In a decision that forced me to google Pericles (an ancient Greek politician) and Santayana (a Spanish-American philosopher) the First-tier Tribunal (General Regulatory Chamber) has allowed an appeal relating to the Home Office’s refusal to disclose the report on “The Historical Roots of the Windrush Scandal”. This is the second successful freedom of information appeal involving the Home Office in as many months, following on from this one in August. This case is James Coombs v Information Commissioner & Anor [2024] UKFTT 804 (GRC).

Background

On 31 May 2022 James Coombs made a freedom of information request to the Home Office as follows:

Please provide copies of any reports commissioned by the Home Office to investigate the underlying causes of issues faced by immigrants from the Caribbean who arrived in the UK prior to 1973. These people are commonly referred to as the Windrush generation. I understand that one such report is entitled, “Historical Roots of the Windrush Scandal”.

That request was no doubt prompted by this article in the Guardian who were leaked the report in May 2022.

The Home Office refused the request on 16 June 2022, relying on the exemption for information that relates to “the formulation or development of government policy” at section 35(1)(a) of the Freedom of Information Act 2000. The appellant requested an internal review on 2 September 2022 and chased this on 6 October 2022. On 29 October 2022 the appellant contacted the Information Commissioner about the delay.

In response to a prompt from the commissioner, on 21 November 2022 the Home Office replied and said that it was now relying on three different exemptions, all relating to “prejudice to effective conduct of public affairs”. Sections 36(2)(b)(i) and (ii) and 36(2)(c) provide for information to be exempt where “in the reasonable opinion of a qualified person” disclosure would or would be likely to inhibit the free and frank provision of advice or “exchange of views for the purposes of deliberation”, or where disclosure would otherwise prejudice the effective conduct of public affairs. The Home Office explained its position:

The report considers important issues which required a safe space to ensure frankness and openness. If this report was to be disclosed, it would be likely to prejudice the ability of the department to develop further training material in the future with regards to the lessons learnt in a ‘safe space’. Disclosure would inhibit discussions and the ability of officials to provide and receive advice in a free and frank way. This would not be conducive to the effective conduct of public affairs as it would result in a less robust, well-considered package. There is of course a public interest in transparency, however taking the above into account I am satisfied the public interest falls in favour of withholding the information.

The appellant then complained to the Information Commissioner who dismissed this on 23 May 2023. The commissioner accepted the Home Office’s argument that:

a hypothetical future author commissioned to write a similar report may self-censor in fear of future disclosure, thereby affecting the quality of the advice provided by the Home Office. Ministers may also be reluctant to commission, or be asked to commission, similar reports that may include criticism of their predecessors or could become associated with current policies.

The commissioner also accepted that:

reaction to the requested report is likely to be unfavourable and reflect the Home Office in a poor light, as demonstrated by The Guardian report in 2022, this negativity would be likely to influence Home Office staff and may deter them from engaging in training programmes on the history of migration with associated costs of rewriting the training programme.

The appellant appealed the commissioner’s decision to the First-tier Tribunal (General Regulatory Chamber). The grounds included that the document was not policy and that the significant public interest in Windrush enhanced the need to disclose. It was also argued that neither the hypothetical of whether a future author would self-censor nor a reluctance for ministers to seek advice was relevant to section 36(2)(b)(i).

Written evidence from the Home Office made clear that it was Lord Murray (who at the relevant time was Parliamentary Under Secretary of State for Migration and Borders) who decided that section 36 was engaged in this case [paragraph 13].

It seems that the complaint made by the appellant was not the only one received by the Information Commissioner about non-disclosure of this report. In March 2023 the Information Commissioner wrote to the Home Office about this. Following consideration of a submission from the Home Office, Lord Murray again assessed and approved the use of the section 36 exemptions in April 2023.

The appeal was considered on the papers and the judge held that “While the relevant qualified person found it reasonable to conclude that all the exemptions were engaged each is at most tenuous and uncertain in impact”. In relation to the balance of public interest, the judge held that it was “significant that there is no new information not already in the public domain”.

The Home Office was ordered to disclose the report within 30 days of the date of decision, 6 September 2024.

Conclusion

As happened with last month’s decision, the Information Commissioner was again criticised by the tribunal, who said that “an opinion on withholding the material based on very weak evidence has been adopted uncritically by the Commissioner”. A more robust approach to the Home Office is clearly needed from the commissioner. Thanks to those such as the appellant who pursue these cases, hopefully we might start seeing some changes, or alternatively more decisions like the ones we have seen recently.