Introduction

Cabinet Office v. Information Commissioner and Morland ([2018] UKUT 67 (AAC)) is a pivotal case decided by the Upper Tribunal (Administrative Appeals Chamber) on March 1, 2018. The case centers around the application of the Freedom of Information Act 2000 (FOIA) in the context of exemptions related to the conferral of honours and the formulation of government policy. Mr. Morland, alongside other campaigners, sought access to minutes of the Honours and Decorations Committee (HDC), specifically concerning the proposed creation of a National Defence Medal (NDM). The crux of the dispute lies in whether the Cabinet Office correctly invoked FOIA exemptions to withhold this information.

Summary of the Judgment

The Upper Tribunal allowed the appeal lodged by the Cabinet Office against the First-tier Tribunal's decision to release redacted minutes of the HDC meeting. The First-tier Tribunal had previously found that two qualified exemptions under FOIA—sections 37(1)(b) and 35(1)(a)—were not engaged, thereby not proceeding to the public interest test. However, the Upper Tribunal identified errors in this legal interpretation, particularly in the narrow application of these exemptions. Consequently, the case was remitted to a different First-tier Tribunal for a re-hearing, with specific directions to exclude previous adjudicators and to focus solely on the public interest balancing test given the engagement of the aforementioned exemptions.

Analysis

Precedents Cited

The Judgment extensively references key cases that have shaped the interpretation of FOIA exemptions:

• APPGER v Information Commissioner and Foreign and Commonwealth Office [2016] AACR 5: This case elucidates the broad interpretation of "relates to" within FOIA, emphasizing that exemptions cover information that has any connection to the subject matter.
• UCAS v Information Commissioner and Lord Lucas [2015] AACR 25: Affirmed the approach that "relates to" necessitates a tangible connection or relevance to the statutory provision.
• Pepper (Inspector of Taxes) v Hart [1992] UKHL: Established criteria for using extrinsic materials in statutory interpretation, which the Tribunal deemed not applicable in relying solely on official guidance documents.
• Department for Business Enterprise & Regulatory Reform v O'Brien: Highlighted that the timing of a FOIA request impacts the public interest balancing test but not the engagement of the exemption itself.
• Information Commissioner v Bell: Addressed the procedural aspect of whether the First-tier Tribunal can remit a case back to the Information Commissioner, ultimately limiting such remittals.

These precedents collectively influenced the Upper Tribunal's decision to adopt a broader interpretation of the FOIA exemptions, ensuring that both existing and potential future honours are encompassed within the exemption's scope.

Legal Reasoning

The Upper Tribunal identified two primary errors in the First-tier Tribunal's application of FOIA exemptions:

• Narrow Interpretation of Exemption Sections: The Tribunal erroneously confined section 37(1)(b), which covers the conferral of any honours or dignities by the Crown, to only existing honours. The correct interpretation, influenced by precedents like APPGER and UCAS, requires a broader view that includes discussions about the creation of new honours.
• Misapplication of Section 35(1)(a): The First-tier Tribunal improperly assessed whether the policy regarding the NDM was "still being formulated or developed" rather than determining if the information itself related to the formulation or development of government policy, regardless of the policy's current status.

The Upper Tribunal reasoned that the statutory language "relates to" should be interpreted widely, encompassing any connection to the conferral of honours, including discussions about creating new ones like the NDM. Additionally, the timing of the FOIA request should influence the public interest test, not the initial engagement of the exemption.

Impact

This Judgment significantly broadens the interpretation of FOIA exemptions, particularly in the realm of honours and policymaking discussions. By affirming that both existing and proposed honours fall under section 37(1)(b), the decision ensures greater confidentiality for governmental deliberations on new awards. Furthermore, the clarification regarding section 35(1)(a) emphasizes that the relationship of the information to policy formulation is paramount, irrespective of the policy's stage. This sets a precedent for future cases where the scope of exemptions may be contested, thereby impacting transparency and access to governmental processes.

Complex Concepts Simplified

Freedom of Information Act (FOIA) Exemptions

The FOIA provides the public with the right to access information held by public authorities. However, it includes exemptions to protect sensitive information. The relevant sections in this case are:

• Section 37(1)(b): Protects information related to the conferral of any honour or dignity by the Crown, intending to maintain confidentiality around the awarding process.
• Section 35(1)(a): Concerns the formulation or development of government policy, safeguarding the deliberative processes involved in policymaking from premature disclosure.

Public Interest Balancing Test

When an exemption under FOIA is invoked, the public authority must prove that withholding the information outweighs the public's interest in accessing it. This involves assessing factors like the nature of the information, the potential harm from disclosure, and the benefits of transparency.

Remittal

Remittal refers to the process where a higher court sends a case back to a lower court for reconsideration in light of new findings or legal interpretations. In this Judgment, the Upper Tribunal remitted the case to a new First-tier Tribunal with specific directions to address the identified legal errors.

Conclusion

The Cabinet Office v. Information Commissioner and Morland Judgment marks a significant development in interpreting FOIA exemptions. By advocating for a broader understanding of both section 37(1)(b) and section 35(1)(a), the Upper Tribunal reinforces the protection of governmental deliberations concerning honours and policy formulations. This decision not only rectifies the legal misapplications of the First-tier Tribunal but also sets a clear precedent for future cases, ensuring that sensitive information related to honours and policy-making processes remains shielded unless compelling public interest arguments dictate otherwise. Consequently, this Judgment underscores the delicate balance between transparency and confidentiality in governance, shaping the landscape of information rights in the United Kingdom.