Latest updates - last updated 13 January 2023
14 August 2023
We have included the following new Further Reading resource:
- Keeping internal consultations on FOI requests timely and transparent - a short guide for public authorities
13 January 2023
Section 35(1)(a) – government policy
A decision notice demonstrates that reviewing a policy does not necessarily amount to its development.
Under the public interest factors for s35(1)(a) Tribunal decisions explain the weakness of arguments that responding to one requests will lead to the routine of disclosure of similar information. Another provides guidance on policies that have many strands and which span several years.
Section 35(1)(b) – Ministerial communications
New examples demonstrate the scope of this exemption and the application of the public interest, including to Cabinet minutes.
Section 35(1)(c) – Law Officers’ advice
Two Upper Tribunal cases illustrate that the public interest in maintaining the exemption includes arguments around legal professional privilege and, in addition, the value of preserving the Law Officers’ convention.
Section 35(1)(d) – Ministerial private office
Tribunal decisions provide guidance on the limits to the scope of the exemption and weighing the public interest factors in favour of maintaining the exemption.
Section 35(3) - NCND
More examples are provided of how the NCND provisions apply to Law Officers’ advice.
Public interest test
The need for a contents based approach is illustrated by an Upper Tribunal decision. Another Upper Tribunal case sets out the case law on scepticism for chilling effect arguments. And a First Tier Tribunal decision illustrates the public interest in disclosing the views promoted by lobbyists.
About this detailed guidance
This guidance discusses section 35 of FOIA – the formulation and development of government policy exemption – in detail and is written for use by public authorities. Read it if you have questions not answered in the guide, or if you need a deeper understanding to help you apply section 35 in practice.
- What are the general principles of the exemption?
- How do we interpret ‘relates to’?
- How do we apply the exemption relating to the formulation or development of government policy?
- How do we apply the exemption relating to Ministerial communications?
- How do we apply the exemption relating to Law Officers’ advice?
- How do we apply the exemption relating to the operation of any Ministerial private office?
- Can all the exemptions apply to statistical information?
- How do we apply the ‘neither confirm nor deny’ exemptions?
- How do we apply the public interest test?
- Are there any other considerations?
- Further reading
The purpose of section 35 is to protect good government. It reflects and protects some longstanding constitutional conventions of government, and preserves a safe space to consider policy options in private.
It applies only to information held by central government departments or the Welsh Government. Other public authorities holding the same or similar information may instead consider section 36 (prejudice to the effective conduct of public affairs).
Section 84 defines “government department” as including a Northern Ireland department and any other body or authority exercising statutory functions on behalf of the Crown (not including Scottish bodies or the security services).
Section 35 is class-based, meaning you do not need to consider the sensitivity of the information in order to engage the exemption. It must simply fall within the class of information described. The classes are interpreted broadly and catch a wide range of information.
However, it is also a qualified exemption. This means that even if the exemption is engaged, you must go on to apply the public interest test. You can only withhold the information if the public interest in maintaining the exemption outweighs the public interest in disclosure.
There is no inherent or automatic public interest in withholding information just because it falls within a class-based exemption. You need to consider the content and sensitivity of the particular information and the effect of its release in all the circumstances of the case before you can justify withholding the information. See the section below on ‘How do we apply the public interest test?’ for more information on public interest arguments.
Section 35 sets out four separate classes of information, each relating to a different activity. You should think of these as four separate exemptions:
(a) the formulation or development of government policy,
(b) Ministerial communications,
(c) the provision of advice by any of the Law Officers or any request for such advice, or
(d) the operation of any Ministerial office.
They may sometimes overlap, so that the same information falls within more than one of the exemptions. However, each has a slightly different emphasis. This means that even for the same information, the weight and focus of the public interest factors relevant to each exemption can differ. You must clearly identify which of the exemptions applies, and explain the public interest balance for each one.
Each of the four exemptions in section 35 covers information that relates to a particular activity. The term ‘relates to’ can be interpreted broadly: see DfES v Information Commissioner & the Evening Standard (EA/2006/0006, 19 February 2007).
Upper Tribunals have also considered the term as applied to other exemptions and provisions within FOIA.
In Cabinet Office v Information Commissioner and Morland  UKUT 67 (AAC) GIA/933/2017, 1 March 2018 the Upper Tribunal considered information that had been withheld under both section 37 and section 35. In respect of section 37 the UT found that:
“Case law has established in the FOIA context that “relates to” carries a broad meaning (see APPGER v Information Commissioner and Foreign and Commonwealth Office  AACR 5 at [13 to 25). In UCAS v Information Commissioner and Lord Lucas  AACR 25 at  the UT approved the approach of the F-tT [First tier Tribunal] in the APPGER case where it said that “relates to” means that there must be “some connection” with the information or that the information “touches or stands in relation to” the object of the statutory provision.” (paragraph 18)
Although that quotation referred to a different exemption, we consider the term should be interpreted consistently within FOIA.
This means the information does not have to be created as part of the activity. Any significant link between the information and the activity is enough. Information may ‘relate to’ the activity due to its original purpose when created, or its later use, or its subject matter. Information created before the activity started may still be covered if it was used in or affected the activity at a later date. And information created after the activity was complete may still be covered if it refers back to the activity.
Note that the timing of the request is not relevant here. The question is whether the information relates to the activity, irrespective of when the request was made.
In Morland the Upper Tribunal considered a request for information about a proposed new military honour. The First Tier Tribunal had found that section 35(1)(a) was not engaged because, by the time of the request, the policymaking process had been completed. In overturning that decision, the Upper Tribunal stated at paragraph 28 that the First Tier Tribunal had fallen:
“… into error by treating the state of the policy process as in effect determining whether or not the section 35(1)(a) exemption was engaged. Instead, given the breadth of the wording of the statutory provision, the F-t-T should simply have asked itself (at this stage of the analysis) whether the requested information related to the process of policy formulation or development. That question is unaffected by the date of the FOIA request.”
And at paragraph 29,
“… 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.”
If the majority of a piece of information relates to a particular activity, any associated or incidental information also relates to that activity, even if in isolation it is not covered.
In practice, this means that, when engaging the exemptions, you generally do not need to consider information line by line. If a document is clearly divided into sections that each cover a separate topic, you can consider it section by section. If you cannot easily divide a document in this way, you can consider the document as a whole. If one purpose, use or subject of that document (or section) is a relevant activity, then everything within that document (or section) relates to it.
In DfES v Information Commissioner & the Evening Standard (EA/2006/0006, 19 February 2007), the Information Tribunal considered whether minutes of meetings about a funding crisis in schools were exempt. One of these documents gave a summary of the background to the crisis. The decision notice found that one bullet point suggesting a possible policy approach was covered by the exemption, but the rest of the document was not.
The Information Tribunal found that the whole document was covered: “If the meeting or discussion of a particular topic within it was, as a whole, concerned with s35(1)(a) activities, then everything that was said and done is covered. Minute dissection of each sentence for signs of deviation from its main purpose is not required nor desirable.”
The activity does not have to be the sole or even the main focus of the document (or section), as long as it is one significant element of it. However, this does not mean that a whole document is covered by the exemption just because it contains a minor passing reference to a relevant activity. In such cases only the actual reference itself is covered.
However, in some cases you need to take a more detailed look at the information to engage the exemption. For example in Department of Health v Information Commissioner EA/2016/082 it was necessary to go through each individual entry of a Minister’s diary to identify those meetings that related to policy discussion, those that were in effect Ministerial communications, and so on.
In some cases, you also need to go through a document in detail to isolate any statistical information. This is because once a policy decision has been made, any background statistical information cannot be covered by sections 35(1)(a) or 35(1)(b). See the section below on ‘Can all the exemptions apply to statistical information?’ for more details.
Section 35(1)(a) covers information relating to the formulation or development of government policy:
35.—(1) Information held by a government department or by the Welsh Government is exempt information if it relates to—
(a) the formulation or development of government policy
The purpose of section 35(1)(a) is to protect the integrity of the policymaking process, and to prevent disclosures that would undermine this process and result in less robust, well-considered or effective policies. In particular, it ensures a safe space to consider policy options in private.
In Department of Health v Information Commissioner (EA/2018/0001 & 0002, 26 February 2019) the First Tier Tribunal considered a request for access to draft versions of the government’s Childhood Obesity plan. The First Tier Tribunal set out the purpose of the exemption at paragraph 138 in the following terms,
“We accept that the purpose of s 35 is to protect good government. It reflects and protects some longstanding constitutional conventions of government. It reserves a safe space to consider policy options in private – civil servants and subject experts need to be able to engage in free and frank discussion of all the policy options internally, to be able to expose their merits and demerits and possible implications.”
In Her Majesty’s Treasury v Information Commissioner (EA/2007/0001, 7 November 2007) the Information Tribunal explained that the exemption was designed to protect
“… the efficient, effective and high quality formulation and development of government policy.” (paragraph 57(4))
As with the other limbs of section 35, this is qualified by the public interest test. You can only withhold the information if the public interest in maintaining the information outweighs the public interest.
Once a policy decision has been made, the exemption cannot apply to any background statistical information. See the section below on statistical information for more details.
FOIA does not define ‘government policy’. Section 35(5) states that it includes the policy of the Executive Committee of the Northern Ireland Assembly and the policy of the Welsh Government, but does not provide any further guidance.
The Modernising Government White Paper (March 1999) provided a useful description of policymaking as: “the process by which governments translate their political vision into programmes and action to deliver ‘outcomes’, desired changes in the real world”. In general terms, government policy can therefore be seen as a government plan to achieve a particular outcome or change in the real world. It can include both high-level objectives and more detailed proposals on how to achieve those objectives.
There is no standard form of government policy; policy may be made in various ways and take various forms.
The Cabinets of the UK and Welsh Governments and the Northern Ireland Executive Committee are the ultimate arbiters of their respective governmental policy. Within each administration, significant policy issues or those that affect more than one department are jointly agreed by Ministers. For example, within the UK government such issues are decided in Cabinet or Cabinet committee (although detailed policy proposals may then be developed within one department). See Chapter 4 of The Cabinet Manual (1st edition October 2011).
However, not all government policy needs to be discussed in Cabinet or Executive Committee and jointly agreed by Ministers. Some policy is formulated and developed within a single government department, and approved by the Minister responsible for that area of government.
It is not only Ministers who are involved in making government policy. Civil servants – and, increasingly, external experts and stakeholders – are also involved at various stages of the policy process. The important point is that government policy is ultimately signed off by the Cabinet or Executive Committee or the relevant Minister. This is because only Ministers have the mandate to make policy. If the final decision is taken by someone other than a Minister, that decision does not in itself constitute government policy.
However, this does not mean that every decision made by a Minister is automatically a policy decision. Ministers may also be involved in some purely political, administrative, presentational or operational decisions.
ICO decision notice FS50083726 found that a decision on which department should take the lead on the government’s response to an article published in The Lancet was not a government policy decision. It was an operational decision, even though Ministers were involved. Ministerial involvement did not automatically elevate it to a policy decision.
Departmental policies about the internal management and administration of individual departments are not government policy (eg HR, information security, management structure, or administrative processes). All public and private sector organisations need these sorts of policies in place. They are about managing the organisation.
To be exempt, the information must relate to the formulation or development of government policy. These terms broadly refer to the design of new policy, and the process of reviewing or improving existing policy.
However, the exemption does not cover information relating purely to the application or implementation of established policy. It is therefore important to identify where policy formulation or development ends and implementation begins.
This is not to say that policy design and implementation are always entirely separate. They are becoming increasingly integrated, and many implementation issues also relate to policy formulation. Considering the risks and realities of implementation may be an important factor when assessing policy options. If implementation issues are actively considered as part of the policy design (ie before a policy decision is finalised) and feed into that process, they will also relate to the formulation of the policy. See Formulation v implementation below for more information.
Even after a policy decision has been made, issues arising during implementation may then feedback into a policy improvement process, and some details may be adapted on an ad hoc basis during implementation. However, fine-tuning the details of a policy does not automatically amount to policy development, and sometimes may more accurately be seen as adjustments to its implementation. Whether a particular change amounts to policy development depends on the facts of that case. See Development v implementation below for more information.
The Commissioner does not accept that there is inevitably a continuous process or ‘seamless web’ of policy review and development. In most cases, the formulation or development of policy is likely to happen as a series of discrete stages, each with a beginning and end, with periods of implementation in between. This was the approach taken by the Information Tribunal in the following cases.
In DfES v Information Commissioner & the Evening Standard (EA/2006/0006, 19 February 2007) the Tribunal commented,
“When the formulation or development of a particular policy is complete …. is a question of fact. ….. As is plain however, we do not regard a “seamless web” approach to policy as a helpful guide to the question whether discussions on formulation are over.” (paragraph 75(v)
This approach was also adopted by the Information Tribunal in DWP v Information Commissioner (EA/2006/0040), 5 March 2007,
“It is interesting for us to note that the Tribunal in the DFES case [that the wording of section 35 seemed to envisage] policy formulation as a series of decisions rather than a continuing process of evolution. We agree with this interpretation and go on to find that in this case the two stage decision and policy formulation process can be considered separately at each stage rather than as a continuum.” (paragraph 56)
There are no universal rules: policymaking models are always evolving, and may vary widely between departments and situations. It is likely that some policy areas will follow a more rigid, formal development process to maintain stability and certainty, while other policy areas are more fluid and need to evolve quickly. Depending on the context, policymaking may also be proactive or reactive, formalised or unstructured, or even made ‘on the hoof’ as a form of crisis management.
ICO decision notice FS50451254 found that the government’s response to concerns over the safety of PIP breast implants in late 2011 was policymaking. The government was reviewing its position in the wake of the decision by the French government to recommend that individuals have the implants removed, and resulting media reports about their safety. There was no planned or formalised policy process, but policy was being made as an impromptu reaction to these events.
The key point is that policymaking can take place in various ways; there is no uniform process. You should consider whether information relates to the formulation or development of government policy on a case-by-case basis, focussing on the timing and precise context of the information in question.
Examples of different processes that might involve policymaking include:
- White Papers, bills and the legislative process;
- initiatives to review and improve existing policies;
- Ministerial speeches;
- press releases;
- responding to unexpected events;
- responding to questions put to Ministers; and
- unusually sensitive or high-profile operational decisions.
This list is not intended to be exhaustive. Nor does it imply that all such processes automatically amount to government policymaking – this depends on the facts of each case.
- The final decision will be made by the Cabinet or Executive Committee or the relevant Minister.
- The government intends to achieve a particular outcome or change in the real world.
- The consequences of the decision will be wide-ranging.
The term ‘formulation’ of policy refers to the early stages of the policy process where options are generated and analysed, risks are identified, consultation occurs, and recommendations or submissions are put to a Minister who then decides which options to translate into political action.
Given the various ways policy can be made, it is not always easy to identify exactly when a policy is finalised (ie when formulation ends and implementation begins).
The classic and most formal policy process involves turning a White Paper into legislation. The government produces a White Paper setting out its proposals. After a period of consultation, it presents draft legislation in the form of a bill, which is then debated and amended in Parliament. In such cases, policy formulation can continue all the way up to the point the bill finally receives royal assent and becomes legislation.
In Makin v Information Commissioner (EA/2010/0080, 5 January 2012), the First Tier Tribunal considered a request for information about certain provisions in the Legal Services Bill. It found that policy formulation was ongoing while the bill progressed through Parliament, until the date it received royal assent:
“It is clear that the relevant policy was under debate right through to the end of the parliamentary journey… It is in the nature of the legislative process that provisions remain under review through this process, particularly where they are actively under challenge.”
In other cases where legislation is not needed, a public announcement of the decision is likely to mark the end of the policy formulation process.
In DfES v Information Commissioner & the Evening Standard (EA/2006/0006, 19 February 2007), the Information Tribunal considered when the formulation of policy in response to a funding crisis in schools was complete. The Information Tribunal concluded:
“We think that a parliamentary statement announcing the policy… will normally mark the end of the process of formulation.”
In the context of announcing a new policy, the drafting of the announcement itself (eg a speech or press release) and discussions about its precise wording might itself be part of the policy formulation process.
ICO decision notice FS50451254 found that emails discussing a press release on PIP breast implants were part of the policymaking process. The government was reviewing its position in response to widespread media reports about the safety of the implants. The thinking process involved in formulating an official response in these circumstances constituted the formulation or development of government policy because it was apparent that the government was reviewing its position on the breast implants; so any official press release would be seen as indicative of its new approach.
For complicated policies, it is possible that formulation may continue even after this point. In some cases the government announces a high-level policy, or passes a ‘framework’ bill into law, but leaves the finer details of a policy still to be worked out. The high-level policy objective has been finalised, but detailed policy options are still being assessed and debated. Later information about the formulation of the detailed policy will still engage the exemption.
In DWP v Information Commissioner (EA/2006/0040, 5 March 2007), the Information Tribunal considered information about a feasibility study on the introduction of ID cards. A bill was presented to Parliament which established the principle of ID cards, and paved the way for secondary legislation which would set out the details of the scheme.
The Information Tribunal considered that the process of policy formulation could be split into two stages: an initial high-level decision to introduce ID cards, followed by further policy decisions on the detail of the scheme. The study in question had informed the initial high-level policy decision to introduce ID cards, and the exemption was engaged on that basis. But even after that high-level policy was finalised, later decisions on the details of the scheme to be set out in secondary legislation would still have been the formulation of policy.
Whether such decisions on detail remain formulation of policy, or are really about implementation, is a matter of degree. In line with the indicators of policymaking set out above, decisions on detail are more likely to constitute policy formulation if they need Ministerial approval, there are a range of options with differing outcomes in the wider world, and the consequences of the decisions are wide-ranging.
After legal action by miners, British Coal had to establish schemes to compensate miners for health problems caused by their work (the government later took responsibility for these schemes). The broad parameters for the schemes were initially set by the courts. However, some details were negotiated later between the government and the miners.
These decisions on the details can be seen as more than just implementing the court’s decision. Some aspects required the political judgement of Ministers, taking into account lobbying from MPs of mining areas. There were various possible outcomes, and the decisions set a precedent. They can be considered policy formulation or development.
On the other hand, if the remaining decisions are taken below Ministerial level, are managerial or administrative in nature, or don’t significantly affect overall outcomes in the wider world, it is likely that they are really decisions on implementation.
ICO decision notice FS50110031 considered information about the action being taken to ‘mainstream’ human rights within two government departments. The information covered issues such as management responsibility, staff training, levels of awareness, and departmental procedures to ensure compliance with human rights laws.
The Commissioner accepted that ensuring compliance with human rights laws was a government policy decision. However, organisational procedures to ensure it was properly reflected within each department were implementation rather than policy formulation (or development).
In some cases, the government may decide to run a pilot scheme or trial to test a potential policy on a small scale before deciding whether to roll it out in full. Piloting a policy is one way of gathering evidence on its efficacy before making a final decision on whether or not to take it forward. Pilot schemes may therefore form part of the policy formulation process, particularly if the scheme’s limits and end date are clearly defined, and no final decision has yet been taken on whether or in what form the policy should be adopted or rolled out more widely.
In Weiss v Information Commissioner & Home Office (EA/2011/0191, 20 February 2012) the First Tier Tribunal considered information about a pilot scheme to deport European nationals if they were not exercising a right to reside in the UK or were involved in a criminal activity. Although the government had the power to expel these individuals, no final decision had yet been made on whether to start doing so routinely. Ministers would consider the results of the pilot in deciding whether to fully implement the policy, and whether it needed further development.
The First Tier Tribunal found that the exemption was engaged: “… the disputed information relates to a scheme being used to evaluate the use of a power, to determine whether it should be used in future and, if so, how and in what circumstances: these are all questions of the formulation and development of government policy.”
In FS50850372 the Commissioner found the Department for Education was entitled to withhold information captured by a request made in March 2019. The request captured the results of a trial of assessments administered to reception classes, carried out in Autumn 2018 involving 300 primary schools.
Although that trial had been completed by the time of the request, a further pilot was being carried out and the results of that would be provided to Ministers in January 2020 to inform their decision as to whether the assessments should become a statutory requirement by Autumn that year.
The Commissioner was satisfied that the requested information related to a government policy and that policy development was ongoing.
However, this does not mean that anything labelled a ‘pilot scheme’ is automatically covered. Each case has to be decided on its own facts. Some schemes may really be the implementation of an initial policy decision, even if the government intends to review the scheme after a short time, or is making regular adjustments to the details as it goes. If a decision has been made to roll out a scheme indefinitely, or it will apply across the board (even for a relatively short time), it is more likely that a provisional policy decision has been made and the scheme is implementing that decision. However, any subsequent review or adjustment may still amount to a separate stage of policy development. See Development v implementation below.
Note that even if policy formulation is ongoing, this does not mean that all information remains equally sensitive right up to the point the policy is fully completed. The sensitivity of information is likely to wax and wane at different stages of that process. The timing of the request may therefore be very important when considering the public interest balance. See Public interest factors below for more information.
The term ‘development’ of policy includes the process of reviewing, improving or adjusting existing policy.
Not every decision or alteration made after an original policy is settled will amount to the development of that policy. If a policy is a plan to achieve a particular outcome in the real world, the development of that policy is likely to involve a review of its intended outcomes, or a significant change to the original plan. By contrast, minor adjustments made to adapt to changing circumstances, avoid unintended consequences, or better achieve the original goals might more accurately be seen as decisions on implementation.
In this context, the policy can be seen as a framework of ‘rules’ put in place to achieve a particular objective. This framework sets in stone some fundamental details, but also inevitably leaves more detailed decisions to be made by those implementing the plan, thus giving some inbuilt flexibility on how it can be delivered. Any such adjustment or decision that can be made within this inbuilt flexibility – ie without altering the original objectives or rules – is likely to be an implementation decision rather than policy development.
ICO decision notice FS50420602 considered whether a review of mathematical factors used to calculate police pension payments related to the development of government policy. The pension payments were governed by the Police Pension Regulations 1987, which said the factors would be prepared and updated by the scheme actuary. The Government Actuary’s Department (GAD) updated these figures from time to time using actuarial principles and methodology. This was an ongoing process: the factors could be reviewed at any time and no Minister was involved in these decisions. The Commissioner found that the process of GAD updating the factors did not amount to policy development. The regulations specifically provided for the factors to be updated in this way: it was built into the policy framework.
Who makes the decision is a helpful indicator here because as Ministers have the final say on government policy, only a Minister can approve a change to that policy. Any decisions or adjustments made by someone else is therefore implementation or management decisions, rather than policy development.
It is important to recognise, however, that not every decision by a Minister is automatically policy development. Ministers may sometimes be involved in making other decisions about the application, implementation or presentation of existing policy.
The more limited and case-specific a decision’s consequences, the less likely it is to be policy development. A decision on how existing rules apply to an individual case is likely to be a decision on the application of existing policy. For example, decisions about individual applications for licences or grants rarely constitute government policymaking, even if the decision has been made by a Minister.
Nonetheless, some such decisions may be so novel, high-profile or politically sensitive that they inevitably trigger a decision by the Minister on whether the existing policy is appropriate. The more wide-ranging a decision’s consequences and the more unusual or politically sensitive it is, the more likely it is to involve an element of policy review or development.
Cabinet Office v Information Commissioner & Aitchison (EA/2011/026t3, 15 October 2012) concerned a decision by a Minister on whether to allow the 1988 Nestlé takeover of Rowntree’s. This was a quasi-judicial decision on one particular takeover, taken in accordance with the existing regulatory regime for takeovers.
However, the Commissioner and First Tier Tribunal agreed that the information related to the formulation or development of government policy. There was significant public concern about the effect on the York economy and wider community. In this context, the implications of the decision were so important and politically sensitive that there was inevitably a government decision as to whether the existing process was appropriate, and the decision was raised to the level of government policymaking.
Ministers may also respond to questions or comments about the government’s position on an issue. Many of these responses simply involve the explanation, clarification or justification of existing policy. The response itself only constitutes policy formulation or development if the department can show that the question or comment triggered a genuine review of the existing government position, or related to a policy that was already under review.
ICO decision notice FS50083726 considered information about the government’s response to an article in the Lancet medical journal about the level of civilian casualties in Iraq following the 2003 invasion.
The Commissioner found that information about the government’s ‘lines to take’ to the press and to Parliament in response to the specific article did not amount to government policymaking: “a consequence of this approach would be that every time the government prepared and reacted to some negative (or indeed positive) comment in the media then such a process would constitute the formulation and development of government policy.”
However, some information about a more general strategic understanding and review of civilian casualties in order to shape future diplomatic and military strategies did relate to the formulation of government policy.
ICO Decision Notice FS50256412 considered briefing notes to the Prime Minister in advance of a meeting with the Countryside Alliance to discuss its concerns about the Hunting Act 2004. Although the Hunting Act had already been implemented, the briefing notes considered the feasibility of changes suggested by the Countryside Alliance. It was clear that the notes were in effect a review of aspects of the Hunting Act, and therefore related to the development of government policy.
A review of an existing policy may trigger further policy development. However, this does not mean that every exercise which monitors an existing policy, or the performance of bodies established under such a policy, relates to policy development.
In FER0831200 the Commissioner found that a report relating to the Forestry Commission and its commercial partner, Forest Holidays, did not relate to the development of government policy. The report had been produced by the Government Internal Audit Agency and considered the governance of the Forestry Commission.
The report clearly considered the existing framework under which the Forestry Commission operated. Defra suggested that it was a review that could influence Defra’s policy towards the future governance of the Forestry Commission. However, the Commissioner found that the report itself was an audit of the existing governance arrangements. Although such a report could inform changes to those arrangements in the future, the Commissioner was not satisfied there was any intention to use it for that purpose at the time of the request.
The example above demonstrates the need to be able to identify what policies may be the subject of further development as a result of any review or monitoring exercise, demonstrate that development is planned or underway, and explain how the requested information relates to the development of that policy. The vague possibility that the work may be the springboard for the further development of a policy in the future is unlikely to satisfy the Commissioner that section 35(1)(a) is engaged.
Arm’s-length bodies are public bodies created to carry out specific government functions at arm’s length from Ministers, although Ministers remain responsible to Parliament for their activities.
There are three main types of arm’s-length body:
- Non-Ministerial departments (NMDs) are government departments staffed by civil servants. However, they are not directly controlled by Ministers. Instead they have a board, which is usually appointed by a Minister. Examples include the Crown Prosecution Service and HM Revenue & Customs.
- Executive agencies are a well-defined unit within a government department with a focus on delivering specific outcomes. Respective roles and responsibilities of the agency and their department are usually set out in a framework document. Examples include HM Land Registry and the UK Border Agency.
- Non-departmental public bodies (NDPBs) are independent of central government departments. NDPBs may have advisory, executive, or tribunal functions. They are usually set up as separate legal entities, and employ their own staff. Examples include the Independent Police Complaints Commission, the Law Commission and the ICO.
However, it is only NMDs and executive agencies that are actually government departments (or part of one). As NDPBs are not considered part of a government department, they cannot generally use section 35 but may instead consider section 36 if any information relating to government policy that they hold is requested under FOIA.
In general, arm’s-length bodies are created to deliver specialist services that do not require the day-to-day engagement of Ministers, or which need to be independent of government. As only Ministers can make government policy, it follows that the day-to-day business of these bodies do not involve government policymaking. By delegating an activity to a body at arm’s length from Ministers, the government has in effect signalled that the activity is considered operational or otherwise independent of government.
ICO decision notice FS50420602 considered information about the review of factors used to calculate police pension payments. The Government Actuary’s Department (GAD), an NMD, was tasked with updating these figures from time to time using actuarial principles and methodology. No Minister was involved in this process.
The GAD argued that as responsibility for reviewing the figures had been delegated from the Home Secretary, this indicated it was government policymaking. The Commissioner decided that the delegation of the decision to an NMD without the need for Ministerial approval actually indicated the opposite: that the review process was part and parcel of the ongoing business of implementing the policy, rather than a process of policy development.
These bodies may still hold some information about the formulation or development of government policy. However, generally, they are unlikely to be involved in the actual policymaking process as regularly as a government department. When they are, this is usually in collaboration with a government department. This could, for example, involve using their significant expertise to provide advice to a government department on a particular issue. The final decision on whether to accept the body’s advice or recommendation rests with a Minister. Although they are more remote from the policy process, where NMDs and Executive Agencies do hold information relating to the formulation or development of government policy, the exemption provided by section 35(1)(a) is be available to them.
The exemption covers information that ‘relates to’ the formulation or development of government policy. This is interpreted broadly: see the main section on ‘How do we interpret relates to’ above.
This means that information relating to any significant extent to the formulation or development of policy is covered, even if it also relates to policy implementation or other issues. Policy formulation or development does not have to be the sole or main focus of the information, as long as it is one significant element of it.
The exemption is not limited to information directly created as part of the policy process. Information created after a policy is finalised can still be covered if it describes or otherwise refers to its formulation or development. See O’Brien v Information Commissioner / BERR (EA/2008/0011, 7 October 2008): “It is clear in our view that information does not have to come into existence before the policy is formed for section 35(1)(a) to apply.”
Neither is the exemption limited to information that contains policy options, advice or decisions. Pre-existing information about the history or factual background of a policy issue is also covered.
In DfES v Information Commissioner & the Evening Standard (EA/2006/0006, 19 February 2007), the Information Tribunal considered minutes of meetings about a funding crisis in schools. One of these documents gave a summary of the factual background to the issue, with only one bullet point suggesting a possible policy approach.
The Information Tribunal found that the whole document related to the formulation or development of government policy, saying: “… the immediate background to policy discussions is itself information caught by s35(1)(a), an inference which, we believe, is readily drawn from the wording of s35(4).” (Section 35(4) states there will be particular public interest in disclosing a policy’s factual background.)
The timing of the request is not relevant here. The question is whether the information relates to policy formulation or development, irrespective of when the request was made.
This means that the exemption catches a wide range of policy information, regardless of its sensitivity. In practice, the main focus is often likely to be on the public interest test.
If the exemption is engaged, you must go on to conduct a public interest test. You must consider how much public interest there is in maintaining this exemption in the circumstances of the particular case, and balance this against the public interest in disclosure.
This section briefly highlights the particular public interest considerations most relevant to maintaining section 35(1)(a). More information is available in the main ‘How do we apply the public interest test?’ section below.
Your public interest arguments under section 35(1)(a) should focus on protecting the policymaking process. This reflects the purpose of the exemption. Arguments about other issues (eg the personal impact on individuals, or the commercial interests of stakeholders) are not relevant.
There is no inherent or automatic public interest in withholding all information falling within this exemption: see ‘No inherent public interest’ under ‘How do we apply the public interest test?’.
The relevance and weight of the public interest arguments depends entirely on the content and sensitivity of the information in question and the effect of its release in all the circumstances of the case.
For the same reason, arguments that ‘routine’ disclosure of a particular type of information are not in the public interest are misconceived. Each case must be considered on its facts. Even if disclosure is ordered in one case, this does not mean similar information must be disclosed in future.
In Department for Works and Pensions v Information Commissioner (EA/2016/0304, 16 November 2017) the First Tier Tribunal considered a request for the names of attendees of the Childcare Implementation Taskforce.
The use of taskforces was a new initiative that was still bedding in. Taskforces aimed to bring together officials and external experts to drive forward key, cross departmental policies. Although there were permanent members of each taskforce, others would be invited to meetings as required. This meant that attendance by particular subject experts could indicate what issues were under discussion and that their seniority might be interpreted as signifying the importance given to an issue. It was also argued that the release of the names of attendees would allow journalists to pursue those with less experience of handling the press. Taken together, these factors could allow journalists to construct news stories about the topics being debated.
The DWP was concerned that if such a tactic became an established pattern that undermined the confidentiality of such taskforces, their use could be abandoned.
The First Tier Tribunal recognised that the general topics discussed by the Childcare Implementation Taskforce could be inferred from disclosing the names of attendees. But it did not accept arguments about the harm that would be caused by the routine disclosure of such information, stating that:
“To the extent that the DWP is relying on the cumulative effect of repeated journalistic intrusion creating what it refers to as an “established pattern”, then that goes beyond the disclosure of the Disputed Information. It does not follow from our decision in this appeal that names of attendees at other taskforce meetings will fall to be disclosed. Whether they do or not will depend on the facts of the individual case.”
Arguments must therefore focus on the effect of disclosing the information in question at the time of the request, rather than the effect of routine disclosure of that type of information.
The key public interest argument for this exemption usually relates to preserving a ‘safe space’ to debate live policy issues away from external interference and distraction. There may also be related arguments about preventing a ‘chilling effect’ on free and frank debate in future, and preserving the convention of collective responsibility. See the main ‘How do we apply the public interest test?’ section below for an overview of these arguments.
The focus of the public interest arguments should be on the policymaking process.
The exact timing of a request is very important. If the information reveals details of policy options and the policy process remains ongoing at the time of the request, safe space and chilling effect arguments may carry significant weight.
However, even if the policy process is still live, there may be significant landmarks after which the sensitivity of information starts to wane.
For example, once a high-level policy objective has been announced (eg in a White Paper or framework bill), any information about that broad objective becomes less sensitive. The safe space to debate that high-level decision in private is no longer required, even if related debate about the details of the policy remains sensitive.
In DWP v Information Commissioner (EA/2006/0040, 5 March 2007), the Information Tribunal considered a feasibility study on the introduction of ID cards. At the time of the request, a high-level decision had already been taken to introduce ID cards and a bill was already before Parliament. Even though detailed policy work was still at an early stage, information mainly about the high-level decision was less sensitive. The Information Tribunal ordered disclosure.
In some cases, the formulation or development of policy may not follow a linear path (ie where the policy becomes more and more settled as time goes on). There may be several distinct stages of active policy debate, with periods in between where policy is more settled. The importance of a safe space can wax and wane, depending on how fixed the policy is at the exact time in question.
In Department of Health v Information Commissioner, Healey & Cecil (EA/2011/0286 & 0287, 5 April 2012), the request related to the government proposals for NHS reform. The government published a White Paper setting out its proposals, conducted a consultation and presented a draft bill.
The First Tier Tribunal found that there were several distinct stages of policy formulation during this process. Safe space arguments would carry significant weight at some stages, but the need for a safe space was not constant throughout the process: “… there may be a need to, in effect, dip in and out of the safe space during this passage of time so government can continue to consider its options.”
The government’s high-level policy position had been settled when the White Paper was published. The need for a safe space diminished after this point. However, in this case, the publication of the bill provoked an unusual level of debate and prompted the government to again reconsider its options. So a safe space was once again important at that point.
Once a policy decision has been finalised and the policy process is complete, the sensitivity of information relating to that policy generally starts to wane, and public interest arguments for protecting the policy process become weaker. If the request is made after the policy process is complete, that process can no longer be harmed.
Tackling some policy issues may require a range of initiatives, implemented over a number of years. However, this does not mean that the policy thinking on each, individual initiative can still be considered live until the issue is finally resolved.
In Department of Health v Information Commissioner (EA/2018/0001 & 0002, 26 February 2019) the First Tier Tribunal considered a request for drafts of the government’s plan to tackle childhood obesity. A final version of the plan had already been published. However, some initiatives contained in the drafts were not included in the final version because they were still being worked on. The department argued that the fact that work on combating childhood obesity was ongoing meant that the drafts in their entirety should be regarded as about live policy issues. The department stressed that the plan was “just the start of a conversation” on how to tackle the problem.
The First Tier Tribunal rejected this argument, stating that:
“The fact that policy formulation or development was ongoing in relation to tackling obesity does not mean that policy formulation or development was live in relation to all measures that might be taken to tackle obesity. … Policy formulation or development is likely to remain ongoing in relation to childhood obesity for many years. This does not mean that policy development in relation to every measure or policy in that sphere will remain live for all those years.” (paragraph 120)
The First Tier Tribunal’s decision was upheld by the Upper Tribunal see Contents approach to applying the public interest test.
See Formulation v implementation above for more discussion on how to identify the point at which the policy process is complete.
There may be occasions where you require a safe space for a short time after a major policy has been finalised in order to properly present, explain and defend its key points without getting unduly distracted or side-tracked. You therefore need to explain exactly why a safe space is still needed at the time of the request on the facts of each case.
However, this safe space only lasts for a short time. Once the government has had a chance to properly set out its policy position and frame the debate, a safe space to present the policy is no longer needed. And on the other side of the public interest balance, there is likely to be significant public interest in allowing public scrutiny of the policy details (including risks and alternatives) while the policy is still in the public consciousness, and before it is implemented.
Even if the policy in question is finalised, your department might argue that disclosure would affect other policy debates. The weight of these arguments depends on the circumstances. You might still need a safe space for other ongoing policy debates if they are so similar or related that disclosure of the requested information is likely to interfere with those other debates. Chilling effect arguments may also carry more weight if you can point to a specific policy debate and explain why it is likely to be affected. However, generic chilling effect arguments about unspecified future policy debates are unlikely to be convincing, especially if the information in question is not particularly recent.
Public interest arguments generally focus on the policymaking process. But if you can make convincing arguments that disclosure, during the formulation or development stage, would directly harm the effectiveness of the policy itself, this also carries some weight. For example, if disclosure of identified risks would make those risks more likely to materialise, this may be a relevant factor. However, once the policymaking stage has been concluded, arguments that disclosure would undermine the policy’s implementation need to be made under whichever of the other exemptions is the most appropriate. For example, concern that the disclosure would undermine a policy aimed at promoting the economic development of a particular region could be considered under section 29 – the economy.
In general, there is often likely to be significant public interest in disclosure of policy information, as it is likely to promote government accountability, increase public understanding of the policy in question, and enable public debate and scrutiny of both the policy itself and how it was arrived at. See the section on public interest in disclosure below.
In particular, you should always consider whether the information contains factual information about the background to the policy. Section 35(4) specifically provides that there is particular public interest in disclosing background factual information:
In making any determination required by section 2(1)(b) or (2)(b) in relation to information which is exempt information by virtue of subsection (1)(a), regard shall be had to the particular public interest in the disclosure of factual information which has been used, or is intended to be used, to provide an informed background to decision-taking.
Section 35(4) specifically includes a reference to factual information which is intended to be used in the policymaking process. It clearly envisages that it may be appropriate to disclose factual information before that process has been completed. This recognises the value in the public having access to factual information in order to make informed contributions to the development or formulation of a policy before it is set in stone.
See the main ‘How do we apply the public interest test?’ section below for more general information on conducting the public interest test.
Section 35(1)(b) covers any information relating to Ministerial communications:
35.—(1) Information held by a government department or by the Welsh Government is exempt information if it relates to—
(b) Ministerial communications
As with the other limbs of section 35, this is qualified by the public interest test. You may withhold the information only if the public interest in maintaining the exemption outweighs the public interest in disclosure.
Once a policy decision has been made, the exemption cannot apply to any background statistical information, even if it is contained in a Ministerial communication. See the section below, ‘Can all the exemptions apply to statistical information?’ for more details.
The purpose of section 35(1)(b) is to protect the operation of government at Ministerial level. It prevents disclosures that would significantly undermine Ministerial unity and effectiveness or result in less robust, well-considered or effective Ministerial debates and decisions. However, it should not be used simply to protect Ministers from embarrassment, or from being held accountable for their decisions.
There is likely to be some overlap with section 35(1)(a). Many, but not all, Ministerial communications concern the formulation or development of government policy, and so engage both section 35(1)(a) and 35(1)(b). You may claim both exemptions for the same information. However, the public interest considerations may differ, and you should be careful to conduct a separate public interest test and reach a clear conclusion on each of the exemptions.
Section 35(5) defines Ministerial communications:
“Ministerial communications” means any communications—
(a) between Ministers of the Crown,
(b) between Northern Ireland Ministers, including Northern Ireland junior Ministers, or
(c) between members of the Welsh Government,
and includes, in particular, proceedings of the Cabinet or of any committee of the Cabinet, proceedings of the Executive Committee of the Northern Ireland Assembly, and proceedings of the Cabinet or any committee of the Cabinet of the Welsh Government.
In short, it refers to communications between Ministers. It does not include a communication from a Minister to a non-minister. However, communications do not have to be exclusively between Ministers: the exemption covers communications between two (or more) Ministers even if others are copied in.
Communications from a private secretary writing on behalf of their Minister to another Minister are covered: see Scotland Office (EA/2007/0070, 8 August 2008). The Commissioner considers that these are, in effect, communications directly from the Minister.
A plain reading of the definition indicates that communications between the three categories of Minister are not covered – ie communications between a UK Minister and a Northern Ireland Minister, or between a UK Minister and a member of the Welsh Government, or between a Northern Ireland Minister and a member of the Welsh Government. You may instead want to consider section 28 (prejudice to relations within the UK) for this information.
The concept of a communication is broad. It includes written communications such as letters, memos, emails and any other documents written to convey information between Ministers, and it also includes meetings and telephone conversations between Ministers. Section 35(5) specifically includes meetings of the Cabinet or Cabinet committees.
The exemption covers information that ‘relates to’ Ministerial communications. This is interpreted broadly: see the section on ‘How do we interpret ‘relates to’?’ above. This means that information does not have to ‘be’ a Ministerial communication itself; it is also covered if it recounts or refers to a Ministerial communication.
In EA/2013/0087 and EA/2016/0282, which both concerned requests for Ministerial diaries, the First Tier Tribunals were satisfied that diary entries recording when Cabinet meetings, and other meetings between Ministers were scheduled, related to those Ministerial communications.
EA/2013/0087 was subsequently appealed to the Upper Tribunal and then the Court of Appeal, neither of which disturbed the finding that section 35(1)(b) was engaged.
In EA/2013/0119 (remitted) it was accepted that a request for how many times the Reducing Regulation Committee, a Cabinet sub-committee, had met since being established, engaged the exemption.
In EA/2014/0223 the First Tier Tribunal accepted evidence that ‘Getting your bill through the House of Lords – A guide for bill teams by the Government Whips Office House of Lords’ engaged the exemption. The then Chief Whip (and Parliamentary Secretary to the Treasury) had tasked her team to produce the content of the book on her behalf, and it was intended as detailed guidance from her to Ministers and bill teams on guiding bills through the House of Lords.
However, this does not mean that every report or paper produced at a Minister’s request which subsequently finds its way into the hands of another Minister is deemed a Ministerial communication.
Another example of information relating to Ministerial communications are letters between civil servants that refer to a previous letter between Ministers.
Any documents attached to a letter or email will relate to that communication and so are covered. Of course, some attachments may be a communication in their own right, if they were specifically created to convey information between Ministers. However, we consider that even pre-existing documents that were originally created for another purpose and are later attached to a Ministerial communication relate to that communication for the purposes of this exemption. (But note that the public interest in withholding a pre-existing document under this exemption is likely to be weaker in most cases.)
Drafts of Ministerial communications will relate to the final communication and so are covered: DCMS v Information Commissioner (EA/2009/0038, 22 February 2010). Draft communications are still covered even if they are never actually sent: the unsent draft was still written to convey information, and also still relates to potential Ministerial communications. The Commissioner does not consider that there needs to be a completed Ministerial communication before the exemption can bite, as this undermines the purpose behind the exemption.
Minutes of meetings and notes of conversations will relate to those oral communications, and so are covered. This includes both formal minutes and more informal handwritten notes or personal aide-memoires. In particular, Cabinet minutes (or minutes of Cabinet committees) are covered as they relate to the communications taking place between Ministers at the Cabinet (or committee) meeting.
However, this does not mean that all information containing the views of Ministers automatically engages the exemption. For example, if a civil servant writes an email that sets out the Minister’s view, but is not writing on that Minister’s behalf to another Minister and has not referred to a Ministerial communication, this document will neither ‘be’ nor ‘relate to’ a Ministerial communication.
If the exemption is engaged, you must go on to conduct a public interest test. You must consider how much public interest there is in maintaining this exemption in the circumstances of the case, and balance this against the public interest in disclosure.
This section briefly highlights the public interest considerations most relevant to maintaining section 35(1)(b). More information is available in the main ‘How do we apply public interest test?’ section below.
Public interest arguments under section 35(1)(b) should focus on protecting Ministerial unity and effectiveness, and protecting Ministerial discussions and collective decision making processes. This reflects the purpose of the exemption. Arguments about other issues (eg protecting departmental debates with officials) are not relevant.
There is no inherent or automatic public interest in withholding all information falling within this exemption.
In Scotland Office v Information Commissioner (EA/2007/0070, 8 August 2008) the Information Tribunal considered Ministerial correspondence about Scottish territorial waters. At paragraph 85 it said:
“To the extent that the Appellant is suggesting that … there is some form of presumption against the disclosure of such information implicit in that exemption, or that the public interest in maintaining the exemption under section 35(1)(b) is inherently weighty, we must disagree.”
This point was made again in Cabinet Office v Information Commissioner  UKUT 0461 (AAC), 20 October 2014 as discussed under ‘How do we apply the public interest test?’ and in particular ‘No inherent public interest’.
The relevance and weight of the public interest arguments depends entirely on the content and sensitivity of the information in question and the effect of its release in the circumstances of the case.
In Department of Health v information Commissioner (EA/2016/0282, 19 July 2018) the First Tier Tribunal considered a request for the Secretary of State for Health’s Ministerial diary.
Naturally, the entries included Cabinet meetings and appointments with other Ministers, but the entries were very brief and so did not reveal the topics discussed at these meetings.
The First Tier Tribunal found that although a record showing that such meetings had taken place was capable of engaging the exemption, it considered the fact that a Cabinet meeting had taken place was usually public knowledge, not least because members of the Cabinet have to walk past the press photographers in Downing Street. There was therefore no public interest in maintaining the exemption. Regarding meetings of Cabinet Committees, these occurred on a more ad hoc basis which meant that the fact a meeting had occurred may be more significant. Nevertheless, the First Tier Tribunal found that the majority of entries recording such meetings could be released (paragraphs 69 and 70).
As regards other meetings between Ministers, the First Tier Tribunal again found there was less sensitivity in revealing the fact a meeting had taken place than there would be had the information revealed the contents of the communication (paragraph 54).
The key public interest argument for this exemption usually relates to preserving the convention of collective responsibility. There may also be related arguments about preserving a ‘safe space’ for Ministers to debate live issues away from external interference and distraction, and preventing a ‘chilling effect’ on free and frank Ministerial debate in future. See the main section on main ‘How do we apply public interest test?’ below for an overview of these arguments.
If collective responsibility arguments are relevant, they are likely to carry significant weight. However, not all information falling within this exemption automatically engages the convention of collective responsibility. You should therefore be careful to ensure that collective responsibility actually applies to the information in question: ie that it reveals the view of an individual Minister on a government decision, or views that contributed to the decision.
In Scotland Office v Information Commissioner (EA/2007/0070, 8 August 2008) the Information Tribunal made clear that: “not all information coming within the scope of section 35(1)(b) will bring the convention of collective Cabinet responsibility into play. Some communications may be completely anodyne or may deal with process rather than policy issues. Communications may also be purely for information purposes, such as when reports are circulated.”
Cabinet minutes engage collective responsibility. For Cabinet minutes in particular, the public interest in preserving collective responsibility is always substantial, and disclosure of Cabinet minutes has rarely been ordered.
ICO decision notice FS50185739 considered the disclosure of Cabinet minutes about the London 2012 Olympic bid, as well as informal notes taken at the Cabinet meeting. The Commissioner recognised significant public interest in disclosure, due to the level of public funds involved and the wide-ranging consequences for London and the UK of hosting the Olympics. However, this was outweighed by the very strong public interest in maintaining collective responsibility.
However, you should not rely on a blanket policy of non-disclosure, even for Cabinet minutes. It is still possible that a strong public interest in disclosure might override collective responsibility on the facts of a particular case.
There is always significant public interest in the disclosure of an impartial record of Cabinet business, even if other accounts are already available (eg from Ministerial statements, memoirs, or leaks). This public interest in disclosure is particularly strong for politically or historically significant events, or where published accounts are inconsistent.
Cabinet Office v Information Commissioner (EA/2010/0031, 13 September 2010) concerned minutes of a 1986 Cabinet meeting on the Westland affair, during which Michael Heseltine (the Defence Secretary) resigned. The First Tier Tribunal set out some general points of principle at paragraph 48:
“Cabinet minutes are always information of great sensitivity, which will usually outlive the particular administration, often by many years. The general interest in maintaining the exemption in respect of them is therefore always substantial. Disclosure within 30 years* will very rarely be ordered.”
On the other hand: “There is always significant public interest in reading the impartial record of what was transacted in Cabinet, no matter what other accounts of it have reached the public domain. Where the usual interest in maintaining confidentiality has been significantly weakened, that interest may justify disclosure. The public interest in disclosure will be strengthened where the Cabinet meeting had a particular political or historical significance”.
In this case, the strong public interest in protecting Cabinet minutes was decreased to some extent because significant time (20 years) had passed, most of the Ministers no longer had an active political career, and memoirs and Ministerial statements about the meeting had already been published. There was strong public interest in disclosure due to the significance of the meeting. The First Tier Tribunal ordered disclosure.
*At the time of this request, under section 62 of FOIA, documents were deemed to be historical records after 30 years. And under s63(1) historical records cannot be withheld under s35. The Act has subsequently been amended to the effect that documents become historical records after only 20 years. See ‘Historical records (the 20 year rule)’ for more details.
However, a decision’s political and social significance can also increase the potential for there to be a chilling effect on the candour of Ministerial debates. It may also mean that the public is already well informed about the issue if it has been thoroughly explored by political commentators, the media and academics.
In Cabinet Office v Information Commissioner and Stuart Parr, EA/2019/0082A, 11 May 2020 the First Tier Tribunal found that the public interest in withholding the minutes of Cabinet Meetings and those of a Cabinet sub-committee from 1997 about devolution, outweighed the public interest in disclosure.
In doing so it gave weight to the department’s argument that disclosing the information would risk reducing the candour with which Ministers participated in such meetings if they thought it likely that their views would become public in the future. This was because, being politicians in a competitive multi-party democracy, Ministers would have concerns about how their views would be interpreted by political rivals, or the media, seeking to advance their own agenda.
The First Tier Tribunal commented that:
“By holding all Ministers to a settled cabinet position, it encourages Ministers to strive to produce robust joint decisions, rather than seeking to exculpate themselves from any odium which may attach to it. While the ICO is right to say that the public is entitled to expect “Ministers will fulfil their responsibilities in the proper manner”, it is inevitable that individuals will respond to some extent to the circumstances in which they find themselves.” (paragraph 35)
The First Tier Tribunal also considered that the topic of devolution had been widely covered by the mass media both in 1997 and in the years since. It was such a significant policy that it had attracted considerable political, public and academic comment. The First Tier Tribunal was therefore satisfied that even though the minutes themselves had not been disclosed, there was a considerable amount of information available to the public on the pros and cons of the issues that were discussed. It therefore considered that disclosing the minutes would add little to the public’s understanding.
The contrasting decisions in the examples above demonstrate the need to consider each case on its own merits. The potential chilling effect on the candour of Ministerial debates is affected by many factors including whether the issue under discussion is still live or, regarding older information, whether it has the potential to influence current debates, whether the Ministers in question are still active in politics, and to what extent details from those meetings have been published in memoirs. And the chilling effect is itself only one of the factors to be considered under the public interest test.
See the main ‘How do we apply the public interest test?’ section below for more general information on conducting the public interest test.
Section 35(1)(c) covers information relating to Law Officers’ advice:
35.—(1) Information held by a government department or by the Welsh Government is exempt information if it relates to—
(c) the provision of advice by any of the Law Officers or any request for the provision of such advice
As with the other limbs of section 35, this is qualified by the public interest test. You can only withhold the information if the public interest in maintaining the exemption outweighs the public interest in disclosure.
The Law Officers are the principal legal advisers to the government. Their core function is to advise on legal matters, helping Ministers to act lawfully and in accordance with the rule of law. They must be consulted by Ministers or their officials before the government commits itself to critical decisions involving legal considerations. They also have a role in ensuring the lawfulness and constitutional propriety of legislation. See Chapter 6 of The Cabinet Manual (1st edition October 2011).
Section 35(1)(c) reflects the longstanding constitutional convention that government does not reveal whether Law Officers have or have not advised on a particular issue, or the content of any such advice. The purpose of this confidentiality is to protect fully informed decision making by allowing government to seek legal advice in private, without fear of any adverse inferences being drawn from the content of the advice or the fact that it was sought. It ensures that government is neither discouraged from seeking advice in appropriate cases, nor pressured to seek advice in inappropriate cases.
Law Officers’ advice also usually attracts legal professional privilege (LPP). This means it also usually engages the LPP exemption in section 42. See our guidance Legal professional privilege (section 42) for more information. You can claim both these exemptions for the same piece of advice.
In some cases you may want to neither confirm nor deny (NCND) that any information is held in order to conceal whether advice was given. For example, any other response to a request that specifically asks for the Attorney General’s advice on a particular issue would reveal whether such advice was provided. See the section on ‘How do we apply the neither confirm nor deny exemptions?’ below for more information.
Section 35(1)(c) encompasses the provision of advice by any of the Law Officers, and also any requests for that advice. The Law Officers are listed in section 35(5):
“the Law Officers” means the Attorney General, the Solicitor General, the Advocate General for Scotland, the Lord Advocate, the Solicitor General for Scotland, the Counsel General to the Welsh Government, and the Attorney General for Northern Ireland.
This does not include all government lawyers. For example, advice from the Government Legal Department, the Government Legal Profession, the Director of Public Prosecutions (DPP), the Crown Prosecution Service (CPS), or the Office of the Parliamentary Counsel is not covered.
Departments holding such advice, or advice given by external counsel, should instead consider the LPP exemption in section 42, or possibly another subsection of section 35. Section 35(1)(c) applies to such information only where departments need to conceal that the legal advice was not given by the Law Officers (as explained in the next hypothetical example).
The exemption covers information which ‘relates to’ the provision of Law Officers’ advice (or requests for advice). This is interpreted broadly: see the section on ‘How do we interpret ‘relates to’?’ above.
This means that information does not itself have to ‘be’ Law Officers’ advice or a request for Law Officers’ advice. Information is also covered if it recounts or refers to such advice or any request for it. For example, any discussions about how to react to Law Officers’ advice relates to that advice, and is covered.
In particular, any discussions about whether or not to seek Law Officers’ advice relates to the provision of advice and is covered – even if in the end no such advice was sought. We do not consider that there needs to be an actual request for advice in order for the exemption to bite. This approach is necessary to preserve the purpose of the convention, which includes confidentiality over whether Law Officers have or have not advised. This means you can claim section 35(1)(c) for information that reveals that advice was requested, or for information that reveals no advice was requested. You can confirm that the information is held but refuse its content under section 35(1)(c). The refusal notice can explain that the use of the exemption does not imply that advice was in fact requested.
If a request seeks a piece of legal advice that could, realistically, have been given by either Law Officers or other government lawyers, you should be able to confirm that some legal advice is held and use section 35(1)(c) to conceal whether or not it is Law Officers’ advice. This is because in these circumstances any information identifying who provided the advice will obviously reveal whether it was obtained from a Law Officer. This in itself is information relating the provision of advice by a Law Officer.
A request is received for any legal advice on X.
One piece of legal advice is held that could plausibly have been provided by either a Law Officer, or by some other legal adviser. Assume in this case it was not provided by a Law Officer
The department has no concerns over revealing that it did obtain legal advice. But it does want to conceal whether a Law Officer provided that advice.
As disclosing the advice would reveal that it was not provided by a Law Officer, the contents of the advice is itself information relating to Law Officers’ advice so it engages section 35(1)(c).
The department can issue a refusal notice stating that the information is being withheld under section 35(1)(c), making sure that it explains its rationale for using section 35(1)(c) so that its response is not taken to imply that the advice did originate from a Law Officer.
The use of section 35(1)(c) in the example above is only appropriate because the advice that had been requested could, realistically, have been provided by a Law Officer and the department wanted to conceal the adviser’s identity. In cases where the requested advice was not from a Law Officer, and the issue of concealing that fact does not arise, you could not rely on section 35(1)(c). Note, the use of section35(1)(c) to conceal the adviser’s identity is not an NCND response, but a reason to withhold the content of the advice.
A true NCND response is only required if you need to NCND whether any requested information (or a defined subset of it) is even held. If you do wish to NCND whether specified information is even held, you should cite section 35(3). See the ‘How do we apply the neither confirm nor deny exemptions?’ section below for more information.
If the exemption is engaged, you must go on to conduct a public interest test. You must consider how much public interest there is in maintaining this exemption in the circumstances of the case, and balance this against the public interest in disclosure.
This section briefly highlights the public interest considerations most relevant to maintaining section 35(1)(c). More information is available in the main section on ‘How do we apply the public interest test?’ section below.
Public interest arguments under section 35(1)(c) should focus on harm to government decision making processes. This reflects the purpose of the exemption.
The key public interest argument for this exemption relates to protecting the Law Officers’ convention of confidentiality.
In HM Treasury v Information Commissioner & Evan Owen  EWHC 1811 (Admin), the High Court considered the Treasury’s refusal to confirm or deny whether it held legal advice which confirmed that draft legislation was compatible with the Human Rights Act 1998. The judge concluded:
“Parliament intended real weight should continue to be afforded to this aspect of the Law Officers’ Convention … the general considerations of good government underlining the history and nature of the convention were capable of affording weight to the interest in maintaining the exemption even in the absence of evidence of particular damage.”
However, this does not mean there is an inherent public interest in maintaining the exemption. It simply means that the starting point should be to establish whether and how the Law Officer’s convention is engaged for the information in question. Where it is engaged, the convention is likely to carry significant weight. The strong public interest in protecting Law Officers’ advice may still be overridden in some cases if there are strong factors in favour of disclosure.
In the case of HM Treasury v Information Commissioner & Evan Owen  EWHC 1811 (Admin), Judge Blake stated:
“Nothing in this judgment is intended to undermine the important principle of transparency and accountability that the FOIA has brought to government in many ways. … I can certainly contemplate, for example, that the context for the commencement of hostilities in Iraq was of such public importance that… the strength of the public interest in disclosure of the advice as to the legality of the war might well have out-weighed the exemption”. (Paragraph 64)
Where the requested information attracts LPP, the public interest may also take account the broader principle of LPP and its fundamental importance to the legal system as a whole. This is in line with the decisions in two Upper Tribunal cases.
In Savic v Information Commissioner, the Attorney General’s Office and the Cabinet Office  UKUT AACR 26, 30 November 2016, the Upper Tribunal considered requests that captured the Attorney General’s advice on the legality of the UK’s military involvement in Kosovo in 1999. It was in the public domain that such advice had been provided. The information was withheld under section 35(1)(c) and section 42, the exemption for legal professional privilege.
Having found both exemptions were engaged, the Upper Tribunal went onto consider the public interest test. It began by stating that:
“There is an obvious link between the public interests that found section 35(1)(c) (Law Officers’ advice) and section 42 (LPP). There are some additional factors that apply to Law Officers’ advice that we address separately.” (paragraph 27)
It then went on to consider the public interest in maintaining section 42, including the relevance of the advice to existing legal proceedings, before turning its attention to the additional factors that were only relevant to maintaining section 35(1)(c). The Upper Tribunal began by stating that the public interest in protecting those parts of the Law Officers’ Convention on the seeking of advice and the contents of such advice:
“… clearly overlaps with the LPP exemption with the result that the general factors in favour of maintaining the confidentiality of information seeking and giving legal advice apply to it as they apply more generally.
“But the role of the Law Officers (the providers of the advice) and the importance of the Government acting in accordance with the Rule of Law are additional factors to be taken into account.” (paragraphs 36 and 37)
This approach was then adopted by the Upper Tribunal in Corderoy and Ahmed v Information Commissioner, Attorney General and Cabinet Office,  UKUT 495 (AAC), 14 December 2017. The case considered requests for the Attorney General’s advice on the legality of a drone attack that targeted two UK nationals operating in Syria. Again, it was public knowledge that the Attorney General had provided advice. The Upper Tribunal found both exemptions were engaged. In paragraphs 67–77 the Upper Tribunal considered the application of the public interest to both exemptions jointly, focusing on the value of preserving LPP, before concluding that both exemptions could be relied on.
It is clear from these cases that the public interest in maintaining section 35(1)(c) incorporates both the general public interest in protecting LPP as well as the additional factors relevant only to the value of preserving the Law Officers’ convention. For more detailed information on the public interest in preserving LPP, see our guidance on Legal professional privilege (section 42).
If the relevant issue is still being actively considered by government, there may also be some public interest in preserving a safe space to seek and consider any legal advice away from external interference and distraction. As with other safe space arguments, this is only likely to carry additional weight while the issue is still live.
See the main section on ‘How do we apply the public interest test?’ section below for more general information on safe space and other public interest arguments, and on conducting the public interest test.
Section 35(1)(d) covers information relating to the operation of Ministerial private offices:
(d) the operation of any Ministerial private office.
As with the other limbs of section 35, this is qualified by the public interest test. You may withhold the information only if the public interest in maintaining the exemption outweighs the public interest in disclosure.
All government Ministers have their own private offices comprising a small team of civil servants. They form the bridge between the Minister and their department. The private office’s role is to regulate and streamline the Ministerial workload and allow the Minister to concentrate on attending meetings, reading documents, weighing facts and advice, and making policy decisions.
This exemption is infrequently used, so its principles are not as well established as for the other limbs of section 35. However, the Commissioner considers that the purpose of section 35(1)(d) is to ensure that Ministerial business is managed effectively and efficiently.
Section 35(5) defines ‘Ministerial private office’:
“Ministerial private office” means any part of a government department which provides personal administrative support to a Minister of the Crown, to a Northern Ireland Minister or a Northern Ireland junior Minister, or any part of the administration of the Welsh Government providing personal administrative support to the members of the Welsh Government.
The exemption covers information that ‘relates to’ the operation of the private office. This is generally interpreted broadly: see the section on ‘How do we interpret ‘relates to’?’ above. However, this does not mean that all information with any link to a Ministerial private office is covered. Section 35(1)(d) refers specifically to the operation of a Ministerial private office, which itself is defined as providing administrative support. In other words, it covers information relating to the administrative support provided to a Minister.
The upshot is that this exemption is interpreted fairly narrowly. In effect, it is limited to information about routine administrative and management processes, the allocation of responsibilities, internal decisions about Ministerial priorities and similar issues.
The exemption is likely to cover information such as routine emails, circulation lists, procedures for handling Ministerial papers or prioritising issues, travel expenses, information about staffing, the Minister’s diary, and any purely internal documents or discussions that have not been circulated outside the private office.
ICO decision notice FS50267857 concerned handwritten notes of a meeting taken by the Minister’s private secretary. The note was taken for private office use, and was not circulated or placed on file. The Commissioner accepted that the task of taking a handwritten note was clearly administrative, being the first step towards the production of the official note of the meeting. The handwritten note therefore related to the operation of the private office and section 35(1)(d) was engaged.
In a case concerning a request for the Ministerial diary of the then Secretary of State for Health, Andrew Lansley, the Commissioner accepted that the diary was information relating to the operation of his Ministerial private office. Nevertheless, certain information should be disclosed after consideration of the public interest test.
The First Tier Tribunal considered the department’s appeal of that decision in Department of Health v IC EA/2013/0087 17 March 2014. It found at paragraphs 29 and 30 that:
“A merely incidental connection between the information and a matter specified in a sub-paragraph of s35(1) would not bring the exemption into play; it is the content of the information that must relate to the matter specified in the sub-paragraph. It follows, in our view, that the mere fact that information is held in or collated by a Minister’s private office does not of itself lead to the conclusion that the information ‘relates to’ the operation of the Minister’s private office within the meaning of s35(1)(d).
“However, where one of the operational responsibilities of the Minister’s private office is to maintain a diary and manage the Minister’s engagements, the information contained in the diary will tend to fall within the s35(1)(d) exemption.”
Although the diary engaged the exemption, the First Tier Tribunal found much of its contents could be disclosed in the public interest.
The examples establish that the exemption is engaged not only where the actual content of the information discusses the operation of the private office, but also where the private office holds the information to fulfil its role of providing administrative support to a Minister.
However, the exemption does not automatically cover the content of a document just because it originated in or passed through the Ministerial private office. In particular, it does not automatically cover the content of all Ministerial papers, or details of Ministerial meetings with third parties.
In ICO decision notice FS50859972 the Commissioner considered a request for all records relating a Minister’s response to an MP’s letter. The department argued that the information was exempt under section 35(1)(d) as the drafting of letters on a Minister’s behalf, and their redrafting, were purely administrative tasks undertaken by the private office to support the Minister.
The Commissioner accepted that the majority of the information engaged the exemption. However, the Commissioner found that the original letter from the MP and the final letter from the Minister did not; nor did any information on the substantive issue raised by the MP, which was held to inform the Minister’s response.
The exemption is not intended to cover information about a Minister’s private life or private interests (ie information unrelated to their government role). Arguments about maintaining the Minister’s privacy should instead be considered under the personal data exemption (section 40).
Department of Health v IC EA/2016/0282, 19 July 2018 was another case about Ministerial diaries, this time that of the then Secretary of State, Jeremy Hunt. The First Tier Tribunal found that details of engagements with his family and personal friends could be withheld under section 40 as could information that revealed his travel arrangements, whose disclosure had the potential to compromise his safety.
If the exemption is engaged, you must go on to conduct a public interest test. You must consider how much public interest there is in maintaining this exemption in the circumstances of the case, and balance this against the public interest in disclosure.
This section briefly highlights the public interest considerations most relevant to maintaining section 35(1)(d). More information is available in the main section on ‘How do we apply the public interest test?’ below.
Public interest arguments under section 35(1)(d) should focus on harm to the private office’s effectiveness. This reflects the purpose of the exemption. Arguments about other issues are not relevant and should be made under a more suitable exemption. For example, arguments about harm to policy debates should be made under section 35(1)(a).
There is no inherent or automatic public interest in withholding all information falling within this exemption. The relevance and weight of public interest arguments depends entirely on the content and sensitivity of the information in question and the effect of its release in all the circumstances of the case.
The key public interest argument for this exemption is likely to relate to preserving the private office’s ability to focus on managing the Minister’s work efficiently without external interference and distraction.
In the case referred to earlier concerning a request for the Ministerial diary of the then Secretary of Health, Jeremy Hunt, Department of Health v IC EA/2016/0282 (19 July 2018), the department presented arguments that disclosing the diary entries would interfere with officials’ ability to manage the Minister’s time effectively.
Among its concerns were that the diary did not present a complete picture of how the Minister spent his time and that unfair comparisons could made between the diaries of different Ministers. This, it was argued, could lead to officials having to consider presentational issues when organising the diary rather than purely time-management issues and so distract the private office from one of its core functions.
Although the First Tier Tribunal accepted that such an impact on the private office’s work was a relevant consideration under the public interest test, ultimately it found that any impact had been overstated. In doing so it took account of the robustness of Ministers and considered that a ‘general rider’ explaining the limitations of the information would overcome some of the problems anticipated.
There may also be arguments about the protection of officials. Public accountability for decisions should remain with Ministers and should not fall on civil servants providing administrative support.
Security concerns may also be of some relevance where they affect the private office’s work. For example, disclosure of travel arrangements might undermine the security of the Minister or officials and so make future travel arrangements, diary management or working patterns more difficult to manage.
The timing of the request and the age of the information is likely to be an important factor. Purely historical information is likely to be less harmful than information that reveals something about ongoing processes or future events.
Section 35(2) states that, once a policy decision has been taken, any statistical information that was used to provide an informed background to that decision does not engage section 35(1)(a) or 35(1)(b).
Statistical information includes statistics (ie factual information presented as figures), and any further mathematical or scientific analysis of those figures. It is not simply a view or opinion that happens to be expressed numerically.
In DWP v Information Commissioner (EA/2006/0040, 5 March 2007), the Information Tribunal considered a study on the impact of the introduction of ID cards on the DWP. It consisted of working assumptions and estimates of factors such as how many people would take up ID cards and how they would be used, and used these assumptions to predict the effect on DWP business. Much of this information was expressed numerically. However, the figures were derived from the judgements and opinions of officials, rather than being generated by mathematical analysis of underlying factual information. The information was not therefore statistical information.
Information does not have to be accurate to be statistical. The essence of statistical information is not that it is highly accurate, but that its margins of error can be understood so that it can be used with a high degree of confidence.
In the DWP case, the Information Tribunal adopted the following definition (which originated from the Office of National Statistics):
“Statistical information used to provide an informed background to the government policy and decision… will usually be founded upon the outcomes of mathematical operations performed on a sample of observations or some other factual information. The scientific study of facts and other observations allows descriptive approximations, estimates, summaries, projections, descriptions of relationships between observations, or outcomes of mathematical models, etc to be derived.
A distinguishing feature of statistical information is that it is founded to at least some degree on accepted scientific or mathematical principles. Statistical information is therefore distinguished by being:
(i) derived from some recorded or repeatable methodology, and
(ii) qualified by some explicit or implied measures of quality, integrity and relevance.
This should not imply that the term ‘statistical information’ only applies to where standards of methodology and relevant measures are particularly high. What distinguishes statistical information is that the limitations of methodology, and the relevant measures of quality etc, allow for a rational assessment of the validity of the information used as an informed background to the formulation and development of government policy.”
The statistical information must have been used to provide an informed background to the policy decision. However, it does not need to have been specifically created for the policy process. As long as it was actually used or referred to by those assessing options, providing advice or taking the decision, then that statistical information cannot be withheld under section 35(1)(a) or section 35(1)(b).
If the statistical information was not referred to at any point in the policy process, it is unlikely that it relates to the formulation or development of government policy or Ministerial communications in order to engage an exemption. Nonetheless, it is possible that some statistics might still be exempt if they were compiled as part of the policy process but then not actually used – eg if they were compiled but then disregarded for some reason.
Statistical information can still be exempt before a policy decision is taken, but cannot be exempt afterwards. It is therefore important to decide whether any relevant policy decision was taken by the time of the request. However, it is not always easy to identify exactly when a policy decision is made. This is a question of fact, and depends on the nature of the policy process in question. See the section above on Formulation v implementation for more discussion on this point.
Section 35(3) allows departments to neither confirm nor deny (NCND) whether they hold information that engages section 35:
35.—(3) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1).
To engage section 35(3), you should be able to explain why the requested information engages one (or more) of the main exemptions. It does not matter whether you actually hold the information requested, since section 35(3) refers to information that is exempt, or would be exempt if it were held.
The NCND exemption is qualified by the public interest test. You can only NCND if the public interest in concealing whether information is held outweighs the public interest in knowing whether information is held.
In other words, you cannot automatically NCND whether you hold information that falls within section 35. If you wish to NCND, you must be able to explain in the public interest test exactly what a hypothetical confirmation or a hypothetical denial would reveal in the context of the particular request, and why at least one of these responses would be harmful to good government.
What a hypothetical confirmation or hypothetical denial would reveal depends on the phrasing of the request. Whether information is actually held is not relevant.
These public interest arguments must focus on the specific good government interests protected by the subsection(s) that would be engaged. Relevant sections of this guidance above highlight the particular interests and public interest factors most relevant to each exemption:
- Section 35(1)(a): public interest factors
- Section 35(1)(b): public interest factors
- Section 35(1)(c): public interest factors
- Section 35(1)(d): public interest factors
You must then balance these factors against the specific public interest in knowing whether that information is held. Even if there is significant public interest in using NCND, you still need to confirm or deny if there is equal or stronger public interest in knowing whether the information is held by the department.
ICO decision notice FS50208932 considered whether the Ministry of Justice could NCND whether it held information about a review of a particular aspect of the way personal injury damages are calculated.
The Commissioner accepted that section 35(3) was engaged, as this type of information would relate to the development of government policy. The Commissioner also accepted that confirmation or denial may well reveal whether the policy had been reviewed. However, the department did not clearly explain how revealing whether a review had taken place would cause harm to policymaking. In particular, the Commissioner did not believe that this would pose any threat to a safe space to consider different options. On the other hand, there was specific public interest in knowing whether the policy had been reviewed as the Lord Chancellor had indicated it would be, added to the general public interest in government transparency. The Ministry of Justice was ordered to confirm or deny whether information was held.
See the section on ‘How do we apply the public interest test?’ below for more general information on public interest arguments and conducting the public interest test.
NCND often arises in the context of requests for Law Officers’ advice falling under section 35(1)(c). This is because of the constitutional convention that government does not reveal whether Law Officers have or have not advised on a particular issue. See the section on ‘How do we apply the exemption relating to Law Officers’ advice?’ above for more information.
This means that a department often wants to NCND whether it holds information where the request specifically targets Law Officers’ advice. In such cases there is strong public interest in maintaining section 35(3) and preventing the Law Officers’ convention being undermined.
An NCND response is only required if you don’t want to reveal whether any information is even held. This is most likely to be regarding specific requests for Law Officers’ advice.
Decision notice IC-55601-C6W8 concerned a request, made in May 2020, directly to the Attorney General’s Office (AGO). It sought any advice provided by the Attorney General or the Solicitor General to the Prime Minister regarding the alleged breach of coronavirus restrictions by the Prime Minister’s special adviser at the time, Dominic Cummings.
The AGO refused to confirm or deny whether it held the requested information, relying on section 35(3) by virtue of section 35(1)(c). The Commissioner found that the AGO was entitled to do so.
A request specifically asks for any legal advice the department obtained from the Attorney General about the government’s introduction of emergency legislation to combat the spread of coronavirus. The department may choose to refuse to confirm or deny whether the information is held under s35(3), subject to applying the public interest test.
However, it may also be appropriate to NCND in other circumstances.
For example, you may also NCND whether a distinct subset of the requested information is held. If a request covers all types of advice on a topic, you may NCND whether Law Officer’s advice is held, but you should still confirm whether any other legal advice (or other relevant information) is held.
A request is received for all legal advice obtained about the government’s introduction of a piece of emergency legislation. It is obvious that some legal advice would be held and the department does hold a number of pieces of legal advice, from various sources.
The department can confirm that it holds legal advice from legal advisers other than a Law Officer, and then consider whether that advice should be disclosed. For the sake of argument, assume the department goes on to withhold that information under section 42(1).
The department could choose to refuse to confirm or deny whether, in addition to the information being withheld under section 42, it also holds any information relating to advice from a Law Officer under section 35(3), regardless of whether any such information is held.
However, you cannot use NCND provisions to disguise the content of information. This means that if you confirm that some legal advice is held, you cannot then use section 35(3) to conceal whether or not that advice is from a Law Officer. Instead, you should use section 35(1)(c) to withhold its content in order to conceal whether or not it is Law Officers’ advice, as explained in the section on engaging section 35(1)(c) above.
A request is received for legal advice obtained on a different piece of the emergency legislation. But this time the request focuses on a specific provision. There is only one piece of advice held on that particular issue. It may, or may not, have been provided by a Law Officer.
The public would expect the government’s policy to have been informed by legal advice and there is no sensitivity about revealing that advice was obtained. But the department does not wish to reveal whether that legal advice was provided by a Law Officer.
The department cannot confirm legal advice is held, withhold it under, say, section 42 – legal professional privilege, and at the same time use section 35(3) to refuse to confirm or deny whether that same advice originated from a Law Officer. This is because section 35(3) provides an exception from the duty to confirm or deny whether the requested information is held.
Instead, it should confirm that it holds legal advice, but then go on to withhold the information under section 35(1)(c). This provision would apply because if the information were released, it would reveal whether the advice had been provided by a Law Officer. Therefore it would relate to information provided by a Law Officer as explained earlier in How is the exemption engaged?.
The department could, of course, also cite section 42 as grounds for withholding the same information.
The refusal notice would need to explain the rationale for applying section 35(1)(c) to make clear that its use could not be taken as an indication that the advice had come from a Law Officer.
There is strong public interest in using NCND to conceal whether Law Officers’ advice was given because the Law Officers’ convention is fundamental to good government.
In HM Treasury v Information Commissioner & Evan Owen  EWHC 1811 (Admin), the Treasury had refused to confirm or deny whether it held legal opinions supporting the government’s declaration that draft legislation was compatible with the Human Rights Act under s35(3) alongside 35(1)(c) . The judge considered the public interest in maintaining s35(3):
“The arrangements available to government as to how to obtain advice whether in-house from its departmental lawyers, or seeking external advice from independent counsel through the Treasury Solicitors, or using the limited resources available of approaching Law Officers themselves is very much a choice the government should be able to make on the appropriate factors in each case, and undeterred by factors that might lead them to seek advice from the apex [ie from the Law Officers] unnecessarily, or to avoid it when it should have been obtained.” (paragraph 60)
However, you should always consider the circumstances of the case. In some cases it might be less sensitive to confirm that advice was given, as it does not significantly undermine the convention. For example, if it is standard procedure to obtain Law Officers’ advice in particular circumstances, or if it is already public knowledge that the advice was given.
Further, the strong public interest in protecting the Law Officers’ convention is just one factor that may still be overridden in some cases by equally strong factors in favour of confirming or denying. For example, there may be significant public interest in knowing that the government sought appropriate legal advice on an issue of national or international importance.
A wide range of information will be caught by one or more of the section 35 exemptions. In practice the application of these exemptions usually focusses on the public interest test.
This section discusses the public interest test in the context of section 35. See also our guidance on the public interest test for more general advice.
Public interest arguments under section 35 must focus on the specific good government interests protected by the subsection being claimed. Relevant sections of this guidance above highlight the particular interests and public interest factors most relevant to each exemption:
- Section 35(1)(a): public interest factors
- Section 35(1)(b): public interest factors
- Section 35(1)(c): public interest factors
- Section 35(1)(d): public interest factors
If the same information engages more than one of these exemptions, you should conduct a separate public interest test for each one. This is because the weight and focus of public interest arguments may differ depending on the exemption being considered. (Although if exactly the same argument is relevant under more than one exemption, there is no need to repeat the details in full each time.)
These factors must then be balanced against the public interest in disclosure. Even if there is significant public interest in the exemption, you have to disclose the information if there is equal or weightier public interest in disclosure. You should bear in mind that, as these exemptions are qualified, it was always intended that in some cases information should be disclosed in the public interest. There can be no guarantee that information subject to a qualified exemption will remain confidential.
There is no inherent or automatic public interest in withholding information just because it falls within one of these class-based exemptions.
In OGC v Information Commissioner & the Attorney General  EWHC 737 (Admin) the High Court considered an appeal against the disclosure of gateway reviews of the government’s identity card programme. Burnton J opted to address some “issues of general importance” regarding the public interest test under section 35. He said (at para 79):
“I do not think that section 35 creates a presumption of a public interest in non-disclosure… section 35 is in very wide terms, and interpreted literally it covers information that cannot possibly be confidential. For example, a report of the Law Commission being considered by the Government with a view to deciding whether to implement its proposals would be or include information relating to ‘the formulation or development of government policy’, yet there could be no public interest in its non-disclosure. It would therefore be unreasonable to attribute to Parliament an intention to create a presumption of a public interest against disclosure.”
The same issue was also considered by the Upper Tribunal in a later case.
In Cabinet Office v Information Commissioner 2014 [UKUT] 0461 (AAC), 20 October 2014, the Upper Tribunal considered the application of sections 35(1)(a) and (b) to a request for how many times a particular Cabinet sub-committee had met. Turnbull J reviewed the relevant case law and dismissed the Cabinet Office’s argument that there was an inherent public interest in maintaining section 35(1)(b) (see paragraphs 54 to 57 in particular). He then addressed the issue of whether there is an inherent public interest in maintaining any of the exemptions provided by section 35(1), stating at paragraph 67 that the correct approach was:
“… (i) to consider to what extent the public interest factors potentially underlying the relevant exemption are in play in the particular case and then (ii) to consider what weight attaches to those factors, on the particular facts.”
The Commissioner interprets this to mean that if, for example, information is exempt under section 35(1)(b) because it relates to Ministerial communications, one of the possible public interest factors in favour of maintaining the exemption could be the need to preserve the convention of collective responsibility. If this was a potential concern, the first step under the public interest test would be to determine whether disclosure would actually undermine the convention in the circumstances of the case. If it would, the second step is to consider what weight should be attached to protecting the convention in such circumstances.
You should not apply a blanket policy of non-disclosure for particular types or subsets of information. Your arguments should always relate to the content and sensitivity of the information in question and the effect of its release in all the circumstances of the case.
Therefore, although when engaging the exemptions, you may not need to go through the information line by line to determine whether it falls within a particular class, a far more thorough approach is likely to be required when considering the public interest test.
You also need to follow this more detailed approach when preparing any document for disclosure as established by the Upper Tribunal in the following case.
In Department of Health and Social Care v Information Commissioner GIA/1552 and 1553/2019 29 October 2020 the Upper Tribunal considered a request for draft versions of the government’s plan to tackle childhood obesity. The drafts contained some information on initiatives that were not included in the final published version of the plan because the policy work on them was ongoing. The First Tier Tribunal had found that the public interest favoured withholding this information. However, regarding those initiatives where the policy work had been concluded and which were included in the published version, the First Tier Tribunal found the public interest favoured disclosure.
When appealing this decision the department argued that, following the decision in Foreign and Commonwealth Office v Information Commissioner and Plowden  UKUT 0275 (AAC), it was necessary consider the context in which the information sat and not to regard it in isolation when applying the public interest test. As a result, the department argued that, where drafts contained sensitive information about initiatives that had not been included in the published version, the draft document should be withheld in its entirety.
The Upper Tribunal dismissed the argument, finding, at paragraph 41, that the decision in Plowden did not mean:
“that disclosure of a document must be all or nothing.”
The Upper Tribunal did, however, add that an “over zealous microscopic” analysis could result in the disclosure of meaningless or confusing information. Therefore, there will always be a need to exercise judgement.
A contents based approach also means that arguments that ‘routine’ disclosure are contrary to the public interest are misconceived. You must consider each case on its facts. Even if disclosure is ordered in one case, this does not mean that disclosure will become ‘routine’. Arguments must relate to the effect of disclosing the information in question, rather than the effect of routine disclosure of that type of information.
Public interest arguments under the section 35 exemptions often relate to preserving a ‘safe space’ to debate issues away from external scrutiny, preventing a ‘chilling effect’ on free and frank views in future, and preserving the principle of collective responsibility.
The weight of these factors varies from case to case, depending on the timing of the request and the context of the information in question: see DfES v Information Commissioner and the Evening Standard (EA/2006/0006, 19 February 2007).
An overview of these common arguments is set out below.
The Commissioner accepts that the government needs a safe space to develop ideas, debate live issues, and reach decisions away from external interference and distraction. This carries significant weight in some cases.
As the Information Tribunal explained in DfES v Information Commissioner & the Evening Standard (EA/2006/0006, 19 February 2007), when considering the value of safe space in which to develop policy, “Ministers and officials are entitled to time and space, … to hammer out policy by exploring safe and radical options alike, without the threat of lurid headlines depicting that which has been merely broached as agreed policy.” (paragraph 75(iv))
The need for a safe space is strongest when the issue is still live. Once the government has made a decision, a safe space for deliberation is no longer needed and this argument will carry little weight. The timing of the request is therefore an important factor. This was confirmed by the Information Tribunal in DBERR v Information Commissioner and Friends of the Earth (EA/2007/0072, 29 April 2008):
“This public interest is strongest at the early stages of policy formulation and development. The weight of this interest will diminish over time as policy becomes more certain and a decision as to policy is made public.” (paragraph 114)
But it does not follow that where an issue is still under active consideration the public interest always favours maintaining the exemption regardless of the sensitivity of the information.
In Department of Health v Information Commissioner (EA/2018/0001 and 0002, 22 February 2019) the First Tier Tribunal considered the application of section 35(1)(a) to a request for draft versions of the government’s plan to tackle childhood obesity that had recently been published. Some of the information in those drafts related to policy initiatives that were still being worked on. The department argued:
“The case law is clear that it was highly unlikely that the public interest will favour disclosure where policy development is ongoing. Although it is not an absolute exemption, the starting point should be that disclosure is highly unlikely unless a good reason can be given on the facts of the case that outweighs the general statutory position.” (paragraph 88)
The FTT considered that the department’s argument came close to suggesting that where policy formulation or development was still live at the relevant time, the public interest balance must always come down in favour of non-disclosure in the absence of something akin to wrongdoing within government. It rejected the argument. (paragraphs 113 to 117)
Since the exemption can potentially capture a wide range of information, to accept the department’s argument could result in a lot of non-sensitive information being withheld without any good cause.
At the subsequent appeal to the Upper Tribunal, the Upper Tribunal upheld the FTT’s rejection of that argument. (Department of Health and Social Care v Information Commissioner, GIA/1552 and 1553/2019, 29 October 2020, paragraph 59)
The government may also need a safe space after a decision is made to properly promote, explain and defend its key points. However, this safe space only lasts a short time, and once an initial announcement has been made there is also likely to be increasing public interest in scrutinising and debating the details of the decision.
Traditionally, safe space arguments relate to internal discussions but modern government sometimes invites external organisations/individuals to participate in their decision making process (eg consultants, lobbyists, interest groups, academics). Safe space arguments can still apply where external contributors have been involved, as long as those discussions have not been opened up for general external comment. However, this argument generally carries less weight than if the process involved only internal contributors.
In The Department for Business, Enterprise and Regulatory Reform (DBERR) v the Information Commissioner and Friends of the Earth (EA/2007/0072, 29 April 2008) the Information Tribunal recognised there was value in government being able to test ideas with informed third parties and knowing what the reaction of a particular group of stakeholders might be regarding a specific policy. The Information Tribunal stated:
“…we do accept that there is a strong public interest in the value of government being able to test ideas with informed third parties out of the public eye and knowing what the reaction of particular groups of stakeholders might be if particular policy lines/negotiating positions were to be taken.” (paragraph 119).
Departments often argue that disclosure of discussions inhibits free and frank discussions in the future, and that the loss of frankness and candour damages the quality of advice and lead to poorer decision making. This is known as the chilling effect.
Tribunals are generally sceptical of such arguments. In Davies v IC and the Cabinet Office (GIA)  UKUT 185 (AAC), 11 June 2019 the Upper Tribunal stated at paragraph 25 that:
“There is a substantial body of case law which establishes that assertions of a “chilling effect” on provision of advice, exchange of views or effective conduct of affairs are to be treated with some caution.”
The Davies decision concerned information withheld under section 36 – prejudice to the conduct of public affairs, but the case law that the Upper Tribunal considered included that relating to the application of section 35. The Commissioner is therefore satisfied that the reasoning applies equally to the public interest test under section 35.
There are two main reasons for such caution. Firstly, since FOI was introduced in 2005, public officials now recognise it is not possible to guarantee the confidentiality of their advice or deliberations. Secondly, civil servants and other public officials are expected to be impartial and robust when giving advice, and not easily deterred from expressing their views by the possibility of future disclosure. It is also possible that the potential for future disclosure could actually lead to better quality advice.
Where lobbyists have been involved in the discussions, they are even less likely to be inhibited in their contributions by the possibility of disclosure as they are trying to further their own agenda by influencing departments. You should consider therefore how likely it is that lobbyists will actually be deterred from contributing. This is supported by the Information Tribunal in DBERR in which it agreed with the ICO’s argument that:
“…one could expect that a lobbyist, whose job it is to put views forward to government, would continue to do so robustly notwithstanding fear of disclosure.” (paragraph 123).
Nonetheless, chilling effect arguments cannot be dismissed out of hand and are likely to carry some weight in many section 35 cases: see Friends of the Earth v Information Commissioner & Export Credits Guarantee Department  EWHC 638 at paragraph 38.
You must make arguments based on the circumstances of each case, including the timing of the request, whether the policy is still live, and the actual content and sensitivity of the information in question.
Chilling effect arguments operate at various levels. If the policy in question is still live, arguments about a chilling effect on those ongoing policy discussions are likely to carry significant weight. Arguments about the effect on closely related live policies may also carry weight. However, once the policy in question is finalised, the arguments become more and more speculative as time passes. It will be difficult to make convincing arguments about a generalised chilling effect on all future discussions. For example, see DfES v Information Commissioner & the Evening Standard (EA/2006/0006, 19 February 2007), and Scotland Office v Information Commissioner (EA/2007/0128, 5 August 2008).
If the Commissioner receives a complaint, it is therefore important that when presenting chilling effect arguments, you explain whether the policy process in question had been completed by the time of the request and, if relevant, how closely it relates to other future policy work (also tell us when that policy work may take place). The onus is on you to make your case. Without such explanations, the Commissioner will not be able to give significant weight to your arguments.
Arguments that disclosure will lead to departments keeping less detailed records of discussions in future, and that this will harm internal deliberation in future, carries little if any weight. Departments are expected to keep adequate records for their own purposes. If the department endorses or permits a loss of detail in its records, it is difficult to argue that the loss of detail is harmful.
This follows the approach of the Information Tribunal in Guardian Newspapers Ltd and Heather Brooke v Information Commissioner and BBC (EA/2006/0011 & 0013, 8 January 2007) and DfES v Information Commissioner and the Evening Standard (EA/2006/0006, 19 February 2007).
However, some record keeping arguments may actually be chilling effect arguments made in a slightly different way (ie that disclosure results in less detailed advice, which is then likely to result in less detailed records of that advice). These chilling effect arguments may carry some weight, as discussed above.
If the information reveals the views of an individual Minister on a government position, arguments about maintaining collective responsibility are likely to carry significant weight.
Collective responsibility is the longstanding convention that all Ministers are bound by Cabinet decisions and carry joint responsibility for all government policy and decisions. It is a central feature of our constitutional system of government. Ministers may express their own views freely and frankly in Cabinet and committees and in private, but once a decision is made they are all bound to uphold and promote that agreed position to Parliament and the public. This principle is set out at paragraph 2.1 of the Ministerial Code (May 2022):
“The principle of collective responsibility requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed in Cabinet and Ministerial committees, including in correspondence, should be maintained.”
The convention of collective responsibility incorporates elements of safe space and chilling effect already considered above. However, there is an additional unique element that carries additional weight: that Ministers need to present a united front in defending and promoting agreed positions. If disclosure undermines this united front by revealing details of diverging views, this undermines ongoing government unity and effectiveness.
If collective responsibility arguments are relevant, they always carry significant weight in the public interest test because of the importance of the general constitutional principle.
This weight may be reduced to some extent if the individuals concerned are no longer politically active, if published memoirs or other public statements have already undermined confidentiality on the issue in question, or if there has been a significant passage of time. However, this does not mean that the publication of memoirs always undermines the confidentiality of the full official record. It always depends on all the circumstances of each individual case.
Whether or not the issue is still ‘live’ does not reduce the public interest in maintaining collective responsibility (although it does affect the weight of related safe space arguments). This is because the need to defend an agreed position will, by its nature, continue to be relevant after a decision has been taken, and because of the constitutional importance of maintaining the general principle of collective responsibility for the sake of government unity.
Some arguments may relate to the protection of civil servants. Such arguments must focus on how disclosure of information about civil servants harms good government. For example, that it would affect their perceived neutrality and undermine their future working relationships, or contribute to a chilling effect, or distract them from their primary task, or weaken the accountability of Ministers. However, these arguments do not generally carry much weight, as officials should not be easily deterred from doing their job.
This argument carries even less weight if it is a lobbyist that is being protected. Lobbyists seek to further the aims and agenda of those they represent by influencing government. So it is unlikely they will be deterred from future involvement.
The personal effect on the individual official is not relevant to this exception. However, arguments that the disclosure is unfair to an individual can and should be made under the personal data exemption in section 40.
Relevant information could include advice given by government lawyers on policy issues.
If the legal advice is from any of the Law Officers, it attracts the exemption provided by section 35(1)(c). As discussed earlier, the public interest in maintaining section 35(1)(c) incorporates the general principle of preserving the confidentiality of communications between a legal adviser and their client that legal professional privilege (LPP) protects. See ‘How do we apply the exemption relating to Law Officers’ advice? – ‘public interest factors’.
However, advice from other government lawyers could still be caught by the other subsections. Although such advice also attracts LPP, the public interest in maintaining them must focus on harm to government decision making processes. Public interest arguments about the principle of LPP are not relevant to these other subsections and should instead be made under section 42, where they will carry strong inherent weight.
Under section 35, there is some public interest in preserving a safe space to seek and consider legal advice without external interference. As with other safe space arguments, this is only likely to carry weight while the issue is still live.
Chilling effect arguments may also carry weight. It may be important to keep legal advice confidential to ensure departments are not discouraged from obtaining fully informed legal advice in appropriate cases. There is likely to be a greater expectation that legal advice is kept confidential compared to other types of advice, and the resulting chilling effect may therefore be stronger. Although lawyers are subject to professional regulation and should be expected to continue giving full and proper advice, the quality of discussions may deteriorate if a department was deterred from even seeking advice for fear it would later be disclosed.
There is always a public interest in disclosing this type of information to promote government transparency and accountability, to increase public awareness, and to enable public participation in the democratic process.
The weight of these interests varies from case to case, depending on the profile and importance of the issue and the extent to which the content of the information actually adds to public debate. However, even if the information does not in fact add much to public understanding, disclosing the full picture always carries some weight as it removes any suspicion of ‘spin’.
You should always consider whether there are additional arguments in favour of disclosure regarding the circumstances of the case. For example, these could include accountability for spending a large amount of public money, the fact that a proposal has a significant impact on the public, a reasonable suspicion of wrongdoing or flaws in the decision making process, or a potential conflict of interest.
There may also be issues regarding lobbying. Lobbying is a legitimate activity that can benefit government decision making. However, there may be issues concerning the process of lobbying or influence of lobbyists.
For example, if only certain lobbyists or interest groups have been given access to government and the opportunity to influence public policy has not been extended to others, then this increases the public interest in disclosure. This is especially relevant where the policy is still being formulated and there is still opportunity for others to present their views, as this broadens the range of opinions being taken into account.
In Corderoy v Information Commissioner & Department for Exiting the EU, EA/2019/0109 & 0111, 22 November 2019, the First Tier Tribunal considered a request for information relating to meetings between officials and the Legatum Institute. It was accepted that although the institute was a charitable think-tank and an expert on trade, it also wished to shape government policy in the area of the UK’s trade negotiations with the EU. The department recognised that it was not possible to disentangle the institute’s expert advice from, what was in effect, lobbying.
The First Tier Tribunal found that the institute had received generous access to the government including meetings with the Permanent Secretary. It also took note of the fact that the Charity Commission had recently found some of the institute’s work on Brexit had failed to meet the required standards of balance and neutrality. All of this lent weight to the public interest in disclosing information about the institute’s contribution to the department’s policy.
The First Tier Tribunal considered what one would normally expect the public to know about the input government received from external organisations. In more standard consultation exercises, many bodies were only prepared to contribute under conditions of privacy. However, they would expect an anonymised summary of consultation responses to be published. Those described as ‘habitual consultees’ such as the CBI or the TUC usually published their positions on major issues. Therefore, there were usually mechanisms by which the public could understand the range of views that had been considered.
However, in the more dynamic environment of the Brexit trade negotiations, the public had little knowledge of the positions promoted by the institute.
Therefore, the First Tier Tribunal decided that even though the government was still developing its policy in this area, the public interest favoured disclosing the information that the institute had given officials, together with information summarising the institute’s position. However, regarding the information on how officials analysed these points and used them when advising Ministers, the public interest favoured maintaining the exemption.
You should also consider whether disclosure could actually encourage better quality advice and more robust, well-considered and defendable decision making in future.
Section 35(4) specifically acknowledges that there is particular public interest in the disclosure of any factual information used to provide an informed background to government decisions. This only technically applies to the public interest test under section 35(1)(a). But, the Commissioner consider that in fact it recognises a generally applicable public interest which should be taken into account when considering background factual information falling under any subsection of section 35.
Section 63(1) says section 35 cannot apply to historical records. In simple terms, this originally meant that the exemption expired after 30 years. It could not cover any information contained in a file more than 30 years old.
This 30-year time limit has now been amended to 20 years by the Constitutional Reform and Governance Act 2010. This reduction is being phased in gradually over 10 years from 2013 onwards until it reaches 20 years by 2023. Details are set out in The Freedom of Information (Definition of Historical Records) (Transitional and Saving Provisions Order 2012 (SI 2012/3029).
The section 36 exemption (prejudice to the effective conduct of public affairs) protects many of the same interests. However, sections 35 and 36 are mutually exclusive. This means that if any part of section 35 is engaged, section 36 cannot apply - even if the public interest test results in disclosure under section 35.
Section 36 is available to you, however, if the information relates to government policy or Ministerial communications but neither section 35(1)(a) nor (b) can apply because of section 35(2). In other words, the information consists of statistical information used to inform a policy decision that’s already been taken.
Also, if you are not sure whether section 35 is engaged, you can still claim section 36 as an alternative or fallback exemption to protect any information falling outside the scope of section 35. This ensures that your position is protected if the Commissioner or the First Tier Tribunal later decides that section 35 was not in fact engaged.
Note that section 36 operates in a slightly different way and you need to obtain an opinion from your ‘qualified person’ to claim the exemption. Public interest arguments are, however, likely to be very similar to those relevant under section 35. See our guidance on section 36 for further information.
If the information is environmental, this guidance is not relevant and you instead need to consider disclosure under the Environmental Information Regulations 2004 (EIR). The most relevant EIR exceptions are likely to be regulation 12(4)(d) (material in the course of completion, unfinished documents and incomplete data) and regulation 12(4)(e) (internal communications).
- The public interest test
- Legal professional privilege (section 42)
- Effective conduct of public affairs (section 36)
- Material in the course of completion, unfinished documents and incomplete data (regulation 12(4)(d)
- Internal communications (regulation 12(4)(e)
- Internal Consultation Resource - Keeping internal consultations on FOI requests timely and transparent