Upper Tribunal decides FOIA appeal on the development of government policy relating to the Union


By an information request on 3 June 2019, Mr Tommy Sheppard, the Scottish National Party MP for Edinburgh East, requested information from the Cabinet Office relating to certain polling. The polling concerned the strength of the Union since January 2018. His request was refused. Mr Sheppard’s appeal against the refusal to disclose such information succeeded before the First-tier Tribunal. The FtT held that the ‘formulation or development of government policy’ exemption in s.35(1)(a) FOIA was not engaged, finding that the information related to the implementation of government policy on the Union, rather than the formulation or development of government policy. In turn, the Cabinet Office appealed to the Upper Tribunal.

The Upper Tribunal allowed the Cabinet Office’s appeal. Upper Tribunal Judge Wright held that s.35(1) was engaged on the facts, finding that whilst the requested information related to the high-level and settled policy of maintaining the Union, it also related to the formulation or development of sub-policies connected to that settled policy. The Upper Tribunal remitted the appeal to be redecided before a freshly constituted First-tier Tribunal.

A copy of the Upper Tribunal’s judgment can be found here.

Stephen Kosmin (led by Ivan Hare KC) acted for the Cabinet Office. Raphael Hogarth acted for Mr Sheppard.