Section 35 - Government policy

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.

In detail

• 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?
  • What is government policy?
  • What constitutes the formulation of development of government policy?
  • Formulation v implementation
  • Development v implementation
  • ‘Relates to’
  • Can agencies and other arm’s-length bodies be involved in policymaking?
  • Public interest factors
• How do we apply the exemption relating to Ministerial communications?
  • How is the exemption engaged?
  • Public interest factors
• How do we apply the exemption relating to Law Officers’ advice?
  • How is the exemption engaged?
  • Public interest factors
• How do we apply the exemption relating to the operation of any Ministerial private office?
  • How is the exemption engaged?
  • Public interest factors
• Can all the exemptions apply to statistical information?
  • How do we define ‘statistical information’?
  • Statistics used to provide an informed background
  • Once a policy decision has been taken
• How do we apply the ‘neither confirm nor deny’ exemptions?
  • How do we engage the NCND exemption?
  • NCND public interest test
  • How does the NCND exemption apply to Law Officers’ advice?
• How do we apply the public interest test?
  • No inherent public interest
  • Contents based approach to applying the public interest
  • Safe space arguments
  • Chilling effect arguments
  • Record keeping arguments
  • Collective responsibility
  • Protection of officials
  • Legal advice
  • Public interest in disclosure
• Are there any other considerations?
  • Historical records (the 20-year rule)
  • Interaction with section 36
  • Environmental information
• Further reading

What are the general principles of the exemption?

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.

How do we interpret ‘relates to’?

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.

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.

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.

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.

How do we apply the exemption relating to the formulation or development of government policy?

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.

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.

What is government policy?

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.

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.

What constitutes the formulation or development of government policy?

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.

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.

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.

We consider that the following factors are indicators of the formulation or development of government policy:

• 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.

Formulation v implementation

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 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 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.

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.

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.

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.

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.

 

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.

Development v implementation

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.

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.

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.

 

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.

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.

Can agencies and other arm’s-length bodies be involved in policymaking?

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.

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 available to them.

‘Relates to’

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.

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.

Public interest factors

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.

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 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.

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.

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.

How do we apply the exemption relating to Ministerial communications?

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.

How is the exemption engaged?

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.

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.

Public interest factors

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.

This point was made again in Cabinet Office v Information Commissioner [2014] 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.

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.

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.

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.

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.

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.

How do we apply the exemption relating Law Officers’ advice?

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.

How is the exemption engaged?

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.

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.

Public interest factors

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.

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.

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.

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.

How do we apply the exemption relating to the operation of any Ministerial private office?

Section 35(1)(d) covers information relating to the operation of Ministerial private offices:

35.—(1) Information held by a government department or by the Welsh Government is exempt information if it relates to—

(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.

How is the exemption engaged?

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.

 

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.

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).

Public interest factors

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.

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.

Can all the exemptions apply to statistical information?

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).

How do we define statistical information?

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.

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.”

Statistics used to provide an informed background

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.

Once a policy decision has been taken

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.

How do we apply the ‘neither confirm nor deny’ exemptions?

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).

How do we engage the NCND exemption?

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.

NCND public interest test

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.

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.

How does the NCND exemption apply to Law Officers’ advice?

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.

 

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.

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.

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.

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.

How do we apply the public interest test?

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.

No inherent public interest

There is no inherent or automatic public interest in withholding information just because it falls within one of these class-based exemptions.

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.

Contents based approach to applying the public interest

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.

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.

Safe space arguments

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.

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.

Chilling effect arguments

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) [2019] 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 [2008] 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.

Record keeping 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.

Collective responsibility

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 in the Ministerial Code:

“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.

Protection of officials

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.

Legal advice

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.

Public interest in disclosure

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.

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.

Are there any other considerations?

Historical records (the 20-year rule)

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).

Interaction with section 36

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.

Environmental 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).

Further reading