Written evidence from Tommy Sheppard MP (FOI 39)
Summary of Observations
Throughout all my dealings with the Cabinet Office there has been one constant. The Cabinet Office have always sought to do no more than the minimum required – and, if they can get away with it, less than it. Instead of looking at freedom of information law and thinking about how they can best give effect to its objectives, they have a start point of wanting to block any release and then finding ways in statute to then justify the obstruction. In a department like this there should be good faith endorsement of the principles of freedom of information. Currently that is sorely lacking.
Since June 2019 I have been engaged in attempts to secure the release of public opinion research commissioned by the Cabinet Office, originally requesting a set of work commissioned between 2018 and 2019. This original Freedom of Information request has been opposed all the way to the Upper Tribunal so far and I expect it to proceed further.
Following a First Tier Tribunal ruling in June 2021 that the information should be released I made a second request to the Cabinet Office for any public opinion research on the same topic carried out in the period between 2019 and 2021. Despite this being a substantively similar request to the first, it was refused on different grounds not cited the first time, namely the cost of extracting the information from documents. When I then submitted a request simply for the documents, this was refused on the grounds of repetition.
Due to the intensity of opposition to the release of this information, I have submitted further ancillary FoIs regarding the Cabinet Office blocking efforts of the original FoI. Requests for internal costs of handling the FoI request, for the number of staff hours or the staff headcount have all been refused on the grounds that this information does not exist. This leaves me at a loss to understand how the Cabinet Office could possibly track its own human resources or task handling. A request for the cost of external counsel from the Government Legal Department and any private chambers is still outstanding at the time of writing.
Original Freedom of Information Request: Chronology
3 June 2019
FoI request submitted requesting polling on Scottish attitudes to the union and related contact with Ipsos-MORI from January 2018 to that date.
1 July 2019
Cabinet Office refuses, citing s35(1)(a) – formulation and development of government policy.
5 July 2019
Requested internal review, which is subsequently rejected.
20 August 2019
Appealed to ICO.
27 January 2020
ICO upheld decision of Cabinet Office that s35(1)(a) applies.
25 February 2020
Appealed to tribunal.
14 June 2021
First Tier Tribunal rules that the research relates to implementation of policy and not its formulation or development and orders its release.
11 July 2021
Cabinet Office submits a request to appeal to the First Tier Tribunal, prepared by external counsel 11KBW.
22 July 2021
First Tier Tribunal rules that Cabinet Office has no grounds to appeal.
Cabinet Office submits a request to appeal to the Upper Tribunal.
8 September 2021
Upper Tribunal rules that Cabinet Office has no grounds to appeal. Judge comments that he is “driven to the conclusion that what the Applicant really wants to do is re-run the first appeal… because it strongly disagrees with the conclusions and judgment properly made by the FTT”.
Offshoot Freedom of Information Requests: Chronology
15 June 2021
Submitted second FoI request for polling, covering period from June 2019 to that date.
5 August 2021
Cabinet Office rejects second polling request due to cost to identify, extract and provide exceeding £600.
23 August 2021
Requested internal review of second polling request. Also submitted a costs request for “any accounting that has been done of internal resource costs” of dealing with the original request and costs of legal advice.
6 September 2021
Cabinet Office replies asking for clarification on scope of legal advice question and states internal resource costs accounting not held.
8 September 2021
Clarification submitted. New request submitted asking for headcount staff and hours spent on original FoI request.
21 September 2021
Cabinet Office replies that staff headcount and staff hours information is not held.
23 September 2021
Cabinet Office refuses internal review of second polling request, citing that it would require 51 hours and cost £1,287 to extract the relevant polling information from wider documents.
24 September 2021
Submitted new request, this time for documents in whole that refer to the polling information over the period 2019 to 2021, to avoid engaging the costs exemption.
28 September 2021
Cabinet Office rejects new request on grounds of substantive repetition of prior request.
I would be happy to provide any of the decision notices on request. I have appended the most recent determination on the original freedom of information request for information.
ADMINISTRATIVE APPEALS CHAMBER
2nd Respondent: Mr Tommy Sheppard MP
DETERMINATION OF THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE WIKELEY
Determination date: 8 September 2021
Hearing Date: 2 June 2021
This front sheet is for the convenience of the parties and does not form part of the decision
IN THE UPPER TRIBUNAL Appeal No. UA-2021-000017-GIRF
ADMINISTRATIVE APPEALS CHAMBER
The Cabinet Office
– v –
The Information Commissioner
– and –
Mr Tommy Sheppard MP
Before: Upper Tribunal Judge Wikeley
Determination date: 8 September 2021
Determined on consideration of the papers
Applicant: Mr Stephen Kosmin of Counsel by written representations
1st Respondent: No attendance
2nd Respondent No attendance
NOTICE OF DETERMINATION OF
APPLICATION FOR PERMISSION TO APPEAL
I refuse permission to appeal.
This determination is made under section 11 of the Tribunals, Courts and Enforcement Act 2007 and rules 21 and 22 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).
REASONS FOR DETERMINATION
1. This is an application for permission to appeal against a decision of the First-tier Tribunal (FTT) of the General Regulatory Chamber (the GRC). Judge Cragg QC sat with two specialist members on 2 June 2021 to decide the requester’s appeal on the basis of the papers. This procedure was with the consent of the (then) parties, namely the requester (Mr Tommy Sheppard MP) and the Information Commissioner. It appears that the public authority (the Cabinet Office), and now the Applicant, did not at that stage avail itself of the opportunity to be joined as a party to the FTT proceedings. It appears a joinder application was only made ‘after the event’ of the FTT hearing.
2. A reasoned FTT decision allowing the requester’s appeal and substituting a new decision notice for that of the Information Commissioner was signed off on 10 June 2021 (and issued on 14 June 2021). In short, the FTT decided that the Cabinet Office should disclose the information within scope of the request, subject to redaction of personal data under s. 40 FOIA. The FTT concluded that the requested information related to implementation of existing policy and not to formulation or development of policy and therefore the exemption under s35(1)(a) FOIA did not apply. The Tribunal also indicated that even if the exemption did apply then then the balance of the public interest was in favour of disclosure.
3. On 22 July 2021 Judge Cragg QC refused permission to appeal (promulgated 27 July 2021). The application for permission to appeal has now been renewed direct before the Upper Tribunal. There is no request for an oral hearing of the application.
4. An appeal to the Upper Tribunal lies on “any point of law arising from a decision” (section 11(1) of the Tribunals, Courts and Enforcement Act 2007). The Upper Tribunal will give permission to appeal only if there is a realistic prospect of an appeal succeeding, unless there is some other good reason to do so, by analogy with the principles set out by Lord Woolf MR in the Practice Note on Smith v Cosworth Casting Processes Ltd  1 WLR 1538.
5. The Applicant’s application for permission to appeal is based on two grounds. Ground 1 is that the FTT erred in finding that section 35(1)(a) FOIA was not engaged. It is said that the FTT wrongly concluded that the requested information related to the implementation of existing policy and not to the formulation or development of policy. However, this must ultimately be a question of fact. That has long been the approach of the FTT and its predecessor tribunal, the information tribunal, and has been confirmed on appeal; see e.g. the explanation in the oft-cited first instance decision DfES v IC and Evening Standard  UKIT EA/2006/0006 at paragraph 75(v):
“When the formulation or development of a particular policy is complete for … 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.”
6. In my assessment, Ground 1, while eloquently articulated, is at heart an attempt to re-argue the case on its factual merits (or, in the Applicant’s peculiar circumstances, to argue for the first time in a tribunal forum). I am not persuaded it is arguable that the FTT erred in law in its approach to the section 35(1)(a) issue, where the questions that arise are part of the daily bread and butter of this tribunal.
7. Ground 2 relates to the public interest test and has two limbs. The first (Ground 2a) is that the FTT erred in concluding that the timing of the request “is not a matter which impacts on our deliberations”; in so doing, it is said that the FTT disregarded a factor of paramount importance which should have weighed in the balance. The second aspect (Ground 2b) is that the FTT wrongly concluded that disclosure of the requested information would not inhibit any “safe space” required to consider formulation and development of policy.
8. In my view there are at least three difficulties with this pair of sub-grounds.
9. The first difficulty is that the FTT decided this appeal on the basis of the section 35(1)(a) FOIA point. It could have simply drawn stumps at the end of paragraph 27 of its reasons. However, it went on to give an indication of what it would have decided had it concluded that the exemption was engaged. That approach was also entirely proper and doubtless designed to be helpful. But it necessarily means that the FTT’s analysis is not going to be as fully refined as it would have been had the point been live. In those circumstances a second tier appellate tribunal is likely to cut the first instance tribunal a considerable degree of slack.
10. Second, and in any event, this point involved the (hypothetical) application of the public interest balancing test. As Lloyd Jones LJ put it in Department for Work and Pensions v Information Commissioner and Zola  EWCA Civ 758 at paragraph  (remarking on the FTT panel composition and dissenting on the outcome in that case but not on this point):
“Given such expertise in a Tribunal, it is entirely understandable that a reviewing court or Tribunal will be slow to interfere with its findings and evaluation of facts in areas where that expertise has a bearing. This may be regarded not so much as requiring that a different, enhanced standard must be met as an acknowledgement of the reality that an expert Tribunal can normally be expected to apply its expertise in the course of its analysis of facts.”
11. Third, and furthermore in any event, it seems to me that the grounds of appeal involve some cherry-picking of the FTT’s reasons and fail properly to consider the points made in paragraphs 29-32 of the reasons in their full context.
12. For all the above reasons, I refuse this application for permission to appeal. I am driven to the conclusion that that what the Applicant really wants to do is re-run the first appeal (which it could have participated in but elected not to do so) on the facts because it strongly disagrees with the conclusions and judgment properly made by the FTT.
13. The Applicant has the right to apply for a reconsideration of this refusal determination at an oral renewal hearing before the Upper Tribunal, which as a matter of convention would be in front of a different judge. Any such application must be made in writing and within 14 days of the date that this determination is issued by the Upper Tribunal office (i.e., for the benefit of Mr Sheppard’s understanding, the date on the covering letter from the clerk in the Upper Tribunal office, and not the date below) – see Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), rule 22(3)-(5).
14. I further note that the UT13 notice of appeal includes an application to suspend the effect of the FTT decision under rule 5(3)(m) of the Tribunal Procedure (Upper Tribunal) Rules 2008, which provides that the Upper Tribunal may “in an appeal, or an application for permission to appeal, against the decision of another tribunal, suspend the effect of that decision pending the determination of the application for permission to appeal, and any appeal.” The application is made on the understandable basis that the disclosure of the requested information would render any further onward appeal nugatory.
15. In his ruling refusing permission to appeal, Judge Cragg QC directed that “disclosure of the information is stayed until 7 days after the time for filing an application for PTA with the Upper Tribunal has expired or, if an application for PTA is filed, until the resolution of the application and any subsequent appeal by the Upper Tribunal.” In the circumstances it is fair and just to continue that suspension order in a modified form so long as these proceedings remain on foot.
16. I direct that the effect of the FTT decision is suspended until 14 days after the time for filing an application for an oral renewal hearing (see paragraph 13 above) has expired. If such a renewal application is filed in time, the suspension continues until the resolution of the renewal application and any subsequent appeal by the Upper Tribunal or until further Order.
Judge of the Upper Tribunal
Authorised for issue on 8 September 2021