Gerhold v Information Commissioner & Anor [2025] UKFTT 561 (GRC) (27 May 2025)

Neutral Citation Number: [2025] UKFTT 561 (GRC) Appeal numbers: EA/2023/0232 Appeal Number: EA/2023/0318 First-tier Tribunal (General Regulatory Chamber) Information Rights Heard by video On 13 March 2025 Decision Given On: 27 May 2025 B e f o r e : JUDGE OF THE FIRST-TIER TRIBUNAL SWANEY TRIBUNAL MEMBER CHAFER TRIBUNAL MEMBER PEPPERELL ____________________ Between: DR DORIAN GERHOLD Appellant - and - INFORMATION COMMISSIONER First Respondent - and - MINISTRY OF HOUSING COMMUNITIES & LOCAL GOVERNMENT (MHCLG) Second Respondent ____________________ Representation: For the Appellant: In person For the First Respondent No appearance For the Second Respondent: Ms S Mitchell, of counsel ____________________ HTML VERSION OF DECISION ____________________ Crown Copyright © DECISION The appeals are dismissed. OPEN REASONS Background At the outset, we note that the public authority in these appeals was known as the Department for Levelling Up, Housing and Communities (DLUHC) until its functions were transferred to the Ministry of Housing, Communities and Local Government (MHCLG) pursuant to the Transfer of Functions (Secretary of State for Levelling Up, Housing and Communities) Order 2024, which came into effect on 1 November 2024. The documents refer to DLUHC, however, an application was made to change the name of the second respondent, which we granted (see below). Therefore, for ease of reference, we refer to the second respondent as MHCLG throughout. There is a somewhat lengthy background to these appeals involving several requests for information made by Dr Gerhold (the appellant). The requests for information all relate to the proposal to locate a national Holocaust Memorial and Learning Centre (HMLC) in Victoria Tower Gardens. The UK Holocaust Memorial Foundation (UKHMF) was set up in 2015 to provide independent advice to Ministers on a wide range of issues relating to the formulation and delivery of the policy relating to the HMLC including the design, implementation/construction and operation of the Memorial, and development and presentation of its learning content. Planning permission was initially granted for the HMLC to be built on Victoria Tower Gardens but was subsequently quashed by the High Court. Permission to appeal to the Court of Appeal was refused. In response, the Holocaust Memorial Bill was drafted to overcome any legal obstacle preventing the building of the HMLC. The Bill is currently at committee stage in the House of Lords. The appellant's interest in the requested information stems from his objection to the chosen location of the HMLC. He objects to the appropriation of a public park, not to the HMLC itself. The appellant made his first request for information on 19 December 2018. The application resulted in a complaint being made to the Information Commissioner (the Commissioner). The Commissioner issued a decision notice on 18 June 2020, which the appellant appealed. The appeal reference in respect of that appeal was EA/2020/0202V (appeal 0202). The appellant made his second request for information on 14 April 2020. That too resulted in a complaint to the Commissioner, who issued a decision notice on 12 October 2020, which the appellant appealed. The appeal reference in respect of the second appeal was EA/2020/0300V (appeal 0300). Both appeals were determined together by Judge Stephen Cragg KC. He dismissed the appeals in a decision promulgated on 1 February 2021. The appellant sought permission to appeal to the Upper Tribunal in respect of both appeals. Permission was refused by Upper Tribunal Judge Jacobs on 27 August 2021. The appellant made two requests for information which gave rise to these appeals on 3 May 2022 (the first request) and on 16 December 2022 (the second request). The first request is the subject of the appeal before us with the reference FT/EA/2023/0232 (appeal 0232) and the second request is the subject of the appeal before us with the reference FT/EA/2023/0318 (appeal 0318). The first request was made in the following terms: What allowance has been made in the estimated cost of the Holocaust Memorial and Learning Centre for optimism bias, in percentage terms, and in particular, what (a) category of project, (b) mitigation factor and (c) optimism bias factor were used. The Treasury's Green Book defines 'optimism bias' as the demonstrated systematic tendency for appraisers to be over-optimistic about key project parameters, including capital costs, operating costs, project duration and benefits delivery. The second request was made in the following terms: (1) The passages in the minutes of the UK Holocaust Memorial Foundation from 23 July 2015 to 13 July 2016 inclusive which relate to the choice of location for the UK Holocaust Memorial and the associated Learning Centre, including the following: (a) section 4 of the Minutes dated 23 July 2015 ('4. Property Sites: Progress to Date'); (b) a section on pages 1 - 2 of the Minutes dated 10 November 2015 ('Memorial and Learning Centre site search'); (c) section 1 of the Minutes dated 13 January 2016 ('1. National Memorial and Learning Centre site search'); (d) a section on pages 1 - 2 of the Minutes dated 13 April 2016 ('Learning Centre Site Selection'); and (e) a section on pages 1 - 2 of the Minutes dated 13 July 2016 ('UPDATE ON VICTORIA TOWER GARDENS'); together with any other relevant passages. (2) The passages in the minutes of the UK Holocaust Memorial Foundation from 23 July 2015 to 13 July 2016 inclusive which relate to changes in the specification of the features and facilities of the Learning Centre between the publication of the document entitled 'National Memorial and Learning Centre: Search for a central London site' in September 2015 and the launch of the design competition in September 2016. (3) The papers circulated to the board of the UK Holocaust Memorial Foundation for the agenda items which gave rise to the items in the board's minutes listed above as parts (1) and (2) of this request. MHCLG states that the information requested at (1)(a), (b), (c), (d), and (e) of the second request are repeat requests, which were all considered in appeal 0202. MHCLG's decisions The first request MHCLG responded to the first request on 27 May 2022. It confirmed that it held the information requested, but that it was not obliged to disclose it because it was already reasonably available, relying on section 21 of the Freedom of Information Act 2000 (FOIA). The appellant requested an internal review. MHCLG carried out a review and maintained its response in a letter dated 24 June 2022. It maintained that the information requested was already reasonably available to the appellant. The appellant made a complaint to the Commissioner who, having considered the complaint issued a decision notice on 11 January 2023 directing MHCLG to issue a new response to the request. MHCLG issued a new response on 14 February 2023. MHCLG once again confirmed that it held information within the scope of the appellant's request but relied on section 35(1)(a) of FOIA and stated that it was exempt from disclosure because the information related to the formulation and development of government policy, specifically the government's commitment to establish a Holocaust Memorial and Learning Centre. MHCLG acknowledged that exemption under this provision is subject to a public interest test. It accepted that it is in the public interest to make information held by public authorities available because it increases public participation in decision making and aids the transparency and accountability of government. However, it found that the public interest in disclosure was outweighed by the public interest in withholding the information. MHCLG stated that because the project was the subject of an outstanding application for planning consent, the question of site selection remained live policy, as did the information regarding optimism bias contained in the business case. MHCLG relied on the need for government to develop ideas and make decisions away from external interference and for Ministers to consider information and advice and reach objective, fully informed decisions without impediment and free from distraction that such information will be made public. The appellant once again requested an internal review. MHCLG's review is dated 9 March 2023 and maintains its response of 14 February 2023. The appellant made a complaint to the Commissioner on 6 March 2023, and it is the Commissioner's decision on 11 April 2023 which is the subject of appeal 0232. The second request MHCLG responded to the second request on 19 January 2023. They confirmed that they held the information requested, but declined to disclose it, relying on section 35(1)(a) of FOIA. MHCLG accepted that disclosure is in the public interest but maintained that this was outweighed by the public interest in withholding the information for the same reasons as the first request (see above). In addition, MHCLG relied on section 43(2) of FOIA for its decision that some of the requested information was exempt from disclosure because disclosing it would be likely to harm the commercial interests of third parties. MHCLG acknowledged that this exemption is subject to a public interest test and accepted that there is public interest in transparency and accountability of government. It found that the public interest in allowing the government to withhold information which, if disclosed, would reduce the ability of third parties to negotiate or compete in a commercial environment outweighed that in disclosing the information. It stated by way of example that revealing costings information can be detrimental to negotiations on contracts and procurements. The appellant requested an internal review, which was completed on 3 March 2023. MHCLG maintained its decision, stating that it had correctly applied sections 35(1) and 43(2) of FOIA. In addition, MHCLG stated that an additional exemption applied to some of the requested information. That was section 40(2) of FOIA on the basis that it is personal information, disclosure of which would breach the Data Protection Act 2018. The appellant made a complaint to the Commissioner on 13 March 2023, and it is the Commissioner's decision on 29 June 2023 which is the subject of appeal 0318. The Commissioner's decisions The first decision In his decision notice dated 11 April 2023, the Commissioner gave the following reasons for the first decision: (i) The requested information relates to the formulation of government policy. At the time of the request, the policy on delivering the various components of the HMLC was still under development and policy decisions will continue to be taken until the HMLC is constructed and open. (ii) With the passage of time, circumstances change, which may have a direct impact on the relevance of exemptions and on the outcome of the public interest test. (iii) Because the policy relating to the HMLC remains in the process of formulation, the rational for applying the exemption and the outcome of the public interest test remain the same as they did when the appellant's previous request was considered by the Commissioner and the First-tier Tribunal. (iv) The arguments and conclusions set out in the previously issued decision notices (FS50879089 and IC-46798-T0X1) and the Tribunal's decision (appeals 0202 and 0300) continue to apply. (v) For the reasons given by the MHCLG, the public interest in favour of disclosure is outweighed by the public interest in withholding the information. (vi) MHCLG correctly applied section 35(1)(a) of FOIA. The second decision In his decision notice dated 29 June 2023, the Commissioner gave the following reasons for the second decision: (i) The appellant requested the same information in two previous requests. The appellant's appeals against the Commissioner's decisions in relation to both of those previous requests were dismissed and he was refused permission to appeal by the Upper Tribunal. (ii) The appellant does not dispute the application of section 40(2) of FOIA, and it is not considered further. (iii) Section 35(1)(a) is a class-based exemption; this means that information simply has to relate to the formulation or development of government policy; and there is no requirement for disclosure to prejudice either of those policy processes. (iv) The term 'relates to' should be interpreted broadly. Information does not have to contain policy options, advice or decisions; any significant link between the information and the formulation or development of government policy is sufficient. (v) The exemption does not cover information relating solely to the application or implementation of established policy. (vi) It is accepted that the policy on delivering the various components of this major project is still under development and that final policy decisions relating to the delivery of the HMLC are subject to approval by Ministers. (vii) The withheld information relates to the choice of site for the HMLC, each site's advantages and disadvantages, practical considerations, costs and potential opposition. It is accepted that this clearly relates to the development of policy, i.e. where the HMLC will be built. (viii) There is general public interest in making information held by public authorities available, as it aids the transparency and accountability of government. (ix) There is specific public interest in how decisions about the HMLC are made. There has been public opposition to the location of the HMLC in Victoria Tower Gardens. There is public interest in understanding why Victoria Tower Gardens remains the preferred site notwithstanding that the High Court quashed the decision to grant planning permission for that location. (x) The Commissioner has followed the decision of the First-tier Tribunal which relates to the appellant's previous requests and accepts that the HMLC policy is still live. (xi) The balance of the public interest lies in maintaining the exemption. (xii) As HMCLG correctly applied section 35(1)(a), the application of section 43(2) has not been considered. The appellant's case The appellant's case is set out in his grounds of appeal and his skeleton argument dated 10 February 2025 (appeal 0232) and his grounds of appeal and submissions dated 22 October 2024 (appeal 0318). They can be summarised as set out below. In respect of the first decision: (i) It is accepted that section 35(1)(a) applies. (ii) The scope of the first request is disputed. The Commissioner has treated the request as if it relates to the whole business case for the HMLC. In fact, the scope of the request is as set out (in paragraph 10 above) and relates only to information in the business case concerning optimism bias. (iii) Non-exempt information, i.e. information in the business case, cannot become exempt information simply because it forms part of the same document as other exempt information. MHCLG would not need to disclose the whole business case in order to provide the requested information. (iv) The tribunal decision in appeals 0202 and 0300 does not apply because none of the information requested in the first request was requested previously. It is not sufficient for the Commissioner to simply say that they relate to the same policy area, i.e. the decision to establish the HMLC. (v) The relevant policy was not live at the time of MHCLG's decision because the assessment of optimism bias was not a policy decision. MHCLG and the Commissioner were wrong to treat the policy as being live until the HMLC is constructed and open. Policy formation is best seen as a series of decisions (EA/2006/0003; EA/2006/0040; EA/2018/0098). (vi) As well as the public interest identified by the Commissioner, there is also a specific public interest because the HMLC project is subject to major risks and because there has been a substantial increase in costs over time. Disclosure of the requested information would demonstrate whether confirmation bias was assessed properly, in accordance with the Green Book, or not. (vii) The public interest in withholding the information relied on is not appropriate. MHCLG and the Commissioner have failed to identify any way in which disclosure of the requested information might cause harm by removing a safe space for decision-making or cause a chilling effect. Previous tribunals have rejected the submission that a chilling effect would cause civil servants to be less candid. In respect of the first request, a new location for the HMLC would require a new assessment of optimism bias, but no wider discussion of policy. (viii) The public interest balance was incorrectly assessed, and the balance lies in favour of disclosure. (ix) That section 43(2) applies has not been established because no reasons as to why disclosure of the requested information, which is the information relating to optimism bias and not the entire business case, have been given. The appellant seeks disclosure of the requested information. In respect of the second decision, the appellant's case is: (i) It is accepted that the request is largely the same as the two requests in 2018 and 2020. Information not previously requested is as set out at (2) and (3) in paragraph 13 above. (ii) It is accepted that section 35(1)(a) of FOIA applies. (iii) The application of section 43(2) to one of the documents appears reasonable and is not disputed. (iv) The application of section 40(2) to redact personal information is not disputed. (v) The issue in this appeal is whether changing circumstances and new evidence since 2021 (when the previous appeals were decided) have shifted the balance of the public interest towards disclosure. Four main points are relied on to demonstrate that they have: (a) The tribunal's decision in 2021 was considered on the basis that alternative sites considered in 2015/16 may have to be reconsidered; however, this is no longer plausible. (b) The decision of the location of the HMLC was not live policy at the date of decision and is unlikely to become so. (c) New evidence shows that the decisions of 2016 were based on limited and inadequate information. (d) New evidence shows that non-disclosure has allowed MHCLG to provide misleading information. (vi) There is both general public interest (transparency and accountability) and specific public interest (relating to the specific details of the HMLC, its location, the expenditure of public money) in disclosure. Some of the specific public interest is new since the tribunal's decision in 2021. (vii) Prejudice to decision-making as a result of disclosure must be proved rather than assumed and the likelihood of prejudice in this case is low because the decision about the location of the HMLC is not live policy; further discussion about location would be a new policy rather than the existing decision becoming live policy again; none of the previously discussed sites are likely to be available now and even if they were, it is hard to see how disclosing the requested information could prejudice further decision making given that comprehensive reasons have already been given for rejecting those sites. (viii) The case for a 'chilling effect' is generic, which pursuant to the Commissioner's guidance, is unlikely to be persuasive, especially if the information is not recent. (ix) FOIA is about information and not documents. In certain circumstances it is appropriate for a line by line approach to the requested information to be taken to determine which individual paragraphs or sentences of a document should be disclosed or redacted. The appellant seeks disclosure of the requested information subject to necessary redactions. MHCLG's case This is set out in two separate skeleton arguments, one for each of the two appeals. The hearing The hearing consisted of an OPEN and a CLOSED session. It was conducted by video and none of the parties objected to that as a suitable method of hearing. We considered the following documents together with the oral evidence and submissions in reaching our decision: (a) OPEN bundle for appeal 0232 (including the appellant's skeleton argument). (b) OPEN bundle for appeal 0318 (including the appellant's submissions). (c) CLOSED bundle for appeal 0232. (d) CLOSED bundle for appeal 0318. (e) Bundle of authorities. (f) Skeleton argument on behalf of MHCLG for appeal 0232. (g) Skeleton argument on behalf of MHCLG for appeal 0318. Preliminary issues As a preliminary matter we dealt with MHCLG's applications made on 7 March 2025: (i) To change the name of the appeals to Gerhold v IC and MHCLG pursuant to the change of name of the public authority referenced in paragraph 4 above. (ii) To rely on amended skeleton arguments in each of the two appeals. (iii) To admit amended OPEN bundles in each of the appeals. These applications were not dealt with in advance of the hearing. We admit the amended open bundles, subject to what we say below about some of the documents relied on by the appellant, and the amended skeleton arguments. We grant the application to change the name of the second respondent. Also in advance of the hearing, MHCLG made an application to exclude the documents relied on by the appellant which are contained in section G of the OPEN bundle in 0318. Those documents are: (i) A response to a request for information made by the appellant pursuant to FOIA dated 7 August 2020 from the Cabinet Office. MHCLG objected to the admission of this document on the basis that the document is irrelevant and outside the scope of this appeal. Ms Mitchell also noted that the Cabinet Office is not a party to these proceedings and that she had no instructions in relation to the content of the document. We do not admit this document on the basis that it is not relevant to the issues in this appeal. (ii) A letter from Simon Hoare MP to Sir Edward Leigh MP dated 18 December 2023 relating to a Written Parliamentary Question asked on 29 April 2019 regarding the date on which the government received the recommendation that the HMLC be located in Victoria Tower Gardens. MHCLG objected to the admission of this document on the basis that it is the third letter in a chain of correspondence, that the correspondence is irrelevant, and that it does not paint the full picture because it talks about questions and answers in Parliament of which we do not have the full text. Ms Mitchell submitted that the correspondence is out of context in relation to this appeal and is not helpful. Two of the letters in the chain of correspondence are contained in the OPEN bundle in 0318 at pages D141 to D142. In fact, the text of the questions asked, and the answers given is set out at page D143 of the OPEN bundle and we reject Ms Mitchell's submission in that regard. There was no explanation as to why this document was not provided in accordance with directions. Notwithstanding that, we admit the document and it is a matter for us to determine what weight, if any, to give to it in our consideration of the issue in the appeal. (iii) An extract from the speech of counsel for the Promoter to the House of Lords Holocaust Memorial Bill Committee dated 16 October 2024. MHCLG objected to the admission of this document on the basis that it post dates the decisions under appeal. Although this is the case, we find that it relates to information in existence before the decisions under appeal were made and it is therefore admissible. We admit the document and it is a matter for us to determine what weight, if any to give to it in our consideration of the issue in the appeal. At the conclusion of the CLOSED session, Ms Mitchell drafted a gist of the CLOSED evidence, for which we are grateful. The panel agreed the content of the gist and it was provided to the appellant: Counsel for MHCLG outlined the content of both of the closed bundles, giving examples of areas of particular concern. Counsel outlined why this demonstrated the need for a safe space and why the commercial interests of landowners and CBRE (in respect of 0318) and the government's negotiating position with contractors (in respect of 0232) were at risk. Mr Downie gave evidence to answer specific questions asked by the Tribunal. Mr Downie gave evidence relating to the property sub-group of the Foundation, the features and facilities of the HMLC and where/how optimism bias has been treated in the business case. The law Section 2 of FOIA makes provision for the effect of exemptions contained in Part II of the Act. Section 35 of FOIA provides where relevant: (1) Information held by a government department or by the Welsh Assembly Government is exempt information if it relates to— (a) the formulation or development of government policy, (4) 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 43 of FOIA provides: 43. Commercial interests. (1) Information is exempt information if it constitutes a trade secret. (2) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it). (3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice the interests mentioned in subsection (2). Findings and reasons At the outset of the hearing, we clarified with the appellant whether he accepted that section 35(1)(a) applied. He confirmed that he accepted that section 35(1)(a) applies and that the only issue in the appeals was whether the public interest test was correctly applied. In relation to his first request, the appellant does not accept that the requested information would prejudice any commercial interests. This is because he does not seek the whole business case, simply the information contained within it relating to optimism bias. The appellant confirms that notwithstanding that he has not seen the CLOSED evidence, he accepts that section 43(2) may apply in respect of his second request and simply asks whether disclosure could be made with redactions where appropriate. We have found that all of the information requested is exempt pursuant to section 35(1)(a) for the reasons set out below and for those reasons it is not necessary for us to address the question of disclosure with redactions. The appellant does not dispute the exemption from disclosure of personal information pursuant to section 40(2) of FOIA. There is therefore a single issue in respect of each of these appeals: (i) Has the public interest test been correctly applied? The arguments made by both sides in each appeal are very similar and we therefore deal with them together here. Our findings relate to both appeals unless we specifically indicate otherwise. In respect of his first request, the appellant's position is that he requested only the information contained within the business case relating to optimism bias and not the entire business case. He contends that MHCLG has erroneously considered his request on the basis that he is seeking disclosure of the entire document. He contends that had MHCLG considered his request properly, it could have disclosed the requested information by applying redactions as appropriate. The appellant raises a valid argument in this respect; however, based on the evidence heard during the CLOSED session, we find that it is not possible to extract the information relating to optimism bias contained in the business case, as to do so would render it meaningless. It is not possible to provide more detailed reasons in this OPEN decision and they are contained in our CLOSED decision. It is not disputed that the requested information relates to the formulation or development of government policy, and we accept that it is for the reasons set out at paragraph 12(1) of MHCLG's skeleton argument (0232). The appellant's primary contention is that the requested information does not relate to 'live' government policy and there is therefore no public interest in withholding it. HMCLG contends that it remains part of live policy. This is because the requested information contains material that underpins the plans relating to 'location and specification of the features and facilities of the Learning Centre' as well as other crucial aspects of the development. HMCLG relies on CLOSED evidence to demonstrate how early in the process of delivery the HMLC is and submits that decisions relating to the delivery and site selection for the HMLC will continue to be live policy until all necessary consents for the selected site have been obtained and construction is underway. The reason for this is that if consent is refused, the proposed location and the business case or parts of it may need revising. MHCLG relies on what the Upper Tribunal said on this point in the appellant's earlier appeals 0202 and 0300. The appellant disputes the relevance of the Upper Tribunal's decision in those appeals. We note that the Upper Tribunal's decision is a decision refusing permission to appeal and as such is not binding on us, albeit that it may carry some persuasive weight. What is more important is that the decision of the First-tier Tribunal in relation to appeals 0202 and 0300 was upheld. As with a decision on permission to appeal of the Upper Tribunal, the First-tier Tribunal's decision is not binding on us. However, as permission to appeal was refused, that decision was not successfully challenged. In those appeals the appellant made a request for copies of the UK Holocaust Memorial Foundation minutes since its creation. His request was made on 19 December 2018. The appellant's second request (0318) is more specific, but the period to which his request of 19 December 2019 relates includes the period to which his second request in the appeal before us relates. The appellant's second request in the appeal before us is therefore materially the same as the request made on 19 December 2018. For that reason, we find that the decisions of the First-Tier Tribunal and the Upper Tribunal are relevant and carry persuasive weight. Notwithstanding that, even if we had found that those previous decisions were not relevant, we would accept that the location of the HMLC and the business case remain part of live policy until such time as consent has been granted and construction is underway. The appellant's first request was made on 3 May 2022 and the second was made on 16 December 2022. The date of the relevant decision in respect of the first request is 14 February 2023 and the date of the relevant decision in respect of the second request is 19 January 2023. The appellant's requests and HMCLG's decisions all came after the decision granting planning consent had been quashed by the High Court. The position at the date of both decisions, which are the relevant dates for the purposes of these appeals, is that the HMLC did not have planning consent. We do not accept the appellant's contention that consent is a foregone conclusion. Even if legislation is passed which deals with the reason consent previously granted was quashed, it remains the case that the application falls to be considered and determined on the basis of circumstances as at the date on which a new decision is made. Notwithstanding that the application may remain essentially the same, there may be other considerations which arise as a result of the lapse of time since it was prepared, and which may affect the decision as to whether or not consent is granted. Therefore, until such time as consent is granted and construction is underway, the location of the HMLC and other aspects of the policy relating to its delivery and, as a consequence, the business case, may need to be reviewed. We find that the policy was live at the date of both decisions and, for the sake of completeness, that it remains live at the date of hearing. We reject the appellant's argument that the policy should be seen as a series of distinct decisions, one of which is the site for the HMLC. We find that the site is inextricably linked with other aspects of the policy, for example the design of the space, the nature of the content offered by the learning centre, and other important matters such as costs and that a change of site will result in those other aspects being revisited, such that the choice of site must be viewed as one part of the whole policy and not a separate, distinct decision. HMCLG does not dispute that there is public interest in the disclosure, as it will increase public participation in decision making and aids the transparency and accountability of government. It makes a distinction between the appellant's own personal interest in the site of the HMLC and the public interest in the site and the decision making process in relation to the site. We accept that there is a distinction between the personal interest of an individual and wider general public interest in information. In the present case we find that there is wider general public interest in disclosure of the requested information. The appellant contends that the public interest in disclosure carries significant weight because of his assertion that HMCLG has provided misleading information to Parliament. He contends that this amounts to a change of circumstances which warrants a departure from the findings about where the public interest lies in appeals 0202 and 0300. We have taken into account the appellant's submissions on this point, but we do not accept that they provide a basis on which we should depart from the previous decisions. The appellant relies on the release of some information in response to Parliamentary questions. The questions asked in Parliament were not the same as the requests for information made by the appellant. Moreover, at the time the answers to the Parliamentary questions were given, planning consent had been granted. The position has now changed, and as we have found above, is the same as it was at the time appeals 0202 and 0300 were determined. The appellant relies specifically on the answers to Parliamentary questions for his submission that misleading information was provided. The appellant relied on the response to a question asked on 13 September 2021 to support this submission. The question was for the wording of the recommendation of the UKHMF on 13 January 2016 that the HMLC be located in Victoria Tower Gardens. The response was that the UKHMF's recommendation on 13 January 2016 was 'in principle to siting a memorial in the Gardens (without prejudice to the site of a learning centre).' The appellant asserts that the answers to two previous questions were incorrect and misleading. The appellant cross-examined Mr Downie about this. Mr Downie denied that the information provided was incorrect or misleading and stated that UKHMF had made it clear that the memorial and the learning centre should be co-located, that it had determined that Victoria Tower Gardens was the right site, but that if it was not possible to build the learning centre there, the memorial should nevertheless be in Victoria Tower Gardens. This is what was meant by the phrase 'without prejudice'. There is nothing in the evidence before us to suggest that this is not in fact the case and we accept that it is. The appellant submitted that disclosure was necessary to demonstrate who was in fact responsible for making the decision as to the location of the HMLC. We accept HMCLG's submissions on this point as set out in the skeleton argument (0318). In addition, we heard evidence in the CLOSED session, to which we cannot refer in this OPEN decision, but which supports HMCLG's submissions. That evidence relates to a property sub-group of the UKHMF as noted in the gist provided to the appellant. Also relevant to the appellant's submission in this regard is his belief that the UKHMF was not responsible for making the decision about the final site of the HMLC and that it was influenced by the Prime Minister. HMCLG asserts that the appellant misunderstands the role of UKHMF and submits that it was responsible for making a recommendation as to a suitable site, but it was for the government to take that information and seek planning consent. It was for the planning inspector to recommend that planning consent be granted, and for the relevant Minister of State to grant planning permission. We find that the evidence before us supports this, and we accept HMCLG's submissions on this point. The appellant asserts that the requested information will help demonstrate that the decision as to the proposed site for the HMLC was based on rushed decision making and/or limited information. HMCLG submits that this is to misunderstand the reasons why planning consent was quashed by the High Court. Moreover, it is during the planning process that matters such as environmental impacts are considered, not during consideration of possible sites. We accept that this is the case. We find that disclosure of the requested information will add little to the public's understanding of the choice of site for the HMLC. We accept that there was information available in the public domain at the time of the requests, as set out in paragraph 8(i) to (vi) of Ms Mitchell's skeleton argument (0318). HMCLG submits that the public interest in withholding the requested information outweighs the public interest for two important reasons. The first is that government ministers and officials are entitled to time and space to develop policy so that they may conduct a full and frank discussion of the issues at hand, in the knowledge that their discussions will remain confidential during that period and will not be subject to premature disclosure. Ms Mitchell submitted that this is particularly important given that the HMLC may well give rise to strong views among the public, particularly in the light of rising antisemitism. The second reason is the so called 'chilling effect' of disclosure. In other words, there is a real risk that disclosure could inhibit future participation in and/or free and frank discussions by members of the UKHMF, damaging the quality of its advice. UKHMF is comprised of individuals who are not civil servants or former civil servants. They participate on a voluntary basis and on the expectation of confidentiality. We accept that this is the case. The members of the UKHMF come from a variety of backgrounds and we accept that disclosure of the requested information may well make them reluctant to contribute to the work of the UKHMF in the future if premature disclosure exposes them to a real risk of public criticism. For the reasons set out above, we find that the public interest in withholding the requested information outweighs the public interest in disclosure in respect of both requests. In reaching this conclusion we have given particular weight to the following: (i) The decisions of the First-tier Tribunal and the Upper Tribunal in appeals 0202 and 0300 because there has been no material change of circumstances since they were made. (ii) Our finding that the policy remains live policy and unless and until planning consent is granted and construction begins, the policy will remain subject to revision and change. (iii) Our finding that the business case cannot be redacted because to do so would render the requested information meaningless for reasons set out in our CLOSED decision. (iv) Our findings rejecting the appellant's assertions about misleading information, the need for disclosure to demonstrate who was responsible for deciding on the site for the HMLC (including reasons given in our CLOSED decision), and to provide clarity about the process of selecting the site. (v) The strong public interest in ensuring that those responsible for developing and formulating government policy are able to so in the knowledge that their work will remain confidential and not subject to premature disclosure. (vi) The public interest, when taken together with the other factors above, in ensuring that future participation and free and frank discussions are not inhibited, and future advice is not damaged. Both appeals are therefore dismissed. Section 43(2) of FOIA Notwithstanding that we have dismissed the appeals, we have nevertheless considered the application of section 43(2). This is because although the appellant accepted that it appeared reasonable in respect of the second decision, this was not a formal concession. The appellant also argued in his submissions in respect of the first decision that he does not accept that the business case or the requested information contained within it would be likely to prejudice any commercial interests and so does not accept the application of section 43(2) in relation to this decision. HMCLG did not rely on section 43(2) in relation to the appellant's first request and it is not considered in the Commissioner's decision, which is the decision under appeal. The appellant raised section 43(2) for the first time in his written submissions. We find that section 43(2) is not in issue in the decision under appeal and accordingly we have not considered it any further. It is not material in any event, given our decision above. The information to which HMCLG contends section 43(2) applies is contained in the CLOSED bundle. It is information contained in the CBRE summary paper Site Search: National Memorial for the Holocaust and Learning Centre, dated 11 January 2016 (the CBRE report). HMCLG accepts that not all of the CBRE report is exempt from disclosure pursuant to section 43(2) of FOIA. The principles relating to the engagement of this exemption can be summarised as follows: (i) HMCLG is required to demonstrate that there is a causal link between the potential disclosure and the prejudice relied on. (ii) The risk of the prejudice occurring must be real and significant but need not be established that it is more probable than not and HMCLG is not required to show that the prejudice will occur. (iii) There is no requirement that the commercial interests should be serious or substantial. (iv) There is no requirement that the protection of such interests should have any public interest element or justification. By way of background, CBRE is a company which offers real estate advice. CBRE advised HMCLG that disclosing the report would create a significant risk of prejudicing the commercial interests of owners of the sites discussed in its report. This is because the report contains information obtained from CBRE's market intelligence and which related to properties that were not being openly marketed. Importantly, not all property owners knew that their sites were being considered. CBRE advised HMCLG that disclosing the report could therefore create significant market speculation as to why those sites were included in the process, which could damage the commercial interests of the site owners. A commercial interest relates to a person's ability to participate competitively in a commercial activity. The phrase 'commercial interests' can cover a range of activities including the existing business or a person or organisation, a proposed venture, a tendering process, and the assets of a commercial enterprise. The properties in question are clearly the assets of those commercial enterprises. We find that the ownership of the properties in question falls within the term 'commercial interests'. The prejudice asserted is the market speculation about the properties included in the CBRE report. Given the nature of the commercial interest we have identified and the nature of the prejudice, we find that there is a causal link between the potential disclosure and the prejudice relied on. We heard CLOSED evidence on the nature of the prejudice relied on. We accept that evidence. We are satisfied that the disclosure of the withheld information would create a real and significant risk of the prejudice occurring. We therefore move on to consider where the public interest lies. Commercial interests are often inherently private in nature. We note that the Commissioner did not address the public interest test in the decision notice (having found that the exemption did not apply), and neither is it referred to in the Commissioner's response to the appeal. HMCLG deals with it only briefly to submit that the public interest in withholding the information outweighs that in disclosure without expanding on that submission. We accept that transparency and accountability about the process of choosing a site for the HMLC is in the public interest. No other public interest was identified by the appellant. Revealing information which is capable of causing market speculation could be detrimental to the procurement process of a suitable site. There is a public interest in public authorities not being disadvantaged by their FOIA obligations when in commercial negotiations with the private sector. Taking all the relevant information and evidence before us into account, we find that the public interest favours non-disclosure given (a) the real and substantial risk to the commercial interests as identified above; (b) the lack of a pressing need for disclosure; and (c) the absence of other reasons beyond general transparency and accountability reasons in favour of disclosure. We find that the exemption contained in section 43(2) of FOIA was correctly applied and that the withheld information contained within the CBRE report is exempt from disclosure. Summary We find that s35(1)(a) was correctly applied and that the public interest in withholding the requested information outweighs the public interest in disclosure in relation to both requests. We find that section 43(2) was correctly applied in respect of the second request and that the public interest in withholding the requested information outweighs the public interest in disclosure. Both appeals are dismissed. Signed J K Swaney Judge J K Swaney Judge of the First-tier Tribunal Date 23 April 2025 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII