Boswell v Information Commissioner: ONS wrongly withheld staff replies to Black Lives Matter email under section 41

The First-tier Tribunal has held that the Office for National Statistics was wrong to withhold staff emails sent in reply to a senior manager's message on race and workplace change, ruling that the confidentiality exemption in section 41 of the Freedom of Information Act 2000 did not apply.

In Boswell v Information Commissioner and ONS [2026] UKFTT 804 (GRC), a panel chaired by Judge Sophie Buckley allowed an appeal against a June 2025 decision notice that had upheld the ONS's reliance on section 41(1) in respect of twelve withheld emails. The tribunal nonetheless declined to order any steps, since the material had already reached the appellant through disclosure in parallel employment proceedings.

The request concerned responses to a "weekly message" sent in June 2020 by the then Deputy National Statistician, Iain Bell. Following the killing of George Floyd, that message acknowledged systemic racism and reflected on the author's own reading about privilege, before turning to organisational change at the ONS, including the under-representation of Black and minority ethnic staff and the framing of census ethnicity questions. It closed by inviting employees to share their thoughts and join the discussion.

The Commissioner had accepted that the withheld replies were provided voluntarily and in a private capacity, that they carried the necessary quality of confidence, and that disclosure would amount to an actionable breach of confidence once the balance between the article 8 and article 10 rights was struck in favour of privacy.

The tribunal disagreed at the threshold. Section 41 applies only to information a public authority obtains from another person, and where employees are concerned the question is whether they were acting in the course of their employment. Distinguishing Egan, in which health professionals had given statements under separate professional obligations, the panel found that the ONS staff had no such distinct role. They had been emailed in their capacity as employees and had responded, as invited, to a work message from a senior colleague about improving the organisation.

That some replies ranged more widely than anticipated, questioning the extent of racism or the language used, did not change matters. The employees were still contributing their views as employees to a discussion about their employer. Nor did the inclusion of personal stories by a handful of authors take their emails outside the course of employment. People recount personal experiences at work to illuminate work issues, the tribunal observed, and while such content might engage the personal data exemption in section 40, it was not information provided by another person for the purposes of section 41.

On that basis the exemption fell away and the appeal succeeded. The tribunal went on to reject the appellant's challenge to the adequacy of the ONS's searches. The interrogation of Mr Bell's archived mailbox and follow-up checks with recipients amounted to a reasonable and comprehensive exercise. One in-scope email had not been located, but that did not support an inference of further undisclosed material, and a list of prospective meeting attendees compiled by support staff fell outside the request's reference to ensuing correspondence.

With the emails already provided in the employment litigation and no wider public interest in their publication identified, the tribunal required the ONS to take no further action. Whether the authority had discharged its disclosure duties in the employment proceedings was a matter for that forum.