a qualified as an absolute exemption
from disclosure.
(iii) The policy which might have been discussed at the material period had
been superseded by 2004.
(iv) There is, in general, a public interest in examining the workings of central
government, not least to ensure that the public is able to make a
constructive contribution to important policy debates.
(v) The amount and distribution of funding of schools is an issue of great
public importance and always attracts keen and legitimate interest.
(vi) The information requested might show whether the DFES had foreseen
the funding crisis, if such it was.
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Appeal Number: EA/2006/0006
(vii) It would show how any crisis was tackled in 2003, what options were
considered and whether the DFES acted appropriately and effectively.
(viii) FOIA ss. 35(2) and 19(3)(b) both indicate that information is to be
regarded as less sensitive, hence more readily disclosable, once a policy
has been formulated.
(ix) The publication of other information relating to the subject matter of the
Request is irrelevant to the public interest in additional information sought
by ES. A decision of the Scottish Information Commissioner, Williams v
Scottish Executive 166/2006 para. 51
was cited.
(x) The incremental or cumulative impact of a series of disclosures – Lord
Turnbull `s secondary signals – should be disregarded, given the words
in all the circumstances of the case“ in s. 2(2)(b). ( This was an ES
submission.)
(xi) The disclosure of the names of officials might be important and could
very rarely be harmful.
The Tribunal `s Conclusions
The interpretation of FOIA s. 35(1)(a)
50      This provision has not hitherto been interpreted in any decision of the Tribunal. We
think it helpful therefore to offer some broad guidance as to its application.
51      Those who formulate and develop policy, whether in Government or other public bodies
identified in FOIA, need to have a clear idea, at least when answering requests for
information, whether business which they are conducting either may or will be disclosed
to the public on request. We acknowledge that, even if the qualified exemption applies,
they may still, in some cases, be faced with uncertainty as to whether the public interest
in maintaining that exemption will prevail. That, however, is the test to be applied.
52      The facts that:
•     s.36 creates a further qualified exemption, inter alia, for government
information, disclosure of which would inhibit the giving of advice and the free
and frank exchange of views for the purposes of deliberation and
•     information falling within s.35 is excluded from s.36,
may be some indication that s.35 should not be too liberally construed.
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Appeal Number: EA/2006/0006
53      Nevertheless, we consider that the approach of the DFES is broadly correct, mainly
because this is a class of information enjoying a qualified, not an absolute exemption.
That fact, of itself, enables, indeed requires a public authority to adopt a commonsense
approach to the disclosure of information, which will cause no or no significant damage
to the public interest. For that reason alone, we conclude that “relates to” and
“formulation and development of policy” can safely be given a reasonably broad
interpretation, notwithstanding the broad thrust of FOIA to which we shall return.
54      Such an approach is consistent with the wide reach of the terms themselves.
55      We agree that the immediate factual background to policy discussions is itself
information caught by s.35(1)(a), an inference which, we believe, is readily drawn from
the wording of s.35(4). That said, s.35(4) expressly and apparently uniquely, so far as
FOIA is concerned, spells out the public interest in its disclosure, even before a policy is
fully formulated.
56      The distinction between formulation/development on the one hand and implementation
on the other will prove to be a very fine one in some cases since implementation itself
usually spawns policies. There will, however, be many instances where the latter rather
than the former is clearly involved. Such cases will be more readily recognised when
confronted than defined in advance.
57      The wording of s.35(2) seems to envisage policy formulation as a series of decisions
rather than a continuing process of evolution. That has little significance in the
interpretation of s.35(1)(a) since that applies to information whether it relates to the
formulation and development of one policy or its successor. It may be more significant,
however, when we consider questions of the public interest.
58      Bearing these limited principles in mind, we are firmly of the view that, when asking the
question, whether the minutes of a particular meeting or part of one, a memorandum to
a superior or a minister or a note of advice fall within s.35(1)(a), a broad approach
should be adopted. If the meeting or discussion of a particular topic within it, was, as a
whole, concerned with s.35(1)(a) activities, then everything that was said and done is
covered. Minute dissection of each sentence for signs of deviation from its main
purpose is not required nor desirable. As acknowledged already, that reassurance is of
limited value since the question of the public interest remains.
59      Translating those principles to the disputed information in this appeal, we rule that the
DFES correctly asserted that s. 35(1)(a) applied to all the outstanding material ( and
probably some of the material disclosed before the hearing of this appeal ). So we turn
to the question: what is the correct approach to a class of documents to which
Parliament has applied a qualified exemption ?
18

Appeal Number: EA/2006/0006
What is the correct approach to a class of documents to which Parliament has applied a
qualified exemption ?
60      We reject the inherent damage argument advanced by the DFES as the rationale
underlying qualified exemptions applicable to information caught by such provisions as
s.35(1)(a).
61      FOIA, in s.1, conferred an important new fundamental right to information held by public
bodies. It is a right subject to exceptions, or conditions as they were termed by Lord
Turnbull. Where such an exception is relied on by a public authority, it is for that
authority to justify such reliance. If it says there is an absolute exemption, it must
demonstrate it. If prejudice is a requisite factor, it must prove it.
62      We do not accept that the inclusion of information within such a class as s.35(1)(a)
reflects the inevitability of damage to the public interest, in some degree, if it is
disclosed. On the contrary, the wider such a provision as s.35(1)(a) is drawn, in
accordance with the DFES argument which we have accepted, the more unreal such a
contention becomes. The ready and entirely proper acceptance by the DFES that much
of such material can be and is disclosed by the Department demonstrates the, at best,
hypothetical nature of this argument.
63      In our judgement, inclusion within such a class of information simply indicates the need
and the right of the public authority to examine the question of the balance of public
interests when a request under s.1 is received. Often such examination will be very
brief because disclosure poses no possible threat to good government.
64      Section 2(2)(b) is clear : the authority must disclose unless the public interest in
withholding the information outweighs the public interest in disclosure. If the scales are
level, it must disclose. Such an equilibrium may not be a purely theoretical result : there
may be many cases where the apparent interests in disclosure and in maintaining the
exemption are equally slight.
65      The weighing exercise begins with both pans empty and therefore level. Disclosure
follows if that remains the position.
66      We therefore respectfully disagree with the observation of Lord Falconer which
immediately followed the quotation set out at paragraph 45 :
“This being the case, it would be dishonest to have a prejudice test in this
clause. Information of this nature should be disclosed only where it is in the
public interest to do so, w
hich is already provided for in the Bill”.
19

Appeal Number: EA/2006/0006
If that was his interpretation of s.2(2)(b), we think that he put the matter the wrong way
round. In reaching this conclusion we have further had regard to the observations of
this Tribunal, differently constituted, in Hogan and Oxford City Council v Information
Commissioner (EA/2005/0026 and EA//2005/0030) at paragraphs 61 - 67]
.
The application of the public interest test
67      We have already ruled that s. 35(1)(a) applies to all the information in issue. We now
turn to the question of applying the test of s.2(2)(b) in accordance with the approach
indicated at paragraphs 60 - 66. Since it is for the DFES to demonstrate that the
exemption should be maintained, that the interest in withholding the requested
information should on balance prevail, we shall first examine the arguments against
disclosure.
68      Looked at without regard either to the status of the minutes concerned or to the
“secondary signals” which disclosure would give, according to the DFES, we have no
doubt that disclosure early in 2005 of the information now in issue would have caused
little, if any, damage to the current or future work, including formulation of policy, of the
DFES. Viewed on the same very limited basis, we do not consider that the identification
of individual civil servants in those minutes would prejudice them or their future role in
the department. So, if we were required to look no further than the text of these
minutes, we should uphold the Commissioner’s decision, for slightly different reasons,
so far as they relate to the application of s.35(1)(a) to this information.
69      Is the very status of these minutes, the fact that they record meetings of the most senior
officials discussing the funding issue, a factor which supports the maintenance of the
exemption? In our view, it is not. It may, in some or many cases, increase the
sensitivity of the matters minuted, disclosing, for example, whilst policy is being
reviewed, that radical options are being discussed at a very high level. If it does, that
will be a factor which can properly be taken into consideration when a government
department is confronted with an FOIA request. To treat such status as automatically
conferring exemption would be tantamount to inventing within s. 35(1) a class of
absolutely exempt information, for which the subsection gives no warrant and is a
stance which the DFES quite rightly disclaimed.
70      However, we do not consider that the matter ends there. We agree with the DFES
submission that the weighing of the public interests involves in this case a consideration
of any evidence of a wider impact on the conduct of government which might result
from the Commissioner’s decision – Lord Turnbull `s “secondary signals”. That
conclusion seems to us to flow from the introductory words of s.2(2)(b) quoted above,
in all the circumstances of the case”. They include indirect consequences, We note
that such a conclusion is consistent with the approach of the Scottish Information
20

Appeal Number: EA/2006/0006
Commissioner, to judge from decisions to which our attention was drawn (see
Hutcheon v Scottish Executive 075/2006 and Williams v Scottish Executive 166/2006 ).
It is, furthermore, at least implicit in the Commissioner `s submissions on this appeal.
71      We have identified the wider effects of disclosure predicted by the DFES witnesses in
some detail already. The issue for us is not whether frank debate, fearless advice,
impartial officials, full record – keeping and ministerial accountability are worth
preserving. All agree that they are. We have to decide whether or to what extent they
would be imperilled by disclosure in this case.
72      Mr. Crow argued, in effect, that the Tribunal had no real alternative to accepting the
evidence of the eminent witnesses that he called on these matters, in the absence of
any evidence to refute them. We accept without question their assertions as to the vital
importance of the principles listed in the last paragraph and others which they cited.
Indeed, as we have already said, nobody cast doubt upon them. When it comes to the
effects of disclosure, however, we have listened with care and respect to their warnings
but remain entitled, indeed under a duty, to reach our own conclusions, applying our
commonsense and, as to the lay members, our experience to our decision. We also
have some regard to the fact that government departments have for six years been
aware of and briefed on the potential changes to working practices which FOIA has
introduced. There was no evidence of any loss of candour in discussion and advice in
the upper echelons of the Civil Service in that period. That might be because officials
have hitherto expected a high degree of protection for meetings and policy memoranda,
as Lord Turnbull suggested. Alternatively, it could be that concerns at disclosure are not
quite as acute or widespread as supposed.
73      We were told by Mr. Crow that FOIA was not intended to change the way that
government was conducted as a matter of substance, If that means that it was not
intended to destroy the role of an impartial Civil Service, we unhesitatingly agree. It
was, however, intended to change it fundamentally by replacing a Parliamentary Code
with a statutory right to government information, imposing a degree of transparency,
subject, of course, to exceptions, to which it had never previously been exposed and for
which it sought to prepare as confirmed by Lord Turnbull.
74      We agree that there is a need for some caution when invited to apply dicta of
distinguished senior judges dealing with questions of public interest immunity to the
question whether the warnings of Lord Turnbull and Mr. Britton are unduly alarmist.
Several considerations demand circumspection:
(i)          They do not all speak with one voice. Mr. Crow highlighted
further passages in the speeches in Conway v Rimmer and
21

Appeal Number: EA/2006/0006
Burmah Oil v Bank of England which express more qualified
and even contrary views of the risk to candour.
(ii)         However distinguished the judge, he is expressing his view,
indeed his forecast on an issue of fact, not of law.
(iii) The result of a refusal to disclose documents in private
litigation will often be an irredeemable denial of justice. Such a
drastic consequence does not inevitably flow from withholding
information under FOIA.
(iv) The very slight chance that an official `s words might one day
be revealed in litigation probably does not cross his mind at the
time. Whether the chance is perceived as greater in the context
of FOIA and whether that is likely to affect candour is
discussed below.
(v) Disclosure in private litigation is subject to strict undertakings
as to restricted use (see C.P.R. Rule 31.22 ). Disclosure under
FOIA is to all the world, to be used for whatever purpose the
world wishes.
That said, we do not entirely ignore the fact that similar claims to those made to us
have met with a degree of scepticism in much less transparent times than ours.
75 Having reflected on the competing arguments and the wealth of authorities with which
we have been assisted, we conclude that the following principles should guide
decisions as to disclosure in such a case as this. :
(i)          The central question in every case is the content of the
particular information in question. Every decision is specific to
the particular facts and circumstances under consideration.
Whether there may be significant indirect and wider
consequences from the particular disclosure must be
considered case by case.
(ii)         No information within s.35(1) is exempt from the duty of
disclosure simply on account of its status, of its classification
as minutes or advice to a minister nor of the seniority of those
whose actions are recorded.
(iii) Subject to principle (iv), which we regard as fundamental, the
purpose of confidentiality, where the exemption is to be
22

Appeal Number: EA/2006/0006
maintained, is the protection from compromise or unjust public
opprobrium of civil servants, not ministers. Despite impressive
evidence against this view, we were unable to discern the
unfairness in exposing an elected politician, after the event, to
challenge for having rejected a possible policy option in favour
of a policy which is alleged to have failed.
(iv) The timing of a request is of paramount importance to the
decision. We fully accept the DFES argument, supported by a
wealth of evidence, that disclosure of discussions of policy
options, whilst policy is in the process of formulation, is highly
unlikely to be in the public interest, unless, for example, it
would expose wrongdoing within government. Ministers and
officials are entitled to time and space, in some instances to
considerable time and space, to hammer out policy by
exploring safe and radical options alike, without the threat of
lurid headlines depicting that which has been merely broached
as agreed policy. We note that many of the most emphatic
pronouncements on the need for confidentiality to which we
were referred, are predicated on the risk of premature publicity.
In this case it was a highly relevant factor in June 2003 but of
little, if any, weight in January 2005.
(v) When the formulation or development of a particular policy is
complete for the purposes of (iv) is a question of fact. However,
s. 35(2) and to a lesser extent 35(4), clearly assume that a
policy is formulated, announced and, in many cases,
superseded in due course. We think that a parliamentary
statement announcing the policy, of which there are examples
in this case, will normally mark the end of the process of
formulation. There may be some interval before development..
We do not imply by that that any public interest in maintaining
the exemption disappears the moment that a minister rises to
his or her feet in the House. We repeat – each case must be
decided in the light of all the circumstances. As is plain
however, we do not regard a “seamless web” approach to
policy as a helpful guide to the question whether discussions
on formulation are over.
(vi) If the information requested is not in the public domain, we do
not regard publication of other information relating to the same
23

Appeal Number: EA/2006/0006
topic for consultation, information or other purposes as a
significant factor in a decision as to disclosure.
(vii) In judging the likely consequences of disclosure on officials`
future conduct, we are entitled to expect of them the courage
and independence that has been the hallmark of our civil
servants since the Northcote - Trevelyan reforms. These are
highly – educated and politically sophisticated public servants
who well understand the importance of their impartial role as
counsellors to ministers of conflicting convictions. The most
senior officials are frequently identified before select
committees, putting forward their department `s position,
whether or not it is their own.
(viii) On the other hand, there may be good reason in some cases
for withholding the names of more junior civil servants who
would never expect their roles to be exposed to public gaze.
These are questions to be decided on the particular facts, not
by blanket policy.
(ix) Similarly, notwithstanding past experiences which were
recounted to us with a proper anonymity, we are entitled to
expect of our politicians, when they assume power in a
government department, a substantial measure of political
sophistication and, of course, fair – mindedness. To reject or
remove a senior official because he or she is identified, thanks
to FOIA or for any other reason, with a policy which has now
lost favour, whether through a change of administration or
simply of minister, would plainly betray .a serious
misunderstanding of the way the executive should work. It
would, moreover, be wholly unjust. We should therefore
proceed on the assumption that ministers will behave
reasonably and fairly towards officials who promoted – or are
believed to have promoted policies which the new incumbent
rejects, policies which may not, anyway, reflect the official `s
private view. By the same token, new ministers can expect
from that official the same level of engagement with the
policies which they now wish to pursue.
(x) Likewise, decisions should not assume the worst of the public.
The answer to ill – informed criticism of the perceived views of
civil servants is to inform and educate the critic, however hard
24

Appeal Number: EA/2006/0006
that task may be, not to deny information, simply through fear
that it may reflect adversely and unfairly on a particular official.
(xi) A blanket policy of refusing to disclose the names of civil
servants wherever they appear in departmental records.
cannot be justified because, in many cases disclosure will do
no harm to anyone, even if it does little good. Quite apart from
cases falling within (iv) above, there will plainly be instances
where an individual has advanced particularly sensitive or
controversial advice which for whatever reason should not be
attributed. It might be appropriate to disclose the advice with
the name redacted. Again, each decision will depend on the
facts of the case. There must, however, be a specific reason
for omitting the name of the official where the document is
otherwise disclosable. That reason may not need to be utterly
compelling where, as will often be the case, there is little or no
public interest in learning the name.
76      Applying such principles to the disputed information here, we regard the interest in
maintaining the exemption, taking account of all the circumstances, as tenuous, at best.
By early 2005, the policy changes under consideration had resulted in a ministerial
statement in the Commons in July, 2003, announcing a new policy framework for the
two following financial years. In July, 2004, the School Standards Minister announced
details of the funding settlement for 2005 – 6. It is clear that the time and space
needed had been available and put to good effect.
77      We do not believe that disclosure of these minutes, having regard to both the general
principles, we have sought to formulate, some of which are only marginally engaged
here, and the content of this particular material would damage the public interest to any
measurable degree.
78      Before passing to a very brief review of the arguments for disclosure, we wish to add a
few observations on the arguments advanced on both sides as to the wider effects of
disclosure.
79      We accept that the DFES is, of course, fully conversant with the distinction between
absolute and qualified exemptions. Nevertheless, the effect of much of its evidence , if
accepted, would be practically to ignore that distinction in relation to wide classes of
policy information covered by s. 35(1).
25

Appeal Number: EA/2006/0006
80      Equally it would generally exclude the public from access to information as to how
policy was agreed and developed, even where that policy had long been discarded,
subject to the application of the thirty year rule.
81      As to protection of ministers from premature or unfair criticism based on disclosed
communications with senior officials, confidentiality as to such communications is not
always, we think, treated by ministers as sacrosanct. It is not unknown for a minister to
announce, in the face of public clamour, what information or advice he or she was or
was not given by his or her officials, perhaps in order to protect his or her personal
position and career. If that is so, it is hard to see why, in an appropriate case, political
opponents should not have access, after the event, to material of a similar nature which
might expose the minister to challenge.
82      We recognise the dangers of increasing “ sofa government” or “government by cabal”
as it was termed by Mr. Britton. The use of political advisors rather than career civil
servants goes back at least to Churchill and represents a growing trend, lamented by
oppositions of whichever political complexion. Whether it is likely to accelerate if there
is a greater risk of disclosure of the dealings of civil servants with each other and with
ministers, we do not feel confident to predict. It will certainly not be curbed by any
decision of ours.
83      As to record – keeping, we were told that standards were hard to maintain already.
Certainly, the minutes which we are considering are fairly skeletal. Whether or not this
is, as the Commissioner contends, a management issue, we do not consider that we
should be deflected from ordering disclosure by the possibility that minutes will become
still less informative. This is not a problem unique to central government. In any case,
minutes are unlikely to be disclosed in the heat of battle, for reasons discussed at
paragraph 75(iv). Good practice should prevail over any traditional sensitivity as we
move into an era of greater transparency.
84      We recognise the importance of maintaining the constitutional position that Ministers,
not civil servants, are answerable to Parliament and the public for the actions of their
department. We also recognise that officials should be able to have robust and honest
discussions with their ministers without fear that such frank discussions will make them
a political ‘football’ with possible adverse consequences for their careers. As we have
said already, that is not, of itself, an argument for withholding the names of civil
servants but the wider impact point may require consideration in some cases.
85      Finally, we read and heard evidence relating to cabinet discussions and the
consequences for the principle of collective responsibility which disclosure may pose.
We are not directly concerned with such information on this appeal. It may be that
further considerations, not debated here, are material to issues of the public interest
26

Appeal Number: EA/2006/0006
should information of that character be requested. Those involved in such discussions
are elected politicians or peers who have willingly accepted a political role. Certain
principles which we have attempted to propose may be relevant in that context also but
we restrict our observations to the conduct of business within government departments
with which this appeal is concerned.
The arguments for disclosure
86      We think there is force in the point that there is a general public interest in transparency
and a better understanding of how the government tackles important policy problems.
That the “funding crisis” was of great public concern is clearly a factor. The possibility
that minutes were silent on this issue in the months leading up to March 2003 could, if
true, be of significance, given the central role in the DFES which the two bodies
concerned were said to occupy. There is, furthermore, a legitimate interest in seeing
how the emerging problem was tackled between March and July, 2003.
87      We do not consider that the information in issue is likely to prove of major importance to
any public debate on the issue but it may have some. More than that it is not necessary
or appropriate to say in this open judgment. There is little interest in the disclosure of
the names of the officials involved here but virtually none that we can discern, in their
suppression.
88      The public interest in maintaining the exemption does not therefore outweigh that
favouring disclosure.
FOIA S. 40
89      It appears that the DFES raised the possible applicability of s. 40 (the Data Protection
exemption) in the course of exchanges with the Commissioner following Mr. Hayes`
complaint. It is right to observe that neither in its original refusal nor in the letter
following review (see paragraphs 11 and 12 above) did the DFES invoke that provision.
Nevertheless, the Commissioner ruled in his Decision Notice that s. 40 was not
engaged. The DFES protests that he had no jurisdiction, or at any rate should not have
ventured to rule on a matter which the DFES was not raising.
90      The Tribunal ruled in Bowbrick v The Information Commissioner EA 2005/0006 at
paragraphs 34 - 56 as to its and the Commissioner `s jurisdiction to consider
exemptions not raised by the public authority when refusing the Request. Here the
DFES disowns any argument based on s.40 but is concerned, we understand, that the
Tribunal should not offer any ruling on the issue, which may arise for consideration in a
broadly similar appeal in the future.
27

Appeal Number: EA/2006/0006
91      We shall certainly not do so, not least because we heard no argument on the point. We
do not wish to investigate complaints that the Commissioner behaved unfairly in ruling
on the point. It is doubtful whether that lies within our jurisdiction. If it does, we do not
choose to exercise it. Our task is to rule whether, given all the matters before us, the
Commissioner `s decision was right in law. We have done so.
92      If further clarification is needed, we take the view that the application of s.40 to a
complaint such as this is to be viewed as free of authority at any level, since the DFES
evidently did not pursue the argument at an earlier stage. We make no criticism of any
party. This is an issue with which we were not concerned.
The Decision
93      For these reasons we shall uphold the Commissioner `s decision.
Deputy Chairman
David Farrer QC
Dated 19th. February, 2007
28


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