Information Commissioner v Malnick and the Advisory Committee on Business Appointments: [2018] UKUT 72 (AAC): [2018] AACR 29
| Jurisdiction | UK Non-devolved |
| Judge | Judge Markus,Judge Wikeley,Judge Wright |
| Neutral Citation | [2018] UKUT 72 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Information rights,Information rights - Freedom of information - qualified exemptions,Information rights - Information rights: practice,procedure,Three Judge Panel |
| Date | 01 March 2018 |
| Published date | 03 April 2018 |
[2018] AACR 29
(IC v EM and ACOBA)
(Three-Judge Panel)
1
[2018] AACR 29
(Information Commissioner v Malnick and the Advisory Committee on Business
Appointments
[2018] UKUT 72 (AAC)
Judge Wikeley GIA/447/2017
Judge Markus QC
Judge Wright
1 March 2018
Freedom of information – proper approach to applying section 36
Tribunal practice and procedure – First-tier Tribunal no power to remit case to
Information Commissioner
Mr Malnick, a journalist, wrote to the Advisory Committee on Business Appointments (ACOBA), a non-
departmental body, to request copies of all correspondence, and records of all conversations, between ACOBA
and Tony Blair (or his representatives) in the period from July 2005 to July 2009. Ministers must consult
ACOBA about any appointments o r employment they wish to take up within two years of leaving office, and
ministers are under a “code of honour” to abide by its advice. Mr Malnick requested the information arguing that
the case exemplified public concern about former Ministers obtaining lucrative post-office appointments.
ACOBA refused to disclose the information relying on the exemptions in section s 36(2)(b), 36(2)(c) (prejudice
to effective conduct of public affairs) and 40(2) (personal information) of the Freedom of Information Act 2000
(FOIA). Mr Malnick then complained to the Information Commissioner who concluded that the information was
exempt from disclosure under both section 36(2)(b) and (c) and so did not go on to consider the application of
section 40(2). Mr Malnick appealed to the First-tier Tribunal (F-tT) which allowed the appeal holding that
section 36 was not engaged but that, if it was, then the public interest favoured disclosure and that the decision
notice was not in accordance with the law and that the Commissioner would need to issue a new decision notice
which did not rely on section 36 thereby allowing her to consider whether section 40(2) applied. The section 36
exemption is engaged if, in the reasonable opinion of ACOBA’s designated “qualified person” (QP), disclosure
of the requested information would be prejudicial to the effective conduct of public affairs. Only if that threshold
is passed will ACOBA (not the QP) proceed to the second stage and decide whether the public interest in
maintaining the exemption outweighs the public interest in disclosing it. The Commissioner appealed to the
Upper Tribunal (UT) arguing that (1) the F-tT had erred in ho lding that section 36 was not engaged because the
opinion of the QP was not a reasonable one, (2) it had also erred in its assessment of the balance of public
interest under section 36, and (3) that it had no power to order the Commissioner to issue a new decision notice.
ACOBA was subsequently joined as a party to the appeal and supported the Commissioner on grounds (1) and
(2) but not (3).
Held, allowing the appeal, that:
1. the F-tT erred in law by taking into account matters of public interest when deciding whether the
opinion of the QP was reasonable for the purpose of section 36(2), thereby conflating what were two separate
structural steps. Moreover the F-tT s decision that the QP’s opinion was not reasonable was irrational as its
analysis of the impact of the court of public opinion was not rationally connected to the threshold question.
Section 36(2) is concerned with substantive but not procedural reasonableness (paragraphs 31 to 38, 39 to 42 and
56);
2. in considering the public interest balancing test the F-tT failed to ascribe any or appropriate weight to
the QP’s opinion (paragraphs 64 to 66);
3. when the F-tT allows an appeal against a decision of the Information Commissioner it does not have
power to remit the case to the Commissioner and it must substitute a decision notice (paragraph 97).
The panel set aside the decision of the F -tT and remitted the appeal to a differently constituted tribunal to be re -
decided in accordance with its directions.
[2018] AACR 29
(IC v EM and ACOBA)
(Three-Judge Panel)
2
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by the appellant.
The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights)
dated 3 November 2016 under file reference EA/2016/0055 involves an error on a point of
law. The First-tier Tribunal’s decision is set aside.
The Upper Tribunal is not in a position to re-make the decision under appeal. It follows that
the first respondent’s appeal against the Information Commissioner’s decision notice
FS50591296, dated 3 February 2016, is remitted to be re-heard by a different First-tier
Tribunal in accordance with the decision of the Upper Tribunal and subject to the directions
below.
This decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and
Enforcement Act 2007.
DIRECTIONS
The following directions apply to the re-hearing:
(1) The new First-tier Tribunal should not involve either the tribunal judge or
either of the two members who were previously involved in considering this
appeal on 21 September 2016.
(2) These directions may be supplemented by later directions issued by the
tribunal caseworker, the registrar or a tribunal judge in the General Regulatory
Chamber of the First-tier Tribunal.
REASONS FOR DECISION
Introduction
1. The Ministerial Code (The Cabinet Office, latest edition December 2016) provides
that, on leaving office, Ministers (and senior civil servants) must seek advice from the
Advisory Committee on Business Appointments (ACOBA) about any appointments or
employment which they wish to take up within two years of leaving office, and that they must
abide by that advice. ACOBA is a non-departmental public body, sponsored by the Cabinet
Office. The Code is characterised as a code of honour. Thus ACOBA has no power to compel
former ministers either to seek advice before taking up appointments or to accept the advice
given.
2. The Government’s Business Appointments Rules for Former Ministers explain the
process for making applications to ACOBA and the tests adopted by ACOBA in considering
applications. The rules also stipulate that approaches to the committee are handled in
[2018] AACR 29
(IC v EM and ACOBA)
(Three-Judge Panel)
3
confidence and remain confidential until an appointment or employment is publicly
announced or taken up, at which time ACOBA publishes its advice (whether or not the advice
was followed). ACOBA’s policy is also to confirm whether or not its advice has been sought
in relation to any specified appointment.
3. Mr Malnick is a journalist. On 19 February 2015 he wrote to ACOBA requesting:
“copies of all correspondence, or records of oral conversations, between ACOBA
and Tony Blair/Mr Blair’s representatives, in the period from July 2005 to July
2009.”
4. There cannot be many reading this decision who need to be reminded that the Rt. Hon
Tony Blair was the United Kingdom’s Prime Minister until June 2007. According to Mr
Malnick’s skeleton argument, Mr Blair’s “case has come to exemplify public concern at
former ministers obtaining lucrative post-office appointments. If ever there was a case for
transparency, it is this one”.
5. On 30 March 2015 ACOBA refused to disclose the information requested by Mr
Malnick, relying on the exemptions in section 36(2)(b)(i) and (ii), section 36(2)(c) and section
40(2) of the Freedom of Information Act 2000 (FOIA).
6. Mr Malnick then complained to the Information Commissioner (Commissioner). The
Commissioner concluded that the information was exempt from disclosure under both section
36(2)(b) and (c) (prejudice to effective conduct of public affairs) and so did not go on to
consider the application of section 40(2) (personal information).
7. Mr Malnick appealed to the First-tier Tribunal (F-tT) which allowed the appeal on the
ground that section 36 was not engaged but that, if it was, the public interest favoured
disclosure. The F-tT held that the decision notice was not in accordance with the law and that
the Commissioner would “therefore need to issue a new decision notice, which does not rely
on [section 36]”. The purpose of this order was to allow the Commissioner to consider
whether the information was exempt under section 40(2), an issue which the Commissioner
had not yet considered and which the F-tT did not consider was in play in the appeal before it.
8. The Upper Tribunal (UT) gave the Commissioner permission to appeal on the
following three grounds:
a. Ground 1: The F-tT erred in law in holding that section 36 was not engaged
because the opinion of the Qualified Person (QP) was not a reasonable one.
b. Ground 2: The F-tT erred in its assessment of the balance of public interest under
section 36.
c. Ground 3: The F-tT had no power to order the Commissioner to issue a new
decision notice.
9. ACOBA was subsequently joined as a party to the appeal. An application by ACOBA
to add its own further ground of appeal relating to what was claimed to be procedural
unfairness on the part of the F-tT was unsuccessful. ACOBA supports the Commissioner on
Grounds 1 and 2 but not on Ground 3. In this decision we refer to the Commissioner and
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