Dear Her Majesty's Treasury,

Please provide all sent and all received emails - including email attachments - containing the search terms 'Morse' and/or 'Amyas' and/or 'LCAG' and/or 'Loan Charge Action Group' between the period 21 October 2021 to 04 November 2021 inclusive (which equates to a period of eleven working days) from the mailboxes of the following senior HM Treasury officials:

Tom Scholar - Permanent Secretary
Charles Roxburgh - Second Permanent Secretary
Beth Russell - Director General, Tax and Welfare
Clare Lombardelli - Director General, Chief Economic Adviser

If the department holds recorded information of any other kind and/or in any other format (including, but not limited to SMS text messages, WhatsApp messages, Signal messages, internal memos, documents etc.), which includes reference(s) to any of the search terms listed above and was received or sent by one or more of the four named individuals between the dates specified, please also disclose and provide this data.

Yours faithfully,

F Thompson

Dear Her Majesty's Treasury,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Her Majesty's Treasury's handling of my FOI request 'Emails / recorded information from/to HM Treasury senior officials containing the search terms 'Morse' and/or 'Amyas' and/or 'LCAG' and/or 'Loan Charge Action Group''.

Thank you for your reply of 02 February 2022 and I note the apology you include for the considerable delay to your response, which has breached the statutory time line laid out by the FOIA, on this occasion taking a total of 59 working days.

It is important that you are granted an opportunity to review your handling of this request, for I believe that the exemptions you have referenced have been applied incorrectly in the context of not just the lengthy delay you have already admitted, but also their relevance, or more accurately their lack of relevance, to the information being sought.

For the benefit of any future or potential investigation by the Information Commissioner's Office, it would seem sensible at this point to lay out the date sequence of events for mutual clarity and agreement -

04 November 2021 - request delivered to HM Treasury
05 November 2021 - receipt confirmed by HM Treasury and allocated as FOI2021/25946
02 December 2021 - interim reply sent by HM Treasury indicating engagement of section 35(1)(a) of the FOIA, confirming your need for additional time by virtue of Section 10(3) of the FOIA to assess whether the public interest in withholding the information outweighs the public interest in disclosing it. Your communicated estimate stated that it would take you another 20 working days to complete your consideration, and you expected to provide your substantive reply by 4 January 2022.
05 January 2022 - another interim reply sent by HM Treasury indicating a continuation of your considerations of the information that you had previously identified as being held in relation to my request under section 35(1)(a) of the FOIA. You confirmed that you were not yet in a position to provide me with the outcome of those considerations and aimed to respond to me by 01 February 2022.
02 February 2022 - response issued by HM Treasury, repeating the explanation that you needed to give further consideration to the public interest with regard to the information you hold under section 35(1)(a), by virtue of section 10(3) of the FOIA. This is followed by a refusal to disclose the information requested by claiming a newly introduced exemption under section 14(1) of the FOIA.

The interim reply sent by HM Treasury on 02 December 2021 was 19 working days after the request had been received; the next interim reply sent by HM Treasury on 05 January 2022 was 39 working days after the request had been received; the final response sent by HM Treasury on 02 February 2022 was 59 working days after the request had been received.

Section 10(3) of the FOIA enables an authority to extend the 20 working day limit up to a ‘reasonable’ time in any case where it requires more time to determine whether or not the balance of the public interest lies in maintaining an exemption, or it needs further time to consider whether it would be in the public interest to confirm or deny whether the information is held. In their published guidance, the ICO confirm that this extension will therefore only apply to requests where the authority considers a ‘qualified exemption’ (an exemption that is subject to a public interest test) to be engaged.

It is also the case that section 10(3) only permits extensions for further consideration of the public interest, and the additional time cannot be used to determine whether the exemptions themselves are engaged. This means that the authority should have identified the relevant exemptions, and satisfied itself that they are applicable, within the initial 20 working day time limit.

In this case, HM Treasury have taken 59 working days to conclude that section 14(1) should now suddenly be applied to my request, whilst at the same time offering your sincere apologies that this was not identified sooner, as you clearly should have done if you believed it to be engaged. It is apparent from the same published guidance that the ICO firstly consider that an authority should normally take no more than an additional 20 working days to consider the public interest test - for qualified exemptions only - meaning that the total time spent dealing with the request should not exceed 40 working days, with any extension beyond this categorised as exceptional. Public authorities will also need to demonstrate that the length of any time extension is justified.

It is quite obvious in this circumstance that the initial extension under section 10(3) communicated on 02 December 2021, and the further extension communicated on 05 January 2022, were purely to consider the public interest test for the information identified as being held by HM Treasury in relation to my request under section 35(1)(a) of the FOIA. These section 10(3) extensions, which culminated in a response which finally came 59 working days after receipt of my request, cannot then be used to consider anything but the public interest test in relation to a qualified exemption which has already been identified. Yet, at the eleventh hour, you introduce a completely unrelated exemption, and one which I do not consider the ICO would accept could now be used following the singular, specific reasoning you had previously communicated as solely justifying those extensions and delays. Between 02 December 2021 and 02 February 2022, there was ample time for you to inform me that you were considering withholding this information by use of section 14(1) - yet you made no such attempt.

The information requested covers a narrow period of only eleven working days, so it is difficult to accept any reasoning or analysis from HM Treasury that it could possibly have taken you 59 working days to form the conclusion that a disproportionate level of staff effort would be required to review, assess and extract that data. I have only asked for four mailboxes to be searched, with a nominal four keyword search terms - with that search extended to cover recorded information held by HM Treasury in any other form. It is revealing that you supply no estimate or indication of the actual numbers of any emails, documents or files which you claim are in scope of this request, instead just providing a blanket statement that each of those would need to be reviewed separately to comply with my request.

The ICO also reiterate that you have a set time limit (normally 20 working days) in which you must respond to a request. As long as you keep to this time limit, then you may also take into account anything that happens within the period in which you are dealing with the request. However, you cannot take into account anything that happens after this cut-off point. This means that if you breach the FOIA by taking longer than 20 working days to deal with a request, or if you make a late claim of section 14(1), then you need to disregard anything that happened after the time limit for responding had expired. As it has in this case.

I have looked closely at the revised and updated guidance recently published by the ICO on section 14 of the FOIA. It bears repeating here that the FOIA gives individuals a greater right of access to official information in order to make bodies more transparent and accountable, and as such it is an important constitutional right. More significantly perhaps, the ICO state that the claimed engagement of section 14(1) is a 'high hurdle' for any public authority and that it is concerned with the nature of the request rather than any damage releasing the requested information may have - an important and notable distinction. If a larger public authority (such as HM Treasury with a confirmed FTE workforce of around 1300 people) is attempting to claim use of section 14, then it is not sufficient to argue that a request is burdensome because you have only allocated a small number of officers to handle requests.

Your use of section 35(1)(a) is, I believe, similarly misapplied. It is my understanding that only central government are able to use these exemptions, which is confirmed by the published guidance available from the ICO. Section 35(1)(a) covers any information relating to the formulation and development of government policy, with any public interest arguments focusing on potential damage to policymaking from the content of the specific information and the timing of the request. Arguments will be strongest only when there is a live policy process to protect.

The ICO, in their published guidance on section 35, confirm that the classic and most formal policy process involves turning a White Paper into legislation. The government produces a White Paper setting out its proposals. After a period of consultation, it presents draft legislation in the form of a bill, which is then debated and amended in Parliament. In such cases, policy formulation can continue all the way up to the point the bill finally receives Royal Assent and becomes legislation.

The Loan Charge, via the Finance (No. 2) Act 2017, received Royal Assent on 16 November 2017 - more than four full years ago.

The ICO, again in their published guidance on section 35, confirm that the Commissioner understands the term ‘development’ of policy to include the process of reviewing, improving or adjusting existing policy. Not every decision or alteration made after an original policy was settled will amount to the development of that policy. If policy is a plan to achieve a particular outcome in the real world, the development of that policy is likely to involve a review of its intended outcomes, or a significant change to the original plan. By contrast, minor adjustments made in order to adapt to changing circumstances, avoid unintended consequences, or better achieve the original goals might more accurately be seen as decisions on implementation.

Lord Morse was appointed by government to perform a review of the Loan Charge in September 2019. The report containing Lord Morse's recommendations was published in December 2019 - now more than two full years ago.

For information to be exempt from disclosure, it must relate to the formulation or development of government policy. The Commissioner understands these terms to broadly refer to the design of new policy, and the process of reviewing or improving existing policy. The exemption will not cover information relating purely to the application or implementation of established policy and it is therefore important to identify where policy formulation or development ends and implementation begins.

The timing of the request will therefore be an important factor. This was confirmed by the Information Tribunal in DBERR v Information Commissioner and Friends of the Earth (EA/2007/0072, 29 April 2008): “This public interest is strongest at the early stages of policy formulation and development. The weight of this interest will diminish over time as policy becomes more certain and a decision as to policy is made public.”

As outlined and clarified above, this policy has been in place since November 2017 and was subject to implementation decisions, as per the Morse review, in December 2019. The information sought relates to neither the formulation nor the development of the policy; by contrast, it asks for specific, recorded information from the mailboxes (or any other source of recorded information) of four senior officials, over a period of eleven working days in 2021, which HM Treasury has already confirmed it holds.

On the basis of these strong and compelling arguments (supported by the Commissioner's published guidance) in opposition to your claimed exemptions, I ask that you please now reconsider your decision to withhold this information and that you proceed to disclose it in full as originally requested on 04 November 2021.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/e...

Yours faithfully,

F Thompson