The Cabinet Office v The Information Commissioner

For Freedom of Information Act 2000 section 36(2)(c) to apply, the qualified person’s reasonable opinion must identify prejudice to the effective conduct of public affairs which is other than the inhibition of advice or deliberative exchanges covered by section 36(2)(b). A general candour or chilling-effect case does not establish that distinct prejudice.

Where section 36(2)(b) is engaged, its public-interest balance requires proper weight for frank advice and deliberation. That protection may nevertheless yield to compelling transparency and accountability considerations. In an unusual case involving serious and credible questions concerning a serving minister’s compliance with clear conduct rules, and an absence of meaningful accountability by other means, disclosure may be required. The identities of junior or non-public-facing officials may remain protected where disclosure creates a real and credible chilling effect.

The Cabinet Office appealed from the First-tier Tribunal’s dismissal of its appeal against an Information Commissioner decision notice. The notice held that the Cabinet Office had properly engaged the section 36 exemption for material concerning Priti Patel’s appointment with Viasat and her engagement with the Advisory Committee on Business Appointments, but that the public interest favoured disclosure subject to redactions.

The parties agreed that the First-tier Tribunal decision contained errors of law and should be set aside. They differed on the remade decision: the Cabinet Office sought continued withholding, while the Commissioner sought disclosure with all names redacted save for three individuals identified in a confidential annex. The Upper Tribunal also determined whether section 36(2)(c) was engaged and remade the public-interest assessment.

1. Appeal allowed; First-tier Tribunal decision set aside and remade. The Tribunal’s decision contained agreed errors of law in its reasoning on the public-interest balance and its use of irrelevant matters. The Upper Tribunal rejected, however, the separate allegation that the First-tier Tribunal had abdicated its independent judicial function: it had undertaken its own analysis, albeit defectively.

2. Section 36(2)(c) was not engaged. The qualified person’s opinion identified only prejudice arising from inhibited free and frank discussion, the provision of advice, and deliberative exchanges. Those matters fell within section 36(2)(b)(i) and (ii). Section 36(2)(c) requires a distinct form of “otherwise” prejudice. Mr Madden’s additional evidence likewise described consequences flowing from loss of candour rather than a separate head of prejudice.

3. The public-interest balance favoured disclosure. There was a strong public interest in protecting candid internal discussion about allegations concerning a senior minister. The court gave appropriate, rather than automatically decisive, weight to the Cabinet Office evidence and the qualified person’s opinion. Civil servants nevertheless act against the background that information may be disclosed where the public interest requires it.

4. Disclosure was justified by the serious and credible questions raised by the retrospective ACOBA application, the clarity of the applicable standards, and the significant deficit in other transparency and accountability mechanisms. ACOBA had not known the application was retrospective and had not issued correspondence addressing it. Nor had there been a Prime Ministerial investigation or public conclusion. The minister’s 2017 resignation correspondence was relevant context, without requiring the Tribunal to determine whether the Ministerial Code had been breached.

5. The public-interest balance was close, and did not depend on later bullying allegations. Nonetheless, the remaining factors outweighed the public interest in withholding the information. The Cabinet Office was ordered to disclose it within 35 days, while redacting all names except the three persons identified in the confidential annex. The identities of junior and non-public-facing officials remained protected because disclosure posed a real and credible chilling risk.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the Cabinet Office’s appeal, set aside the First-tier Tribunal decision for legal error, and remade the decision: [2025] UKUT 114 (AAC).
• First-tier Tribunal (General Regulatory Chamber, Information Rights): Dismissed the Cabinet Office’s appeal from the Information Commissioner’s decision notice dated 4 August 2022: EA/2022/0253.
• Information Commissioner: Held that the Cabinet Office had correctly engaged section 36 of the Freedom of Information Act 2000, but ordered disclosure in the public interest subject to redactions.