Cabinet Office v Information Commissioner

A direction under Rule 14(6) permitting a tribunal to receive closed material is ordinarily capable of later variation under its general case-management powers. It need not expressly reserve that power. The tribunal, not the party providing the material, decides what remains confidential and whether an open judgment may contain an appropriately limited account of the material.

That power must be exercised consistently with open justice and the continuing purpose of the confidentiality direction. Relevant closed evidence cannot ordinarily be withdrawn after the substantive hearing merely because the provider objects to disclosure or gisting. A tribunal may fairly determine the issue after giving the parties an opportunity to comment on an embargoed draft decision.

The Cabinet Office refused a request under the Freedom of Information Act 2000 for disclosure of a guide concerning the passage of Bills through the House of Lords. The Information Commissioner ordered substantial disclosure. On the Cabinet Office’s appeal, the First-tier Tribunal received evidence and an annotated guide on a closed basis under Rule 14(6) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

The First-tier Tribunal later proposed to include limited references to that material in an appendix to its open reasons. It rejected some, but not all, of the Cabinet Office’s objections. The Cabinet Office appealed, contending that the confidentiality directions were irrevocable, that it had a veto over any gist, and that the procedure was unfair.

1. Appeal dismissed. The First-tier Tribunal’s decision involved no error of law.

2. Rule 14(6) directions made in this case were not irrevocable. Rule 5(2) empowered the First-tier Tribunal to amend, suspend or set aside an earlier direction, and Rule 6(5) provided a route to challenge a direction. Nothing in Rule 14 excluded those powers. A direction would require clear wording before it could be treated as incapable of variation. The First-tier Tribunal was therefore entitled to vary the directions and include carefully framed material from the closed evidence in its reasons.

3. A closed session was not equivalent to a wholly private hearing. Some evidence had been given openly and the Tribunal’s ultimate reasons were addressed to the public. The principles of open justice, including those stated in Bank Mellat v HM Treasury (No 1) [2013] UKSC 38, required the Tribunal to keep privacy to the minimum necessary and to explain, so far as proper, the effect of closed material on its decision. An open judgment confined to uninformative assertions would not adequately explain the outcome.

4. The Rules place responsibility for confidentiality and disclosure with the First-tier Tribunal. A party supplying closed material has no express or implied veto over the content of an open summary or reasons. Nor could the Cabinet Office withdraw relevant evidence after the substantive hearing if it disagreed with the Tribunal’s proposed gist. That course would undermine the overriding objective, the duty of co-operation, and the Tribunal’s ability to make a properly informed decision.

5. The procedure was fair. Although the First-tier Tribunal should ordinarily have discussed possible public disclosure at the end of each closed session, the Cabinet Office received an embargoed draft and made detailed representations. The Tribunal considered those representations and amended material in response. It was not required to permit a further round of submissions or to adopt the Cabinet Office’s proposed gists. Appendix A was to be disclosed only after the time for further appeal had expired or any permission application had concluded; Appendix B remained confidential.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the Cabinet Office’s appeal and upheld the First-tier Tribunal’s decision of 22 July 2015.
• First-tier Tribunal (General Regulatory Chamber): determined the Cabinet Office’s appeal from the Information Commissioner’s decision notice and made the closed-material and publication rulings challenged in this appeal.
• Information Commissioner: issued a decision notice on 22 July 2014 concerning the requested information under the Freedom of Information Act 2000.