Edward Williams v The Information Commissioner & Anor

Introduction

1. The Foreign and Commonwealth Development Office is referred to as the FCDO in this decision.

2. This is an appeal against the Commissioner’s decision notice IC-284055-C1J6 of 15 July 2024 which held that: a. Section 27 of the Freedom of Information Act 2000 (FOIA) was engaged in relation to some of the requested information and that the public interest favoured maintaining the exemption. b. The FCDO was not entitled to refuse to confirm or deny whether it held any further information falling within the scope of the request pursuant to sections 23(5) and 24(2). c. FCDO had breached section 17(3) by failing to complete its public interest assessments within a reasonable time.

3. This appeal relates to the Commissioner’s decision on section 27(1) and the FCDO now relies additionally on section 36(2)(c) and section 40(2).

4. Some factual information within the scope of the request was disclosed to Mr Williams on 14 August 2024.

5. There is a closed annex to this decision. It is necessary to withhold the annex from the appellant. To do otherwise would defeat the purpose of the appeal because it reveals the content of the information we have ordered can be withheld under section

27. The request

6. Mr Williams made a request to the FCDO on 17 July 2024 for: “…the briefing notes prepared for prime minister David Cameron for his trip to China in December 2013, including but not limited to his meeting with Xi Jinping, President of the People’s Republic of China.” The response

7. The FCDO responded on 16 August 2023. The FCDO confirmed that it held the information and needed additional time to consider the public interest test under section 27 (international relations).

8. The FCDO gave a substantive response on 10 November 2023, withholding some information under sections 27(1)(a), (c) and (d), 35(1)(a) (formulation and development of government policy), 43(2) (commercial interests) and section 40(2) (personal data). The FCDO refused to confirm or deny whether it held further information under sections 23(5) (security bodies) and 24(2) (national security). It upheld its position on internal review.

9. During the course of the investigation the FCDO agreed to the disclosure of some of the requested information to Mr Williams.

10. During the course of these proceedings the FCDO relied additionally on section 36(2)(i) and (c). It no longer relies on section 35 or

43. The decision notice

11. In a decision notice dated 15 July 2024 the Commissioner decided that the information the FCDO confirmed that it held was exempt under section 27(1)(a) FOIA (save for the information that the FCDO had agreed could be disclosed).

12. The Commissioner held that the FCDO was not entitled to rely on sections 23(5) and 24(2) to refuse to confirm or deny whether it held any further information and breached section 17(3) by failing to complete its public interest assessments in a reasonable time. These findings are not appealed.

13. In relation to section 27(1)(a) the Commissioner accepted that the type of harm the FCDO believed would be likely to occur related to the interests protected in the exemption. Considering the nature of the document, an internal confidential briefing for the Prime Minister, and its content, the Commissioner’s view was that it was plausible to argue that disclosure would be likely to have a negative impact on the UK’s relations with China. He did not consider that the passage of time since the information was created impacts on this finding. He concluded that the information remained sensitive and that disclosure posed a genuine and real risk to UK-Chinese relations. He accepted the FCDO’s broader point that disclosure potentially risked having an impact on the FCDO’s relations with other states as it could raise concerns about the UK being a trusted and confidential international partner. He concluded that section 27(10(a) was engaged.

14. In relation to the public interest test, the Commissioner concluded that there was clear public interest in awareness of how the UK government interacts with other states, particularly in the context of high profile engagements. He said that disclosure would provide an insight into UK-China relations at the time and into how briefings for such visits are undertaken. However he was satisfied that there was a serious and credible risk to the UK’s relations with China, which would be firmly against the public interest, and that there was additional weight given the potential impact of disclosure on the UK’s international relations more broadly. He concluded that the public interest favoured maintaining the exemption. Notice of appeal

15. The grounds of appeal are, in summary, that section 27(1)(a) is not engaged and the public interest favours disclosure. The Commissioner’s response

16. The Commissioner relied on his decision notice. The FCDO’s response Section 27(1)(a), (c) and (d) FOIA

17. The FCDO argues that: a. Disclosure would be likely to prejudice relations between the UK and China in that it risks embarrassing the Chinese Government, exposing the UK’s thinking on sensitive matters and/or causing the Chinese Government concern that the UK is unable to conduct international relations in an orderly manner. This would cause China to reconsider future high-level engagement and damage the UK’s ability to conduct and develop its international relations with China in an appropriate way. b. Disclosure would be likely to prejudice the interests of the UK abroad (section 27(1)(c) FOIA). Disclosure would be likely to lead other countries to re-consider the UK’s ability to properly conduct its foreign relationships and, in particular, the risk that the UK would release briefings provided by officials in advance of high-level visits to them, risking embarrassment. This risks foreign governments being reluctant to engage as fully with the UK as they might otherwise do. Disclosure of the contested material would also risk exposing the FCDO’s thinking on particular points. Both these outcomes would be likely to prejudice the interests of the UK abroad. c. Disclosure would be likely to cause prejudice to the promotion or protection by the United Kingdom of its interests abroad. One of the reasons for the Prime Minister’s visit was to promote the UK’s interests in China. Disclosure of the details of the UK’s thinking on these points would be likely to damage the UK’s ability to promote those interests. Further, were the FCDO to lose its reputation for confidentiality, it is likely that a number of international partners, both public and private, would be reluctant to work with the UK. This would damage the UK’s ability to promote its strategic interests abroad. d. The public interest weighs heavily against disclosure in this case. The FCDO recognises the public interest in disclosure and transparency (and notes that some parts of the Briefing have now been disclosed). That is decisively outweighed by the fundamental importance of maintaining the UK’s relationship with China and ensuring that the UK’s ability to promote its interests abroad is not prejudiced. Section 36 FOIA

18. Further or in the alternative the FCDO relies on section 36: a. Minister West, the Qualified Person, has given her view that, given its sensitivity, disclosure of the withheld information at the date of the decision would be likely to inhibit the free and frank provision of advice and/or would otherwise be likely to prejudice the effective conduct of public affairs. The FCDO submits that the Qualified Person’s opinion is reasonable and legally robust. b. The FCDO recognises the public interest in transparency and, in particular, in providing the public with a view of how senior ministers are briefed ahead of Ministerial visits. The FCDO submits that this does not outweigh the profound public interest in ensuring that officials are able to provide full and frank briefings to Ministers in advance of foreign visits. The consequences of their not feeling free to do so risks the most serious damage to the UK’s ability to conduct its foreign relations. Section 40(2) FOIA

19. The FCDO maintains that a small number of names and details associated with those names are personal information. No consent has been given and the FCDO submits that the individuals concerned have a legitimate expectation that such personal information would not be disclosed. The appellant’s reply

20. The appellant’s reply was that he is interested in important issues of human rights in China, particularly, the Uyghurs. He submitted that the briefing notes were not provided in confidence and he does not admit that any exemptions apply. He submitted that genocide is the ‘trump card’ in the public interest balance test. Legal framework Section 27

21. Section 27(1) provides: “(1) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice– (a) relations between the United Kingdom and any other State, (b) relations between the United Kingdom and any international organisation or international court, (c) the interests of the United Kingdom abroad, or (d) the promotion or protection by the United Kingdom of its interests abroad. “

22. The exemption is prejudice based. ‘Would or would be likely to’ means that the prejudice is more probable than not or that there is a real and significant risk of prejudice. The public authority must show that there is some causative link between the potential disclosure and the prejudice and that the prejudice is real, actual or of substance. The harm must relate to the interests protected by the exemption.

23. Section 27 is not an absolute exemption and therefore under s 27(1) the tribunal must consider whether, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

24. We agree with and adopt the following statement by a previous First-tier Tribunal in Campaign Against the Arms Trade v IC and MOD (EA/2007/0040) at paragraph 81: “… we would make clear that in our judgment prejudice can be real and of substance if it makes relations more difficult or calls for particular diplomatic response to contain or limit damage which would not otherwise have been necessary. We do not consider that prejudice necessarily requires a quantifiable demonstration of actual harm to the relevant interests in terms of quantifiable loss or damage. For example, in our view there would or could be prejudice to the interests of the UK abroad or the promotion of those interests if the consequence of disclosure was to expose those interests to the risk of an adverse reaction from the KSA or to make them vulnerable to such a reaction, notwithstanding that the precise reaction of the KSA would not be predictable either as a matter of probability or certainty. The prejudice would lie in the exposure and vulnerability to that risk.” Section 36

25. Section 36 provides in material part that: “36 Prejudice to effective conduct of public affairs (1) This section applies to— (a) information which is held by a government department … and is not exempt information by virtue of section 35, and … (2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act… (b) would, or would be likely to, inhibit— (i) the free and frank provision of advice, or (ii) the free and frank exchange of views for the purposes of deliberation, or (c) would otherwise prejudice, or would be likely to prejudice, the effective conduct of public affairs.”

26. It is for the tribunal to assess whether the qualified person’s (QP’s) opinion that any of the listed prejudices/inhibitions would or would be likely to occur is reasonable, but that opinion ought to be afforded a measure of respect: Information Commissioner v Malnick [2018] UKUT 72 (AAC), [2018] AACR 29 at paragraphs 28-29 and

47.

27. In relation to ‘chilling effect’ arguments, the tribunal is assisted by the following paragraphs from the Upper Tribunal decision in Davies v IC and The Cabinet Office [2019] UKUT 185 (AAC): “25. There is a substantial body of case law which establishes that assertions of a “chilling effect” on provision of advice, exchange of views or effective conduct of public affairs are to be treated with some caution. In Department for Education and Skills v Information Commissioner and Evening Standard EA/2006/0006, the First-tier Tribunal commented at [75(vii)] as follows: “In judging the likely consequences of disclosure on officials’ future conduct, we are entitled to expect of them the courage and independence that has been the hallmark of our civil servants since the Northcote-Trevelyan reforms. These are highly-educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions. The most senior officials are frequently identified before select committees, putting forward their department’s position, whether or not it is their own.”

26. Although not binding on us, this is an observation of obvious common sense with which we agree. A three judge panel of the Upper Tribunal expressed a similar view in DEFRA v Information Commissioner and Badger Trust [2014] UKUT 526 (AC) at [75], when concluding that it was not satisfied that disclosure would inhibit important discussions at a senior level: “75. We are not persuaded that persons of the calibre required to add value to decision making of the type involved in this case by having robust discussions would be inhibited by the prospect of disclosure when the public interest balance came down in favour of it…

76. …They and other organisations engage with, or must be assumed to have engaged with, public authorities in the full knowledge that Parliament has passed the FOIA and the Secretary of State has made the EIR. Participants in such boards cannot expect to be able to bend the rules.”

27. In Department of Health v Information Commissioner and Lewis [2015] UKUT 0159 (AAC), [2017] AACR 30 Charles J discussed the correct approach where a government department asserts that disclosure of information would have a “chilling” effect or be detrimental to the “safe space” within which policy formulation takes place, as to which he said: “27. …The lack of a right guaranteeing non-disclosure of information …means that that information is at risk of disclosure in the overall public interest … As soon as this qualification is factored into the candour argument (or the relevant parts of the safe space or chilling effect arguments), it is immediately apparent that it highlights a weakness in it. This is because the argument cannot be founded on an expectation that the relevant communications will not be so disclosed. It follows that … a person taking part in the discussions will appreciate that the greater the public interest in the disclosure of confidential, candid and frank exchanges, the more likely it is that they will be disclosed…

28. …any properly informed person will know that information held by a public authority is at risk of disclosure in the public interest.

29. … In my view, evidence or reasoning in support of the safe space or chilling effect argument in respect of a FOIA request that does not address in a properly reasoned, balanced and objective way: i) this weakness, … is flawed.”

28. Charles J discussed the correct approach to addressing the competing public interests in disclosure of information where section 35 of FOIA (information relating to formulation of government policy, etc) is engaged. Applying the decision in APPGER at [74] – [76] and [146] – [152], when assessing the competing public interests under FOIA the correct approach includes identifying the actual harm or prejudice which weighs against disclosure. This requires an appropriately detailed identification, proof, explanation and examination of the likely harm or prejudice.

29. Section 35 of FOIA, with which the Lewis case was concerned, does not contain the threshold provision of the qualified person’s opinion, but these observations by Charles J are concerned with the approach to deciding whether disclosure is likely to have a chilling effect and we consider that they are also relevant to the approach to an assessment by the qualified person of a likely chilling effect under section 36(2) and so to the question whether that opinion is a reasonable one.

30. Charles J said at [69] that the First-tier Tribunal’s decision should include matters such as identification of the relevant facts, and consideration of “the adequacy of the evidence base for the arguments founding expressions of opinion”. He took into account (see [68]) that the assessment must have regard to the expertise of the relevant witnesses or authors of reports, much as the qualified person’s opinion is to be afforded a measure of respect given their seniority and the fact that they will be well placed to make the judgment under section 36(2) – as to which see Malnick at [29]. In our judgment Charles J’s approach in Lewis applies equally to an assessment of the reasonableness of the qualified person’s opinion as long as it is recognised that a) the qualified person is particularly well placed to make the assessment in question, and b) under section 36 the tribunal’s task is to decide whether that person’s opinion is substantively reasonable rather than to decide for itself whether the asserted prejudice is likely to occur. Mr Lockley agreed that the considerations identified by Charles J were relevant. We acknowledge that the application of this guidance will depend on the particular factual context and the particular factual context of the Lewis case, but that does not detract from the value of the approach identified there.”

28. It is not an absolute exemption and therefore the public interest balancing test applies. Personal data

29. The relevant parts of section 40 of FOIA provide: Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject. (2) Any information to which a request for information relates is also exempt information if – (a) It constitutes personal data which does not fall within subsection (1), and (b) either the first, second or the third condition below is satisfied. (3A) The first condition is that the disclosure of the information to a member of the public otherwise than under this Act – would contravene any of the data protection principles, or… Personal data is defined in section 3 of the Data Protection Act 2018 (DPA): (2) ‘Personal data’ means any information relating to an identified or identifiable living individual (subject to subsection (14)(c)). (3) ‘Identifiable living individual’ means a living individual who can be identified, directly or indirectly, in particular by reference to— (a) an identifier such as a name, an identification number, location data or an online identifier, or (b) one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.

30. The definition of ‘personal data’ consists of two limbs: i) Whether the data in question ’relates to’ a living individual and ii) Whether the individual is identified or identifiable, directly or indirectly, from those data.

31. The data protection principles are set out Article 5(1) of the UKGDPR and ss 35-40 DPA. Article 5(1)(a) UKGDPR provides: that personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject. Article 6(1) UKGDPR provides that processing shall be lawful only if and to the extent that at least one of the lawful bases for processing listed in the Article applies.

32. The only potentially relevant basis here is article 6(1)(f): “Processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which requires protection of personal data, in particular where the data subject is a child.”

33. The case law on article 6(1)(f)’s predecessor established that it required three questions to be answered, which we consider are still appropriate if reworded as follows a. Is the data controller or a third party pursuing a legitimate interest or interests? b. Is the processing involved necessary for the purposes of those interests? c. Are the above interests overridden by the interests or fundamental rights and freedoms of the data subject?

34. Lady Hale said the following in South Lanarkshire Council v Scottish Information Commissioner [2013] 1 WLR 2421 about article 6(f)’s slightly differently worded predecessor: “27. … It is well established in community law that, at least in the context of justification rather than derogation, ‘necessary’ means ‘reasonably’ rather than absolutely or strictly necessary …. The proposition advanced by Advocate General Poiares Maduro in Huber is uncontroversial: necessity is well established in community law as part of the proportionality test. A measure which interferes with a right protected by community law must be the least restrictive for the achievement of a legitimate aim. Indeed, in ordinary language we would understand that a measure would not be necessary if the legitimate aim could be achieved by something less. … “

35. Section 40(3A) is an absolute exemption and therefore the separate public interest balancing test under FOIA does not apply. The role of the tribunal

36. The tribunal’s remit is governed by section 58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner. Evidence

37. We had before us: a. An open bundle b. A closed bundle

38. The bundle included a witness statement from D Chugg, Director for North East Asia and China in the FCDO.

39. In accordance with our duty under Browning we considered whether it was necessary to withhold the information in the closed bundles from the appellant. We were satisfied that it was necessary to withhold the information from the appellant in order to avoid defeating the purposes of the proceedings. Issues

40. The issues for the tribunal to determine are: a. Would disclosure, or would disclosure be likely to, prejudice relations between the United Kingdom and any other State, or the interests of the United Kingdom abroad or the promotion or protection by the United Kingdom of its interests abroad? b. In the reasonable opinion of a qualified person, would disclosure of the information, or would it be likely to, inhibit the free and frank provision of advice, or otherwise to prejudice, the effective conduct of public affairs? c. Does the public interest in maintaining any exemptions that are engaged outweigh the public interest in disclosure? d. Is the withheld information personal data i.e. does it relate to an identifiable individual? If so: i. Is the requestor pursuing a legitimate interest or interests? ii. Is the processing involved necessary for the purposes of those interests? iii. Are the above interests overridden by the interests or fundamental rights and freedoms of the data subject? Discussion and conclusions Overarching points in relation to the exemptions relied on Deference

41. Under section 27 Parliament has entrusted the tribunal with determining whether or not disclosure would or would be likely to prejudice international relations. Whilst we pay due deference to the views of the executive in the form of the particular government department in question, they must explain fully the basis for those views because the decision is ultimately one for the tribunal to take. Section 27

42. Some of our reasoning on this issue refers to or reveals the content of the redacted passages and is therefore contained in the closed annex.

43. The FCDO has highlighted in yellow in the closed bundle the information that it withholds under section

27. The discussions and conclusions that follow in relation to section 27 relate to that information. Is section 27 engaged?

44. The claimed prejudice under section 27 is dealt with in detail in the witness statement of Dan Chugg, Director for North East Asia and China at the FCDO. Mr. Chugg has been in the role for three years and his earlier career included postings in Hong Kong, New Delhi and Beijing. He was British Ambassador to Myanmar prior to taking up his current role. We accept that he has relevant experience and expertise in relation to any potential impact on relations with China or other states.

45. Mr Chugg explains the importance of the UK relationship with China where there are clear UK and global interests. He states that there are issues on which the UK challenges China publicly, such as on human rights and their approach in Hong Kong but it is also important that the UK can have trusted private dialogue with China. He explains that releasing sensitive information from the Briefing Pack could erode trust with the Chinese Government, damage the relationship and hinder the UK’s further ability to deliver the UK’s objectives in relation to China. He explains the current government’s re-engagement with China after a period of little high-level contact.

46. Mr. Chugg sets out the claimed prejudice in relation to each subsection relied on in detail.

47. In relation to section 27(1)(a) we accept his evidence that it is critical for UK interests that there is frequent, high-level contact between the British and Chinese governments involving trusted and candid discussions and that the government wants relations to be consistent, durable, respectful, avoiding surprises where possible. We accept his opinion that releasing this information would run counter to that. We note the assessment of China’s sensitivity to criticism set out in the 5 April 2024 letter to the Commissioner.

48. Further we accept his evidence that the information details the then FCO's strategy and approach towards China and the steers which were provided to the then Prime Minister when dealing with China related issues and international issues involving China on his visit. We accept that releasing the Briefing Pack would mean that China would be privy to the UK’s internal thinking on China's role on a number of foreign and security policy matters. We find that the strength of this concern is reduced to some extent by the fact that this was a visit in 2013, but many of the issues remain live.

49. For the reasons given in Mr. Chugg’s closed evidence, we accept that releasing the highlighted information would prejudice the UK’s ability to conduct and develop international relations in the most appropriate way.

50. In relation to subsection 27(1)(c) we accept Mr. Chugg’s assessment that disclosure would likely lead to other countries developing a lack of confidence in the UK's ability to conduct international relations appropriately, if the sensitive material in the briefing pack were released, causing embarrassment to China. We also accept his assessment of the risks outlined in his closed evidence on this subsection.

51. In relation to section 27(1)(d) we accept that the release of the identified part of the briefing pack would be likely to undermine the aims of the visit i.e. to promote the UK’s interests in China in terms of British ‘soft power’, foreign and policy interests and commercial interests, as detailed in his closed evidence. We accept his view that if the briefing pack were released in full, this would be likely to cause significant damage to the relationships of the FCDO with a wide range of partners.

52. On that basis we accept that the claimed prejudice under section 27(1)(a) (c) and (d) relates to the protected interests and is real and of substance. We accept that disclosure would be likely to prejudice relations between the United Kingdom and other States, the interests of the United Kingdom abroad and the promotion or protection by the United Kingdom of its interests abroad.

53. For those reasons, and the additional reasons given in closed, we accept that section 27 is engaged in relation the information highlighted in yellow in the briefing pack. Public interest balance

54. Although a small portion of the matters relied on by the FCDO are, as outlined above, reduced in weight by the passage of time the remainder, in our view, are not. Given the clear and significant risks to the important interests protected by the exemptions in section 27, as described above and in closed, in our view there is an extremely high public interest in maintaining the exemption.

55. We accept that the issues highlighted in the article published by the BBC on 24 May 2022 (‘Who are the Uyghurs and why is China being accused of genocide’) mean that there is a strong additional public interest in transparency in relation to the UK Government’s relationship with China and in relation to what matters were or were not raised either in the briefing or by the Prime Minister in his visit to China. We are not persuaded that the strong public interest in disclosure outweighs the extremely high public interest in maintaining the exemption. Are section 36(2)(b)(i) and section 36 (2)(c) engaged?

56. The FCDO relies on the opinion of the qualified person in relation to section 36(2)(b)(i) (disclosure would be likely to inhibit the free and frank provision of advice) and section 36(2)(c) (disclosure would otherwise be likely to prejudice the effective conduct of public affairs).

57. The purpose of these sections is to protect the free and frank provision of advice and the effective conduct of public affairs. Is there an opinion under section 36?

58. The qualified person, Minister West, was provided with a copy of the information and a submission. The information provided to Minister West was colour coded in the way it had originally been provided to the Commissioner, not in the way that it is currently colour coded.

59. In relation to the engagement of section 36 the submission said:

11. During FCDO's consideration of the material originally withheld and having reviewed the material attached at Annex B alongside the approach taken to date, China Department judge that the information is exempt under s36 (free and frank provision of advice or exchange of views for the purposes of deliberation) because disclosure would inhibit the processes of providing advice or exchanging views and the possibility of disclosure could have a "chilling effect" leading to loss of frankness and candour. [Paragraph 12 is redacted from both the open and closed bundles]

13. We are therefore requesting Ministerial approval to use section 36 instead of section 35 (Formulation of government policy, etc) as was previously used, to withhold some of the information. FCDO will continue to rely heavily on section 27 (International relations) and section 40 (Personal information) in our response to the Tribunal and in the Witness Statement, which is currently being prepared. We are considering if section 43 (Commercial interests) should continue to be used.

14. Section 36 applies due to the sensitivity of the information in scope and it is reasonable to think inhibition would or would be likely to occur. Whilst the Briefing was to support a visit in 2013, disclosure even now would have an adverse effect on the free and frank exchange of views that would be likely to follow from disclosure. Officials would feel less able to provide detailed and frank written advice to Ministers ahead of official visits and engagement, knowing that this might later be released and available for other governments to view. S36 is required to withhold the disclosure of the remaining information contained within the Briefing alongside section 27 (International relations). A detailed summary of the sensitivities of the information in the context of the UK-China relationship is attached at Annex C.

60. Annex C contains an outline of the UK’s relationship with China, then states as follows:

4. The Briefing was prepared for the Prime Minister with an expectation that it would not be shared more widely. It was regarded as a private and confidential document and was not written with the intention that it would be released into the public domain. Given the frank nature of some of the information within the document, it is likely that disclosing the information or consultation regarding possible release would lead to damage to relations as China and other states would become more cautious and less candid in their interactions with UK Ministers and officials. The document and these kinds of Briefings are seen as being a safe space for matters of international significance to help with the visit. The FCDO significance considers that the public disclosure of information where we have indicated the section 27 exemption would cause concern within our relationships with China and more widely.

5. This was a period when the UK and many of our partners were rapidly expanding our cooperation with China, seeking to maximise trade and other opportunities. Two years after this visit to China, President Xi undertook a State Visit to the UK. FCDO's response to the ICO of 5 April set out how our relationship had changed and was, at that time, guided by the Integrated Review Refresh. The Integrated Review Refresh, published 23 March 2023, updated the government’s security, defence, development and foreign policy priorities to reflect changes in the global context since Integrated Review 2021.

6. Since that letter, we have had a change of government which has set out its intention to re-engage with China after a period of little high-level contact. The Government’s approach is guided by the “Three C’s”: We will co-operate where we can as fellow permanent members of the UN Security Council. We cannot address global challenges unless we cooperate, including on global net zero, health and growing trade. We will support UK business to engage with the second largest economy in the world – our fourth largest trading partner – while being open-eyed to any risks and ensuring security and resilience. We will compete where we have different interests. And we will challenge where we must, to protect our national security and values.

7. In October 2024 the Foreign Secretary visited China where he had extensive talks with Chinese Foreign Minister Wang Yi covering issues such as climate and trade, and global foreign policy challenges including Russia’s illegal invasion of Ukraine. The Prime Minister subsequently met President Xi in the margins of the G20 meeting the following month. In that meeting the Prime Minister set out that as G20 countries and members of the UN Security Council, the UK and China have a shared responsibility to work together in pursuit of global stability, economic co-operation and the clean energy transition. They also discussed deepening the partnership bilaterally on trade and investment, health, education and other areas of mutual interest.

61. The recommendation in the submission states: That the Minister decides that sections 36(2)(b) (i) and (ii) can be engaged as disclosure would, or would be likely to, inhibit the ability of your officials and others to express themselves open and honestly, when providing advice in relation to matters pertaining to China and the United Kingdom. This is instead of using section 35 (Formulation of government policy) which was one of the exemptions used previously to withhold information in scope of this request. As a matter of law, you cannot use both s35 and s36.

62. The Minister replied in an email dated 17 December 2024 as follows: Having reviewed the ministerial submission of 11 December, Minister West's opinion as the Qualified Person is that s36 FOIA currently applies, and for avoidance of doubt, that s36 applied from the date of refusal, 10 November 2023.

63. It is not entirely clear from the recommendation whether the opinion was being sought only in relation to the information that had previously been withheld under section 35 or in relation to the entire briefing. However, taking account of the remainder of the submission, we find that it is clear that the opinion is sought in relation to the entire briefing and not just in relation to the matters colour coded as covered by section

35.

64. We note that the recommendation refers to sections 36(2)(b)(i) and (ii) and not to section 36(2)(c). The description of the relevant inhibition in the recommendation and in the remainder of the document appears to relate to 36(2)(b)(i) not to 36(2)(c). However, the covering email and the heading to the submissions refer to section 36 as a whole and use the phrase ‘prejudice to the effective conduct of public affairs’. On that basis we accept that the Minister’s opinion applies to both subsections relied on before the tribunal.

65. Finally, although the opinion and the submission do not say whether the Minister’s opinion is that disclosure ‘would’ or ‘would be likely to’ cause the relevant inhibition or prejudice we accept that the Minister formed the opinion at least at the lower level of ’would be likely to’.

66. On that basis we accept that the Minister formed the opinion that the information would be likely to cause the relevant inhibition or prejudice for the reasons set out in the submission. Is that opinion reasonable?

67. In considering the reasonableness of the opinion of the qualified person, we take account of the seniority of the Minister and the fact that the Minister is well-placed to make the assessment. We recognise that Parliament has chosen to confer responsibility on the qualified person for making the primary (albeit initial) judgment as to inhibition and that the opinion of the qualified person should be afforded a measure of respect.

68. We have concluded that the information highlighted in yellow can be withheld under section

27. We must therefore consider the reasonableness of the opinion in relation to the remainder of the briefing. Or, looked at from the other direction, we have to ask whether the qualified person could reasonably have formed the view that all the information in the briefing, including the information that is highlighted in green, would be likely to cause the relevant inhibition.

69. The opinion itself provides no evidential or factual reasoned basis for concluding that the relevant inhibition or prejudice would be likely to occur.

70. The submission to the qualified person clearly links the risk of inhibition to disclosure of the information that we have found can be withheld under section

27. The submission refers to the ‘sensitive’ information contained in the submission and the ‘frank’ nature of some of the information in the document.

71. Annex C states: “Given the frank nature of some of the information within the document, it is likely that disclosing the information or consultation regarding possible release would lead to damage to relations as China and other states would become more cautious and less candid in their interactions with UK Ministers and officials. The document and these kinds of briefings are seen as being a safe space for matters of international significance to help with the visit. The FCDO considers that the public disclosure of information where we have indicated the section 27 exemption would cause concern within our relationships with China and more widely.”

72. The submission continues by providing further arguments that we have considered above in relation to section

27.

73. In relation to the information in the briefing packs that does not give rise to the relevant risk of inhibition under section 27, we are not persuaded that the submission provides a properly reasoned basis for concluding that disclosure would discourage officials from being so forthright in their advice. We find that it contains no evidence or any factual or reasoned basis for concluding that such inhibition would or would be likely to be caused by disclosure of the material highlighted in green in the closed bundle.

74. The submission does not address the factors highlighted at paragraphs 27 and 28 of Lewis. The opinion is provided in relation to the entire briefing pack with no reference to any specific content highlighted green in the pack.

75. In Mr. Chugg’s witness statement he states that sections 36(2)(b)(i) and (c) FOIA are engaged due to the sensitivity of the information contained within the briefing pack. Although he had earlier in this statement highlighted a large number of particular examples of sensitive information or frankly expressed views within the information withheld under section 27, he identifies no examples from within the information highlighted green in the briefing.

76. He makes a general assertion that if there were a risk that briefing packs will subsequently be disclosed, officials will be required to take this into account when drafting which would be likely to inhibit them and so lessen their ability to be candid and detailed in their briefings.

77. We accept that where there is a real and significant risk that disclosure would be likely to prejudice the UK’s international relations disclosure might cause a chilling effect in the way described. We have decided that information can be withheld.

78. Those writing the briefings are already aware of the risk of disclosure. Indeed, some sections of the briefing have already been disclosed by the FCDO. They are also aware of the importance of providing clear and honest advice to the Prime Minister. It seems highly unlikely in these circumstances that disclosure of the passages that are not claimed by the FCDO to be likely to prejudice international affairs will have any impact on the way in which those officials conduct themselves in the future. Conclusions on whether the opinion is reasonable

79. In our view there is no more than a very remote risk of any chilling effect or impact on the effective conduct of public affairs by disclosure of the parts of the briefing pack that have not been withheld under section

27. This does not reach the threshold in FOIA of a real and significant risk or that disclosure would be likely to cause the relevant inhibition or prejudice.

80. Neither the submission to the qualified person, the qualified person’s opinion, the response of the FCDO nor the witness statement of Mr. Chugg address any of the specific content of the briefing that is not withheld under section

27. The evidence and the submissions do not address the matters highlighted in paragraphs 27 and 28 of Lewis.

81. We do accord the opinion of the qualified person a measure of respect, but we note that the opinion was given in relation to the entire briefing, including the section withheld under section

27. In relation to the remainder of the briefing, that is not withheld under section 27, it was not based on anything other than high level generic arguments of the chilling effect of release.

82. It is not for us to substitute our view for the qualified person, but in the light of the matters set out above we do not accept that it was reasonable for the qualified person to have formed the view that disclosure of these passages would be likely to cause any chilling effect or any prejudice to the effective conduct of public affairs.

83. In summary, in our view there is no support for a view that the material that is not covered by section 27 would have been likely to inhibit the giving of advice or otherwise prejudice the effective conduct of public affairs. We conclude that the qualified person’s opinion is not reasonable.

84. In summary we do not accept that section 36 is engaged in relation to any information which we have not already determined can be withheld under section

27. The FCDO is not entitled to rely on section 36 to withhold this material.

85. It is not necessary to go on to consider the public interest balance. Section 40

86. Mr. Williams has made no submissions on section 40 in his reply. Having viewed the information withheld under section 40 we are satisfied that it is personal data. Although Mr. Williams is pursuing legitimate interests the personal data is unrelated to those interests and disclosure is therefore not reasonably necessary for the purposes of those interests. On that basis the information is exempt. Signed Sophie Buckley Date: 26 February 2026 Judge of the First-tier Tribunal