Cabinet Office v The Information Commissioner and Sheppard (MP)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wright |
| Neutral Citation | [2024] UKUT 76 (AAC) |
| Published date | 18 April 2024 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
1
IN THE UPPER TRIBUNAL UT ref: UA-2021-000017-GIRF
ADMINISTRATIVE APPEALS CHAMBER [2024] UKUT 76 (AAC)
On appeal from First-tier Tribunal (General Regulatory Chamber) (Information Rights)
Between: The Cabinet Office Appellant
- v –
The Information Commissioner First Respondent
and
Tommy Sheppard M.P. Second Respondent
Before: Upper Tribunal Judge Wright
Decided after a hearing on 26 September 2023
Representation: Ivan Hare KC and Stephen Kosmin of counsel for the Cabinet
Office
Will Perry of counsel for the Information Commissioner
Raphael Hogarth of counsel for Tommy Sheppard M.P.
Decision date: 5 March 2024
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the
First-tier Tribunal dated 10 June 2021 under reference EA/2020/0081P involved the
making of a material error of law and is set aside pursuant to section 12(2)(a) of the
Tribunals, Courts and Enforcement Act 2007.
The Upper Tribunal is not able to redecide the appeal. It therefore remits the appeal
to redecided by a completely newly constituted membership of the First-tier Tribunal
pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.
Further pursuant to that section 12(2)(b)(i), the Upper Tribunal directs: (i) that the
remitted appeal is to be decided after an oral hearing before the First-tier Tribunal,
and (ii) that the appeal is to be decided by the First-tier Tribunal on the basis that
section 35 of the Freedom of Information Act 2000 is engaged.
Any further directions, including expedition of the appeal and whether the Cabinet
Office remains or needs to be made a party to the First-tier Tribunal proceedings, are
for the First-tier Tribunal.
Cabinet Office v Information Commissioner and Tommy Sheppard MP
[2024] UKUT 76 (AAC)
2
REASONS FOR DECISION
Introduction
1. This appeal is about whether the First-tier Tribunal in its decision of 10 June
2021 (“the FTT”) erred in law in allowing Mr Sheppard M.P.’s appeal by concluding
on the evidence and arguments before it that the requested information did not
engage the exemption in section 35(1)(a) of the Freedom of Information Act 2000
(“FOIA”). The consequence of the FTT’s decision was that the legal basis for the
Cabinet Office refusing the request for information under FOIA was not made out.
But for the Upper Tribunal suspending the effect of the FTT’s decision until these
appeal proceedings concluded, the result of the FTT’s decision would have been the
provision of the requested information.
2. What this appeal is not about is political questions concerning the merits or
demerits of devolved settlements made with the constituent countries of the United
Kingdom or whether any of those constituent countries should be independent
nations. Nor was it argued as such.
3. This is the open decision on this appeal. A closed decision accompanies it,
though it will only be issued to the Cabinet Office and the Information Commissioner.
Relevant background
4. The appeal arises from a request made by Mr Sheppard, M.P., to the Cabinet
Office on 3 June 2019 in which he said:
“ Please send me:
- All information relating to polling the general public on their perception on
the strength of the union since January 2018. This includes any spending
on such polling in each month by your Department.
- All information relating to contact from your Department with Ipsos Mori
in the last 6 months for polling on the general public's perception of the
state of the union.
I would like the above information to be provided to me electronically at
[email address].
If this understanding is too wide or unclear, I would be grateful if you
contact me as I understand that under the Act, you are required to advise
and assist requesters. If any of this information is already in the public
domain, please can you direct me to it, with page references and URLs if
necessary.”
5. The request was refused by the Cabinet Office on 1 July 2019 under section
35(1)(a) of FOIA. The Cabinet Office told Mr Sheppard that it held the requested
information but “it is being withheld as it is exempt under section 35(1)(a) of the
Freedom of Information Act 2000…, as it relates to the formulation or development
of government policy”. The refusal letter continued:
“Section 35 is a qualified exemption and | have considered the public
interest for and against disclosing the information. The Cabinet Office
recognises that the decisions ministers make may have a significant
impact on the lives of people across the UK. These public interests have
to be weighed against a strong public interest that policymaking and its
implementation are of the highest quality and informed by a full
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