Ministry of Housing, Communities & Local Government v The Information Commissioner & Anor

Preliminary matters

1. In this decision (and in the closed annex; see paragraph 3) , we use the following terms to denote the meanings shown: Announcement: The announcement dated 28 January 2021 regarding free entry to the Centre, as referred to in paragraph 6. Authority: The Ministry of Housing, Communities & Local Government (the Appellant), formerly The Department for Levelling Up, Housing and Communities . Centre: The proposed UK Holocaust Memorial and Learning Centre, referred to in paragraph

6. Commissioner: The Information Commissioner (the First Respondent). Decision Notice: The Decision Notice of the Commissioner dated 19 September 2024, reference IC-296549-B8N1, relating to the Request. Duty to Disclose: The duty of a public authority to communicate requested information which it holds, pursuant to section 1(1)(b) (set out in paragraph 26). Free Access Policy: As defined in paragraph 44. FOIA: The Freedom of Information Act 2000 . Ground 1: The first of the Appellant’s grounds of appeal, as specified in paragraph 18. Ground 2: The second of the Appellant’s grounds of appeal, as specified in paragraph 18. Ground 3: The third of the Appellant’s grounds of appeal, as specified in paragraph 18. Public Interest Test: The test, pursuant to section 2(2)(b) (set out in paragraph 29), as to whether, in all the circumstances of the case, the public interest in maintaining the exemption to the Duty to Disclose outweighs the public interest in disclosing the information. Request: The request for information made to the Authority by the Requestor dated 19 January 2024, as set out in paragraph 7. Requestor: Dr Dorian Gerhold (the Second Respondent). Requested Information: The information which was requested by way of the Request.

2. Unless the context otherwise requires (or as otherwise expressly stated), references in this decision : a. to numbered paragraphs are references to paragraphs of this decision so numbered; b. to any section are references to the applicable section of FOIA; and c. to the Commissioner’s “investigation” mean the Commissioner’s investigation, for the purposes of section 50, of the Requestor’s complaint relating to the Authority’s response to the Request.

3. There is a closed annex to this decision. The closed annex refers, in support of some of our reasons below, to some specific aspects of the Requested Information which was withheld by the Authority and contained in the closed bundle in the appeal. A copy of the closed annex has been sent to the Appellant and the Commissioner. It has been withheld from the Requestor because otherwise it would negate the Authority’s right to seek to appeal this decision. It also refers to some content of the Requested Information which has been withheld under section 42, which was not the subject of the appeal (and consequently will remain withheld accordingly). Introduction

4. This was an appeal against the Decision Notice, which (in summary) decided that the Authority was not entitled to withhold the Requested Information under section 35(1)(a), but could rely on section 42(1) to withhold a paragraph of the Requested Information. Background to the Appeal

5. The background to the appeal is as follows.

6. It may be helpful to first provide some context relevant to the Request. On 28 January 2021, Robert Jenrick (the Communities Secretary at the time), announced free admission, for perpetuity, to the proposed UK Holocaust Memorial and Learning Centre. The announcement (cited in the Decision Notice) was made by way of a ‘press release’, published at https://www.gov.uk/government/news/jenrick-announces-free-admission-to-the-proposed-uk-holocaust-memorial. The Request

7. On 19 January 2024, the Requestor contacted the Authority and requested information in the following terms: “ Please send me the briefing papers, including the financial plans, which informed the decision of the Communities Secretary, Robert Jenrick, on 28 January 2021 that entry to the proposed Holocaust Memorial and Learning Centre should be free. ”.

8. The Authority responded on 21 February 2024. It refused to provide the Requested Information, citing section 35(1)(a) (formulation or development of government policy) and section 40(2) (personal information).

9. On the same date, the Requestor requested an internal review in respect of the Authority’s response to the Request.

10. On 19 March 2024, the Authority provided the Requestor with the outcome of its internal review, upholding its previous position.

11. On 25 March 2024, the Requestor complained to the Commissioner about the Authority’s response to the Request.

12. During the course of the Commissioner’s investigation, the Authority stated that it also considered an aspect of the Requested Information to be exempt from disclosure under section 42 (legal professional privilege). The Requestor also confirmed that he was content for any personal data to be redacted from the Requested Information.

13. The Commissioner subsequently issued the Decision Notice. The Decision Notice

14. In the Decision Notice, the Commissioner decided that: a. the Authority was not entitled to rely on section 35(1)(a) to withhold the Requested Information as, although the exemption in that section was engaged, the Public Interest Test favoured disclosure; and b. the Authority was, however, entitled to rely on section 42(1) to withhold one paragraph of the Requested Information which it had sought to withhold in reliance on that section.

15. As the Requestor had confirmed that he was not seeking disclosure of any personal data, the Decision Notice did not address the Authority’s application of section 40(2) to withhold relevant aspects of the Requested Information (some names, email addresses and phone numbers).

16. The Decision Notice required the Authority to disclose the Requested Information, save for the aspects of it which it had withheld under section 40(2) and section 42(1). The appeal The grounds of appeal

17. The Authority appealed against the Commissioner’s determination in the Decision Notice that the relevant Requested Information should be disclosed. The basis of the Authority’s appeal was that section 35(1)(a) is engaged in respect of the Request (as concluded by the Commissioner in the Decision Notice) but that (contrary to the findings in the Decision Notice) the Public Interest Test favoured maintaining the exemption in that section.

18. The Appellant’s grounds of appeal covered three separate issues which, in essence, were based on its views that the Commissioner failed to apply the Public Interest Test correctly because: a. he mischaracterised the policy of free admission to the Centre as a standalone policy and did not recognise that the policy to which the Requested Information relates was a live policy (we refer to this below as “Ground 1”); b. he failed to correctly consider the ‘safe space’ and ‘chilling effect arguments’ (we refer to this below as “Ground 2”); and c. he failed to correctly consider and give sufficient weight to his earlier decisions (we refer to this below as “Ground 3”).

19. We address the Authority’s three grounds of appeal in further detail later below. The Tribunal’s powers and role

20. The powers of the Tribunal in determining the appeal are set out in section 58, as follows: “(1) If on an appeal under section 57 the Tribunal considers— (a) that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal. (2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based. ”.

21. In summary, therefore, the Tribunal’s remit for the purposes of the appeal was to consider whether the Decision Notice was in accordance with the law. In reaching its decision, the Tribunal may review any findings of fact on which the Decision Notice was based and the Tribunal may come to a different decision regarding those facts. Essentially, the Tribunal is empowered to undertake a ‘full merits review’ of the appeal before it (so far as the Decision Notice is concerned). Mode of hearing

22. The parties consented to the appeal being determined by the Tribunal without an oral hearing.

23. The Tribunal considered that the appeal was suitable for determination on the papers in accordance with Rule 32 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 and was satisfied that it was fair and just to conduct the appeal in this way. The evidence and submissions

24. The Tribunal read and took account of an open bundle of evidence and pleadings, as well as a closed bundle. The closed bundle contained the Requested Information which had been withheld by the Authority, as well as unredacted aspects of the Commissioner’s response to the appeal and the Authority’s reply which had been redacted in the open bundle.

25. All of the contents of the bundles (including the parties’ submissions) were taken into account, even if not directly referred to in this decision. The relevant statutory framework We acknowledge the Practice Direction dated 4 June 2024 ( https://www.judiciary.uk/guidance-and-resources/practice-direction-from-the-senior-president-of-tribunals-reasons-for-decisions/ ) and particularly paragraph 9, which refers to the First-tier Tribunal not needing to specifically refer to relevant authorities. We include references to the applicable legislative framework , to provide relevant context, but have accordingly not set out details of the applicable case law . and legal principles General principles

26. Section 1(1) provides individuals with a general right of access to information held by public authorities. It provides: “ Any person making a request for information to a public authority is entitled— (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him. ”.

27. In essence, under section 1(1), a person who has requested information from a public authority is entitled to be informed in writing whether it holds that information. If the public authority does hold the requested information, that person is entitled to have that information communicated to them. However, those entitlements are subject to the other provisions of FOIA, including some exemptions and qualifications which may apply even if the requested information is held by the public authority. Section 1(2) provides: “ Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14. ”.

28. Accordingly, section 1(1) does not provide an unconditional right to be told whether or not a public authority holds any information, nor an unconditional right of access to any information which a public authority does hold. The rights contained in that section are subject to certain other provisions of FOIA, including section 2.

29. Section 2(2) addresses potential exemptions to the Duty to Disclose. That section provides: “ In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that— (a) the information is exempt information by virtue of a provision conferring absolute exemption, or (b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. ”.

30. The effect of the above is that some exemptions which are set out in Part II of FOIA are absolute and some are subject to the Public Interest Test. Section 2(3) explicitly lists which of those exemptions are absolute (and, pursuant to that section, no other exclusions are absolute). Section 35 (which is relevant for the purposes of the appeal) is not included in that list.

31. Accordingly, in summary, the exemption to the Duty to Disclose in section 35(1)(a) is subject to the Public Interest Test. Section 35 – formulation of government policy, etc

32. So far as is relevant for the purposes of the appeal, section 35 provides: “(1) Information held by a government department… is exempt information if it relates to— (a) the formulation or development of government policy… ”. Discussion and findings Scope of the appeal

33. The Authority did not challenge the Decision Notice’s findings that it was entitled to rely on section 42(1) to withhold the relevant aspect of the Requested Information pursuant to that section.

34. In his response to the appeal, the Requestor confirmed that he accepted the Commissioner’s findings in the Decision Notice regarding the application of section 42. As we have noted, the Requestor had also not challenged the Authority’s reliance on section 40(1) in respect of withholding the personal data in the Requested Information (and he confirmed in his response that this was not an issue in respect of the appeal).

35. All three parties accepted that section 35(1)(a) is engaged in respect of the Requested Information. However, whilst the Authority argued that the Public Interest Test favoured maintaining the exemption in that section, the view of the Commissioner and the Requestor was that the Public Interest Test favoured disclosure.

36. Accordingly, the issue which we needed to determine in the appeal was whether the Commissioner was correct to conclude in the Decision Notice that, in respect of section 35(1)(a), the Public Interest Test favoured disclosure of the relevant Requested Information. Ground 1

37. The Authority disputed the Commissioner’s finding (in paragraph 27 of the Decision Notice) that “ the requested information relates to a specific policy matter which has already been decided, and the decision announced ”.

38. The Authority submitted that the policy to which the Requested Information relates is the Government’s commitment to establish the Centre and that it was ‘government policy’ as the final policy decisions relating to the delivery of the Centre are subject to approval by Ministers. The Authority stated that the Centre is still under development and that Ministers still need to make decisions in respect of it, including matters relating to its operation.

39. The Authority acknowledged that the Announcement had been made regarding the cost of admission to the Centre. The Authority’s position was that the cost of admission to the Centre remained to be categorised as an operational decision subject to final approval by Ministers and that it was not an issue which was the subject of a separate policy of its own standing, notwithstanding the Announcement.

40. The Authority stated that, at the time of the Announcement, the process of obtaining planning consent for the proposed site of the Centre (at Victoria Tower Gardens) had been underway since 2018 and that planning consent was originally granted in July 2021. It also stated that such planning consent was quashed by the High Court in April 2022. We do not need to address here the reasons for the planning consent being quashed, but the Authority explained that proposed legislation was progressing through Parliament which aimed to resolve matters related to that.

41. The Authority therefore submitted that, as planning consent for the proposed location of the Centre at Victoria Tower Gardens has not yet been obtained, the policy in question is incomplete and accordingly remains live policy.

42. The Authority also stated that there was still some uncertainty regarding the proposed legislation referred to in paragraph 40 and whether planning permission would in fact be granted at the Victoria Tower Gardens site. The Authority submitted that, if that were the case, then it would need to explore alternatives to the current proposals, including proposals at different sites.

43. The Authority’s position was that, if alternative proposals needed to be explored, then all aspects of the design, building and operation of the Centre would need to be reconsidered and this could include the commitment to free entry to the Centre, as the Announcement was based only upon the plans for the Centre at Victoria Tower Gardens.

44. The Commissioner’s view (as stated in paragraph 16 of the Decision Notice) was that the specific standalone policy in question was the policy that the Centre will be free of charge to enter (the “Free Access Policy”), pursuant to the Announcement. He considered that it was wrong of the Authority to conflate the Free Access Policy, as a specific standalone policy, to the overall policy of the Government’s commitment to establishing the Centre.

45. The Commissioner argued that the Announcement was made three years before the Centre was originally expected to open. He considered that if the Free Access Policy was intrinsically linked to the issue of planning permission then the Free Access Policy would have been publicly reversed when the planning permission was quashed. The Commissioner’s position was that this had not happened because the Free Access Policy was a specific standalone policy.

46. The Requestor also disputed the Authority’s position that the Announcement was dependent on the Centre being located at a particular site. He gave the following three reasons in support of his view.

47. First, he stated that the Announcement did not give any indication that the decision was provisional, or dependent on a particular site or design.

48. Secondly, the Requestor submitted that the reasons given for free entry in the Announcement related to the Centre wherever it was built. In this regard, he cited Mr Jenrick’s statement (in the Announcement) that: “ Free entry, in perpetuity, to the proposed UK Holocaust Memorial and Learning Centre will mean that there are no barriers to people commemorating and learning about the evils of the Holocaust and is in keeping with our national tradition of free entry to monuments and museums of great national significance. ”

49. Thirdly, the Requestor contended that there is no inherent reason why free entry could be justified for the Centre if it was located in Victoria Tower Gardens but not if the Centre was located elsewhere. Related to this, he stated that no reason had been given by the Authority as to why a different site or design would call into question the issue of free entry.

50. We consider Ground 1 to be the key issue in the appeal. This is because issues regarding Ground 2 were largely dependent on our findings in Ground 1 (and we consider Ground 3 to be immaterial), for the reasons we refer to later below.

51. We agree with the arguments put forward by the Commissioner and the Requestor which we have outlined. We find that the Announcement was a distinct and specific announcement regarding free admission to the Centre (the Free Access Policy). We also find that the Announcement was not expressed as being conditional on the Centre being located at Victoria Tower Gardens. We set out below some relevant aspects of the Announcement in respect of those views.

52. The main of the Announcement heading was: “ Jenrick announces free admission to the proposed UK Holocaust Memorial ”. Its subheading stated: “ Announcement puts the new national memorial on a similar footing to the most important monuments and museums in UK. ”

53. After the heading and subheading (and below a picture), the Announcement started with some points in bullet form. The first of those bullets stated: “ Government to provide free entry for all visitors to the proposed new national Memorial and Learning Centre, in perpetuity. ” and the second bullet (with emphasis added) stated: “ Commitment ensures everyone can pay their respects, contemplate and honour, the six million Jewish men, women and children who were murdered in the Holocaust and all other victims of Nazi persecution. ”.

54. The first two main paragraphs of text in the Announcement (after those bullet points) stated: “ The government will provide free entry, in perpetuity, to everyone visiting the proposed new Holocaust Memorial and Learning Centre, Communities Secretary Robert Jenrick announced today (28 January 2021). Giving universal free access to the memorial puts the UK on the same footing as the most important monuments and museums and will reassure Holocaust survivors their testimony will be freely available to all when they are no longer able to tell the story themselves, forever. ”

55. As can be seen, there was no qualification in the above language in the Announcement to the commitment that free entry to the Centre would be provided, in perpetuity.

56. The Announcement went on to state: “ The Memorial, which is planned to be built next to Parliament in Victoria Tower Gardens, will be the focal point for national remembrance of the six million Jewish men, women and children murdered in the Holocaust and all other victims of Nazi persecution. ”.

57. Accordingly, the Announcement referred to the planned location of the Centre at Victoria Tower Gardens. However, it did not say anything to the effect that the commitment to free entry was conditional on the Centre being built at that location.

58. The Announcement also subsequently stated: “ Government support will supplement funds raised from visitor donations and other charitable contributions to cover the running costs of the Memorial and Learning Centre which, subject to planning permission, is expected to open in 2024. The government has already announced that it will contribute up to £75 million towards construction costs, to be supplemented by £25 million from charitable donations. ”.

59. The Announcement therefore set out some details regarding how the Free Access Policy would be financed, but without qualification as to the location of the Centre. Whilst reference was made to ‘planning permission’, this was in the context of the anticipated opening date of the Centre. Again, nothing was stated to the effect that the commitment to free entry was conditional on the design of the Centre, where it was located, or any planning permission being successful.

60. We therefore find that the commitment regarding free entry to the Centre was a separate standalone policy (the Free Access Policy), on the basis that it was not dependent on the design or location of the Centre, or any issues relating to planning permission. We also find that, as the wording of the Announcement was unequivocal, the Free Access Policy had been given final approval and was therefore not a live policy at the time of the Request.

61. See point 1 of the closed annex to this decision.

62. The Authority argued that “ it would have made no sense to qualify [the Announcement] with “a range of hypothetical scenarios about other memorial sites ”, because there was a clear commitment to the Centre being located at Victoria Tower Gardens.

63. We do not accept that argument, particularly given the fact that planning consent for the proposed site had been underway since 2018 and, at the time of the Announcement, planning consent had not been obtained. There was therefore still some uncertainty as to whether planning permission would be granted at that time. Also, the Authority’s stated position in the appeal (regarding Ground 2 in particular) was that there were uncertainties connected with the site and the planning permission (and in our view those uncertainties did not arise only following the planning consent being quashed in April 2022).

64. The Authority also asserted that the Announcement was only made in the context of the Centre being located at Victoria Tower Gardens. It stressed that the Announcement referred to providing “ free entry for all visitors to the proposed new national Memorial and Learning Centre ”, emphasising that the term “proposed” had been used. The Authority’s position was that the Announcement was made in the context of one particular scheme, namely regarding the proposed location of the Centre at Victoria Tower Gardens only.

65. Whilst the Announcement did use the term “proposed”, we do not agree with the Authority’s interpretation that this was relating to the proposed location of the Centre at Victoria Tower Gardens. Having regard to the wording of the Announcement, we find that the term “proposed” was used in the context of the proposed ‘Holocaust Memorial and Learning Centre’ and not in the context of the proposed location of the Centre.

66. For the same reason, we do not accept the Authority’s related argument that, even if the Free Access Policy was a separate standalone policy, it would be very narrowly defined as the policy for the provision of free entry for all visitors to the proposed new Centre at Victoria Tower Gardens . As we have noted, there was no such caveat in the Announcement. The Announcement did state that “ The Memorial… is planned to be built next to Parliament in Victoria Tower Gardens… ”, but this reference to the planned location was made after the first two main paragraphs of text we cited in paragraph 54 . There was no suggestion in the Announcement that the commitment to free access was conditional on where the Centre was to be built. In other words, the Announcement did not state that there would be free admission to the Centre if it was located at Victoria Tower Gardens.

67. The Authority stated that we could observe from the Requested Information that financial planning/forecasting, including affordability assessments, was only undertaken in consideration of the free entry proposal at the Victoria Tower Gardens site (and not in respect of any other site). We accept that some of the Requested Information referenced the proposed location of the Centre at Victoria Tower Gardens. However, not all of it specifically referenced the location when addressing financial planning and forecasting matters.

68. See point 2 of the closed annex to this decision.

69. Moreover, the Authority recognised that there was no certainty that the Centre would be opened at Victoria Tower Gardens. We therefore find that the Announcement was made cognisant of the possibility that the Centre may not be built at Victoria Tower Gardens.

70. See point 3 of the closed annex to this decision.

71. Consequently, whilst the Authority argued that the financial planning and forecasting matters, including with regard to potential operating costs, were only undertaken in respect of the location of the Centre at Victoria Tower Gardens, that does not detract from the fact that the Authority was aware of the possibility that the Centre may not open at that location, yet the Announcement was made nevertheless.

72. For the reasons we have given, we reject the Authority’s arguments regarding Ground 1. Ground 2

73. The Authority contended that the Commissioner failed to apply the Public Interest Test correctly because he failed to correctly consider the ‘safe space’ and ‘chilling effect’ arguments.

74. The premise behind Ground 2 was that the Commissioner gave insufficient weight to those arguments because he incorrectly categorised the Announcement as relating to a separate policy matter which had already been decided (as referred to in Ground 1).

75. We do not set out the details here, but the Authority’s arguments were based around the need for a ‘safe space’ regarding consideration of issues relating to how the Centre is planned and delivered, and about ‘chilling effect’ concerns for the future provision of free and frank advice and the exchange of views if the Requested Information was disclosed.

76. The Authority’s arguments were based on uncertainties in relation to the Centre, including whether planning consent is obtained for Victoria Tower Gardens, and wide ranging public views regarding the Centre. It was concerned about potential delays to the project, and resulting further costs, “ if every single decision in relation to it was open to challenge ”. Consequently, the Authority submitted that the Public Interest Test favoured maintaining the exemption in section 35(1)(a).

77. The Commissioner’s position was that the sensitivity of the Requested Information had waned, on the basis that the Free Access Policy was no longer live at the time of the Request. As we have noted, this was disputed by the Authority (with particular reference to the outstanding issue of planning permission) and it argued that the project remains topical and that the proposed site at Victoria Tower Gardens remains “ extremely controversial ”. The Authority referred to the content of the Requested Information and contended that it was sensitive, given the controversial nature of the project.

78. Given our earlier findings about the Free Access Policy being separate and decided (by way of the Announcement) at the time of the Request, we consider that there is no need for a ‘safe space’ to be maintained and consequently that no weight should be attached to that with regard to the Public Interest Test.

79. For similar reasons, we do not agree with the Authority’s arguments regarding the ‘chilling effect’. We are not persuaded that disclosure of the relevant Requested Information would create a ‘chilling effect’, especially given that it relates to a matter which is already decided. There was also no evidence to support the Authority’s arguments regarding the ‘chilling effect’. Consequently we find that little weight should be attached to ‘chilling effect’ concerns in respect of the Public Interest Test.

80. Linked to the foregoing, we also find that consideration had been given to the question of making the Announcement at an early stage (notwithstanding the possibility that the Centre may not be built at Victoria Tower Gardens), yet the decision was nevertheless made to proceed with the Announcement. Similarly, it was open to the Authority to make the Announcement conditional (whether in respect of the proposed planning permission or otherwise) but, as we have noted, it was not so caveated.

81. See point 4 of the closed annex to this decision.

82. We consider that the decision to make the Announcement (without conditions or caveats), even though other matters relating to the Centre were not finalised, militates against the Authority’s stated ‘chilling effect’ concerns regarding disclosure of the relevant Requested Information.

83. The Authority also submitted, with regard to the Public Interest Test, that disclosure of the relevant Requested Information will not particularly help further public understanding of matters relating to the free admission to the Centre, on the basis that similar information is already in the public domain. The Authority also considered, in essence, that there was limited wider public interest beyond the Requestor’s own personal interests in the Requested Information.

84. We accept that there is a certain amount of information in the public domain relating to the Free Access Policy. However, based on our assessment of the Requested Information, we consider that disclosure of it would help further public understanding of the Free Access Policy and matters relating to the decision in respect of it. We also consider that there is wider public interest in the relevant Requested Information, including having regard to the Authority’s own arguments about the controversial nature of the project, but also given the potential amount of public money involved (and what has already been spent).

85. We therefore reject the Authority’s arguments regarding Ground 2 and we find that the Commissioner was correct to conclude, in the Decision Notice, that the Public Interest Test favoured disclosure of the relevant Requested Information. Ground 3

86. The Authority argued that the Commissioner failed to apply the Public Interest Test correctly because he failed to correctly consider and give sufficient weight to his earlier decisions.

87. During the course of the Commissioner’s investigation, the Authority referred to four other decision notices of the Commissioner in which he found that the Authority was entitled to withhold information relating to the Centre under section 35(1)(a). Those four decisions were cited in paragraph 24 of the Decision Notice. Two of the decision notices were also upheld on appeal to the First-tier Tribunal.

88. The crux of Ground 3 was that the Authority considered that the Commissioner had been inconsistent in his decision making and should have allowed the Authority to withhold the Requested Information, given his conclusions in those earlier decisions.

89. The Commissioner’s position (which was also reflected in the Decision Notice) was that he previously upheld the Authority’s approach to withholding the information in question on the basis that the policy which was the subject of the requests in those cases was still live at the relevant time. This contrasted with the Commissioner’s view, in the current instance, that the Free Access Policy was not live at the time of the Request.

90. We agree with the Commissioner’s submissions that Ground 3 can be dismissed on the basis that each decision notice of his is unique and turns on its own facts (including with regard to the Public Interest Test).

91. Moreover, in respect of the Tribunal’s jurisdiction which we referred to in paragraphs 20 and 21, the Tribunal undertakes a ‘fresh review’ of a public authority’s response to a request for information under FOIA and exercises a ‘full merits appellate jurisdiction’ of the Commissioner’s decision notices. Consequently, when an appeal is made to the First-tier Tribunal in respect of a decision notice issued by the Commissioner, the Tribunal itself is not constrained to determine matters by reference to the Commissioner’s earlier decision notices (or the decision notice which is actually the subject of the appeal).

92. Further, even other First-Tier Tribunal decisions are not binding on us and, again, each such decision turns on its facts.

93. Therefore we consider that the Authority’s arguments in Ground 3 regarding the consistency of the Commissioner’s earlier decisions have no merit. Final conclusions

94. For all of the reasons we have given, we find that the Decision Notice was correct to conclude that the Authority was not entitled to rely on the exemption in section 35(1)(a) in respect of the information it withheld in reliance on that section on the basis that the Public Interest Test favoured disclosure of it.

95. We therefore dismiss the appeal.