The Cabinet Office v The Information Commissioner

Information may relate to the formulation or development of government policy under section 35(1)(a) even where it also concerns a settled, high-level policy. A settled objective does not prevent information from relating to the formulation or development of subordinate policies or detailed policy options.

The boundary between policy formulation, development and implementation is fact-specific. It requires careful examination of all relevant open and closed evidence. In information-rights appeals, the First-tier Tribunal must perform its inquisitorial function and give adequate reasons for its treatment of material evidence. The qualified-exemption public-interest balance under section 2(2)(b) arises only after section 35 is engaged.

Tommy Sheppard MP requested Cabinet Office information concerning polling of public perceptions of the Union and related expenditure. The Cabinet Office refused the request under section 35(1)(a) of the Freedom of Information Act 2000, contending that the material related to the formulation or development of policy.

The Information Commissioner upheld that refusal. The First-tier Tribunal, by its decision of 10 June 2021 under reference EA/2020/0081P, allowed Mr Sheppard’s appeal. It held that the polling concerned implementation of the settled policy of maintaining the Union, rather than policy formulation or development.

The Cabinet Office appealed to the Upper Tribunal. The central issue was whether the First-tier Tribunal had lawfully concluded that section 35(1)(a) was not engaged, and whether its observations about the public-interest balance amounted to an alternative determination.

1. Appeal allowed. The First-tier Tribunal made a material error of law. Its decision was set aside and the appeal was remitted to a newly constituted First-tier Tribunal for an oral hearing.

2. The First-tier Tribunal did not decide, in the alternative, that disclosure was required by the public-interest balance in section 2(2)(b) of the Freedom of Information Act 2000. Its conditional comments on that issue were provisional and obiter. The only basis of its decision was its conclusion that section 35(1)(a) was not engaged.

3. Section 35(1)(a) is not confined to high-level government policy. Information related to a settled objective may also relate to the formulation or development of subordinate policies, detailed options or policies connected with that objective. Conversely, such a relationship does not automatically engage the exemption: the information must in fact relate to formulation or development rather than implementation.

4. The distinction is fact-specific and required careful examination of all relevant evidence. The First-tier Tribunal erred by treating the settled policy of maintaining the Union as the only relevant policy, and by failing adequately to interrogate open and closed evidence indicating that the polling also related to policy formulation or development beneath that policy. Its inquisitorial role required it to consider that evidence and give adequate reasons for its conclusion.

5. The Upper Tribunal held that the requested information engaged section 35(1)(a). It could not itself determine the public-interest balance, because the First-tier Tribunal had made no findings on it, the issue required fresh consideration, and procedural fairness might require further evidence and submissions. The remitted tribunal was directed to proceed on the basis that section 35(1)(a) is engaged.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the Cabinet Office’s appeal, set aside the First-tier Tribunal’s decision for material error of law, and remitted the appeal for redetermination: [2024] UKUT 76 (AAC).
• First-tier Tribunal (General Regulatory Chamber) (Information Rights): On 10 June 2021, allowed Mr Sheppard’s appeal against the Information Commissioner’s decision, holding that section 35(1)(a) of the Freedom of Information Act 2000 was not engaged: EA/2020/0081P.