Cabinet Office v Information Commissioner and Morland
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wikeley,Judge Markus,Judge Wright |
| Neutral Citation | [2018] UKUT 67 (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 | 15 March 2018 |
[2018] AACR 28
CO v IC and Morland
(Three-Judge Panel)
1
[2018] AACR 28
(Cabinet Office v Information Commissioner and Morland [2018] UKUT 67(AAC))
Judge Wikeley GIA/933/2017
Judge Wright
Judge Markus QC
1 March 2018
Freedom of information – proper application of sections 35(1)(a) and 37(1)(b) of the
Freedom of Information Act 2000 (FOIA) – exemption not dealt with by the Information
Commissioner
On 8 April 2015 Mr Morland made a freedom of information request to the Cabinet Office for minutes of an
official meeting relating to proposals for a National Defence Medal for veterans. The Cabinet Office refused the
request in reliance upon section 37(1)(b) (Communications with Her Majesty, etc and honours) and section
35(1)(a) (Formulation of government policy, etc) of the Freedom of Information Act 2000 (“FOIA”). The
Information Commissioner issued a Decision Notice, upholding the Cabinet Office’s reliance on section 37(1)(b)
of FOIA. The Decision Notice expressly omitted consideration of the Cabinet Office’s reliance on section
35(1)(b). Mr Morland appealed to the First-tier Tribunal (F-tT). The F-tT allowed the appeal. In doing so, the F-
tT concluded that (i) the scope of the request was narrower than the Decision Notice found it to be; (ii) section
37(1)(b) FOIA was not engaged by the information request; and (iii) (while expressing doubt that it is open to it
to reach a view as to section 35(1)(a) FOIA, when that exemption was not adjudicated upon by the Information
Commissioner) section 35(1)(a) was not engaged at the time of the request. The Cabinet Office appealed to the
Upper Tribunal (UT). The issues before the UT were: whether the F-tT properly applied section 37(1)(b) FOIA;
whether the Ft-T properly applied section 35(1)(a) of FOIA; and if the answer to either or both of the two
questions was in the negative, what consequences followed
Held, allowing the appeal, that:
1. section 37(1)(b) must be read against the backdrop of section 37 as a whole (paragraph 20);
2. the focus of section 35(1)(a) itself, on any plain reading, is on the content of the requested information
and not on the timing of the FOIA request in relation to any particular decision-making process (paragraph
29);
3. the question of whether the policy-making process is still ‘live’ is an issue that goes to the assessment
of the public interest balancing test, and not to whether the section 35(1)(a) exemption is engaged in the first
place (paragraph 31).
4. where a public authority has relied on two exemptions (‘E1’ and ‘E2’), and the Commissioner decides
that E1 applies and does not consider E2. Then if the F-tT agrees with the Commissioner’s conclusion
regarding E1, it need not also consider whether E2 applies. Where the F-tT disagrees with the
Commissioner’s conclusion on E1 it must consider whether E2 applies and substitute a decision notice
accordingly (paragraph 39);
5. once section 37(1)(b) (E1) had been knocked out, the section 35(1)(a) exemption (E2) had to be
addressed by the Ft-T precisely because it could not be remitted for further consideration b y the Information
Commissioner (paragraph 40).
The UT set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be re-
decided in accordance with directions.
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