Matthew Gewan v The Information Commissioner & Anor

1. On 2 December 2023 the Appellant sought information from the Cabinet Office: “*FOI Request: Submission leading to requirement of departments to introduce sixty per cent minimum weekly office attendance. You are likely to be aware of numerous media reports about the Cabinet Office requiring departments to introduce a policy of minimum staff attendance into the office of 60 per cent. Could you tell me whether the Cabinet Office has in its possession a report/submission with this requirement as a recommendation? If so and now that the policy decision appears to have been made, would you please disclose the report/submission to me?”

2. On 1 February 2024 the Cabinet Office replied confirming that information was held and refusing to disclose it relying on the exemptions in section 36(2)(b)(i) and (ii) and 36(2)(c) of the Freedom of Information Act (FOIA). The Cabinet Office relied on the opinion of a qualified person (in this case a government minister) that disclosure would inhibit the free and frank of provision of advice, the free and frank exchange of views for the purposes of deliberation or prejudice the effective conduct of public affairs. In weighing the interest in transparency and accountability for decisions about the management of the government’s workforce against the need for rigorous appraisal of the possible policy options and their consequences the Minister had concluded that the public interest lay in withholding the information.

3. The Appellant complained to the IC who investigated and on 29 November 2024 the IC issued decision notice IC-302430-Q0Q4 upholding the position of the Cabinet Office with respect to s36 (2)(b) and in the light of that finding declining to consider 36(2)(c).

4. In coming to this conclusion the IC argued that in considering whether the opinion is reasonable: “the Commissioner takes the approach that if the opinion is in accordance with reason and not irrational or absurd – in short, if it is an opinion that a reasonable person could hold – then it is reasonable. This is not the same as saying that it is the only reasonable opinion that could be held the matter. The qualified person’s opinion is not rendered unreasonable simply because other people may have come to a different (and equally reasonable) conclusion. It is not reasonable if it is an opinion that no reasonable person in the qualified person’s position could hold. Nor does the qualified person’s opinion have to be the most reasonable opinion that could be held; it only has to be a reasonable opinion.”

5. In considering the application of this approach to the request under consideration in its organisational context: “We consider that officials must be able to provide advice and exchange views regarding sensitive information throughout the process of developing major operational policy, in circumstances where they can feel assured that such advice, views and comments will not be prematurely disclosed into the public domain. It was also vital for officials and Ministers to have the benefit of this space during the drafting of the policies and we consider that those directing future operational change must also have its benefit to ensure that civil service operations in the future are not undermined. Those involved in the policy development and the drafting of its final proposals must be able to express themselves openly, honestly and completely at all times when providing advice or giving their views. They must have the freedom to explore options which may be considered radical or unpopular without concern that those exploratory views will be disclosed prematurely. At the time of the request, the information was particularly recent (being only a few months old), making it particularly sensitive. Indeed, the information remains sensitive for the ongoing management of operations and estates.”

6. In challenging the finding of the IC the Appellant raised two substantive points; the first was that the qualified person’s opinion was not reasonable and the second that the balance of public interest lay in disclosure. He argued that the Minister had failed to state that why she considered that disclosure would inhibit the free and frank exchanges of views as part of the process of deliberation and that there was an evidential burden on the part of the Minister to show a causal relationship between the disclosure and the envisaged harm.

7. The submission to the Minister who acted as qualified person argued that the withheld information included candid and rigorous discussion of sensitive information on improving office attendance by civil servants and that “Sharing the submissions risks undermining the ability of officials to discuss options, raise concerns and make recommendations freely and frankly when considering Civil Service employee and estate operating mechanisms”

8. In applying for an open order under rule 14(6) to withhold the material The Cabinet Office provided a description of the withheld material and also in the open witness statement of Matthew Davies. Judge Buckley concluded that no formal gist was required.

9. Matthew Davies, Deputy Director of the Civil Service Pay, Policy and Pensions Team in evidence discussed the significance of the withheld information a Ministerial submission “Improving Office Working Across the Civil Service” dated 26 September 2023. He described the process of identifying material within the scope of the request and the policy background and public announcements by Ministers of the progress of unwinding the various changes in attendance requirements for civil servants which had arisen as a result of the COVID pandemic. He noted that “Heads of Department announced the 60% office attendance expectation they had agreed on 16 November 2023, to staff in their departments” The various departments were at different stages in discussion with trades unions and the then Minister for the Civil Service had at the start of January 2024 (before the refusal of the request) published a policy document the Civil Service People Plan 2024-2027 stating: “We have all had to work differently over the last few years. Many have been in the workplace all of that time and others have worked flexibly. The Civil Service, like most organisations, is continuing to explore and take stock of what the most effective place is for us to be working”. “As we look across a range of other employers in all sectors, we are seeing a trend of workplaces reviewing their balance of office working to drive better benefits for both the employer and employees. A minimum balance of 60% for most in the office will help us retain both the benefits of office working and flexibility. We continue to support and recognise that some colleagues will have specific needs and adjustments.”

10. In his witness statement he explained: “I believe that disclosure of the information at the time of the request would have distracted officials and Ministers from the necessary co-ordination around both announcements and implementation plans and clarity in communications. It was very important that departments were able to plan the timing and communication of the announcement for their own departments and also to engage with their departmental trade unions. Departmental control over the timing and content were very important at the time the request was received. The need to co-ordinate this to ensure that staff were finding out through the proper channels and that senior officials and Ministers could rely upon that happening was an important part of the engagement approach. Losing control of the messaging and planned cascade would have put the Civil Service as a whole in a very reactive position. Perhaps of most importance is the need for the timing of departmental announcements to be decided by them using their judgement and prepare for additional messaging. Getting this right was very important for employee engagement.” Consideration

11. The information request was made at a time of considerable public and Civil Service discussion of the issue of working from home for the civil service. There had been well publicised interventions by a Minister (Jacob Rees-Mogg) commenting on the absence of civil servants from their desks in government departments. The Government had made a policy decision and each department was working through a process with its own staff to implement it. It was a live issue in each department affecting the working arrangements of many people. The substantive content of the decision and the reasons for it were well known.

12. The Qualified Person submission addressed the question of the need for frank exploration of the issues raised by the submission as the operational policy for each department was worked out. There is a clear need to ensure that those involved in policy formation can feel assured that such advice, views and comments will not be prematurely disclosed into the public domain. The Qualified Person’s opinion was clearly a reasonable one in the circumstances of implementing a significant change.

13. The issues were well known and publicly debated. The release of the requested report/submission would therefore not add significantly to public knowledge and understanding of the decision then being implemented across the civil service; accordingly there was at the time of the refusal little public interest in disclosure. There has been no need for a closed section of the decision.

14. The appeal is dismissed. SignedDate: Hughes14 October 2025