Edward Williams v The Information Commissioner

The unanimous decision of the Tribunal is that the appeal is allowed and a substituted Decision Notice is given in the following terms: (1) The decision notice of the Respondent dated 14 May 2025 that the public authority (the Attorney-General’s Office) was entitled to rely on the Freedom of Information Act 2000 , s35(3) to neither confirm nor deny holding information within the scope of the Appellant’s request for information date 13 October 2024 was not made in accordance with law. (2) Accordingly the public authority shall, no later than 28 days after the date of promulgation of this substituted Decision Notice, deliver a fresh response to the Appellant satisfying the requirements of FOIA, s1(1)(a) and, if relevant information was held on the date of the original response, disclose the same or state any and every legal ground for declining to do so. Reasons Introduction

1. On 13 October 2024 Mr Edward Williams, the Appellant in these proceedings, wrote to the Attorney General’s Office (‘AGO’) requesting information under the Freedom of Information Act 2000 (‘FOIA’) in the following terms: To which any section number mentioned below refers Please disclose information held regarding police escort for Taylor Swift. We will refer to this as ‘the Request’. Attached to it was a link to a Daily Telegraph report with a headline which read: The Attorney General was drafted in to sign off Taylor Swift’s taxpayer-funded police escort during her London concert appearances this summer, it has been claimed.

2. AGO responded on 8 November 2024, refusing to confirm or deny that it held the requested information and citing FOIA, s35(3) in conjunction with s35(1) (c).

3. Mr Williams took issue with that response, arguing that the Request covered ‘more than legal advice’ but, in a letter of 9 December 2024 following an internal review, AGO maintained its position. The letter included this passage: It is understood that your request does not relate solely to any legal advice that may or may not have been provided by the Law Officers. However, any documentation that may or may not be held by the AGO in relation to advice provided by the Law Officers would relate to their function as chief legal advisers to the Government. Either confirming or denying that the AGO held such advice would undermine the long-standing Convention, observed by successive governments, that information about the seeking, preparation, or content of advice relating to the Law Officers’ advisory function is not disclosed outside government. We will refer to the convention as the Law Officers’ Convention.

4. It will be necessary to return to the refusal and the review decision in a little more detail in due course.

5. On 9 December 2024, Mr Williams complained to the Respondent (‘the Commissioner’) about the way in which the Request had been handled. An investigation followed.

6. By a decision notice dated 14 May 2025 (‘the DN’) the Commissioner determined that AGO had been entitled under s35(3) to give a ‘neither confirm nor deny’ (‘NCND’) response to the Request. He stressed the public interest in upholding the Law Officers’ Convention and the importance of public authorities invoking it consistently. Although acknowledging a public interest in the information sought, he judged that it was outweighed by the powerful interest in maintaining the exemption.

7. By a notice of appeal also dated 14 May 2025, the Appellant challenged the Commissioner’s adjudication. He argued that the exemption was not engaged and that even if it was the public interest balance came down firmly in favour of disclosure.

8. The Commissioner resisted the appeal in a response dated 6 June 2025, largely reiterating the grounds given in the DN. The Statutory Framework The right to information

9. FOIA, s1 includes: (1) Any person making a request for information to a public authority is entitled– (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him. The duty under subsection (1)(a) is known as ‘the duty to confirm or deny’. ‘Information’ means information ‘recorded in any form’ (s84).

10. By s35 , which is set out under a rubric in bold type, ‘Formulation of government policy, etc’, it is provided, relevantly, as follows: (1) Information held by a government department … is exempt information if it relates to — … (c) the provision of advice by any of the Law Offices or any request for the provision of such advice … … (3) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1). The exemptions under subsections (1) and (3) are qualified, not absolute. In other words, they are to be applied subject to the familiar public interest balancing tests under s2(1)(b) (in the case of any plea of NCND) and s2(2)(b) in respect of any substantive response. In either case, the question is whether, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosure of the information. The structure of FOIA involves an implicit presumption in favour of disclosure.

11. Coppel on Information Rights , 6 th Edition (2023) offers this commentary (31-023): This exemption will inevitably overlap with the exemption for information in respect of which a claim to legal professional privilege could be maintained. It extends the scope of protection by picking up information that might not be privileged in itself: for example, because it merely recounts or relays legal advice received. The public interest in the maintenance of this exemption is akin to the public interest in maintaining the exemption for information in respect of which a claim to legal professional privilege could be maintained. It has long been a convention within Government that neither the fact of having sought the opinion of the Law Officers … nor the content of that advice, is disclosed without the Law Officers’ consent. In relation to the former, in HM Treasury v IC [2010] 2 WLR 931 Blake J held that ‘Parliament intended real weight should continue to be afforded to this aspect of the Law Officers’ Convention’, and that ‘the general considerations of good government, underlining the history and nature of the convention were capable of affording weight to the interest in maintaining an exemption, even in the absence of particular damage’. Blake J held that FOIA had preserved the Convention, but rendered it amenable to being outweighed by greater considerations of the public interest requiring disclosure of information … The Tribunal’s powers

12. The appeal is brought pursuant to FOIA, s57. The Tribunal’s powers in determining the appeal are delineated in s58 as follows: (1) If on an appeal under section 57 the Tribunal consider – (a) that the notice against which the appeal is brought is not in accordance with the law; or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner, and in any other case the tribunal shall dismiss the appeal. (2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based. Analysis and Conclusions

13. We find this case peculiar. It seems to us likely that the problems began with the AGO making an assumption about the purpose behind the Request rather than reading what Mr Williams had written and were compounded by the Commissioner being drawn into the same error.

14. The duty to provide information under FOIA depends on the proper interpretation of the request under consideration. The public authority must apply a fair, common-sense interpretation to the request. It should read the request generously. If there is genuine uncertainty about the scope of the request, the public authority must consider its obligations to advise and assist applicants and, generally, take reasonable steps to ensure clarity as to what is being asked for.

15. In our view, there was nothing ambiguous or unclear about the Request. It asked for all recorded information relating to the police escort for Taylor Swift. We accept that a sensible qualification, taking into account the newspaper article attached to it, would be to treat it as limited to her most recent London concert appearances. But it certainly cannot be read as asking only for information about advice given, by the Attorney General personally or by any member of his department. Accordingly, the initial response was, in our view, quite unwarranted given the plain wording which Mr Williams had used.

16. The thinking of AGO became all the more obviously confused at the internal review stage. As the passage quoted above shows, it was by then abundantly clear that Mr Williams was not confining himself to advice or ‘legal advice’ that may have been given. Despite that, the argument was made that ‘any documentation that may or may not be held … in relation to advice provided by the Law Officers [our emphasis] would relate to their function as chief legal advisers to the Government.’ Here are an omission and a further unjustified leap of reasoning. The omission is the failure to state whether or not any information not consisting of or containing advice by the Attorney-General or his office was held. The leap of reasoning is the assumption that any documentation relating to any ‘advice’ would necessarily relate to the function of the Law Officers as chief legal advisers to the Government when there is ample room for the possibility of advice being shared between a Law Officer and any member of the Executive which is not offered by reference to, or because of, the particular status of either or both of the individuals concerned. Advice might, for example, be offered by the Attorney-General based simply on personal knowledge or expertise which the giver of advice happens to hold and which has nothing to do with his or her place in the Government. It might be offered purely with a view to political expediency. It might be offered simply because of a friendship or understanding between the giver and the recipient. Would such advice, which might have nothing whatsoever to do with the law, engage s35(1) ? The answer, we would have thought, is that it would depend on the subject-matter and nature of the advice and the circumstances in which it was provided.

17. The AGO could have taken either of two sensible courses. In the first place, it could have delivered a response which said that if and in so far as it holds (or might hold) information within the scope of s35(1) (c), it offers an NCND response; and in so far as the Request asks for information which falls outside the scope of s35(1) (c) (information relating to the provision of advice by any of the Law Officers or any request for the provision of such advice), it either holds or does not hold any such information and, in so far as it does hold such information, it agrees to produce it or it refuses to disclose it, citing some other relevant exception.

18. A second course open to the AGO would have been to press Mr Williams to clarify the nature of the information sought in fuller detail, so as to establish whether he was seeking material which would, or might, fall outside the scope of the s35(1) (c) protection.

19. AGO did not opt for either of these prudent courses of action. In the circumstances, it falls to us to do the best we can with the material available to us.

20. The first argument advanced by Mr Williams was that, on any hypothesis, the information requested fell outside the terms of s35(1) (c) because that provision was, as its heading shows, concerned with Law Officers and the legal advice which they offer to the Government to support its policy-making function. There was no basis for supposing that any such advice was involved in relation to the Taylor Swift police escort. The source of the advice, on his submission, was irrelevant. What mattered was its subject.

21. We do not accept Mr Williams’s first submission. We are not persuaded that the heading of s35 has particular significance in the present context. Although (despite our initial doubts) we accept his point that headings do form part of statutory enactments (see the current edition of Bennion on Statutory Interpretation , section 16.7), nonetheless they stand only as an aid to interpretation of the executive provisions. As such, they must be read with caution. The heading of s35 (‘Formulation of government policy, etc’) cannot sensibly be read as all-embracing. The ‘etc’ makes that obvious. The section is concerned with fostering and supporting good government by protecting information relating to four quite distinct governmental activities, of which seeking and receiving advice from Law Officers is one. The first ( s35(1) (a)) is ‘the formulation or development of government policy’. This shows clearly, we think, that the heading is designed only to signal that the section is concerned with the formulation and development of government policy and other matters . We unhesitatingly reject Mr Williams’s contention that s35(1) (c) is concerned only with Law Officers’ advice bearing on policy formulation and development.

22. On the other hand, we are equally clear that the fact that any intervention or advice happens to come from the Law Officers does not, regardless of the nature of the advice or its subject-matter, or the circumstances in which it is given, of itself mean that the statutory protection attaches. If that had been Parliament’s intention, the legislation would have been worded quite differently.

23. Treating the NCND response as applying to so much of the Request as can properly be read as asking for information within the scope of s35(1) (c), we hold that the AGO was not entitled to provide that response. We have the following reasons.

24. First, we have no confidence that, given the muddled reasoning and argument in the reply to the review application, the AGO asked itself the right question. It appears to be still disposed to treating the Law Officers’ Convention as sacrosanct and an answer in itself to any request for information. Government-generated documents routinely seek to perpetuate that mentality. But it does not correspond with the legal reality following the enactment of FOIA a quarter of a century ago.

25. Second, it appears to us that the Commissioner may have been seduced by the AGO into attaching excessive importance to the Law Officers’ Convention. We agree with Mr Williams’s remark about the danger of giving it the status of an absolute exemption. The proper approach is to give it due weight but the assessment must be nuanced and context-specific, also giving due weight to public interest factors in favour of disclosure.

26. Third, the Commissioner provides no convincing reason for his decision besides stressing the importance of the Law Officers’ Convention.

27. Fourth, the Commissioner does not appear to have attempted to draw out from Mr Williams, or otherwise explore, his case on (a) the scope and effect of s35(1) (c) or (b) his position on the public interest balancing test.

28. Fifth, the Commissioner appears to have given no thought to the need to weigh the public interest separately in relation to the exemption under s35(1) (c) and the exclusion under s35(3) (which applies to the s1(1)(a) duty to confirm or deny whether requested information is held), much less to the question whether the public interest in maintaining the latter is less powerful than that in favour of maintaining the former. We have reflected on the point and consider that, generally and certainly here, that proposition is valid.

29. Sixth, having heard from Mr Williams we are persuaded that the subject-matter of the Request under consideration here is not insignificant, engaging a public interest in accountability, the husbandry of police resources and public finances generally, and decision-making mechanisms in government. It is, we think, hard to see that the public interest would be served by suppressing disclosure of the bare fact as to whether the AGO holds (or does not) hold relevant information which may touch upon those questions.

30. Seventh, we do not see our approach as breaching a dam or putting at risk the salutary objective of protecting communications between Law Officers and Government. In this regard we are reinforced by the observation in Coppel ( op cit , para 31-028) (from which we derive some support for our fifth point above) that, if a public authority is precluded from relying on an NCND response, it does not by any means follow that, if any relevant information is held at all, the law will require its disclosure. We can well see that cases may arise in which the argument for suppressing the fact of information being held (or not held) may be conspicuously weak but the grounds for withholding the information itself may be compelling.

31. For all of these reasons, we are satisfied that, for the purposes of s35(3) , the public interest balance comes down against maintaining the exclusion. Disposal

32. The appeal must be allowed and AGO must deliver a fresh response which complies with s1(1)(a) and, if it admits to having held relevant material at the time of the original response, disclose it to Mr Williams or provide any and every legal ground for refusing to do so. (Signed) Anthony Snelson Judge of the First-tier Tribunal Dated: 15 December 2025