Gewan v Information Commissioner: Tribunal upholds Cabinet Office refusal on civil service attendance policy

The First-tier Tribunal has dismissed an appeal challenging the Cabinet Office's refusal to disclose documents relating to the government's requirement for civil servants to maintain 60% minimum office attendance following the pandemic.

In Matthew Gewan v The Information Commissioner & Cabinet Office [2025] UKFTT 1234 (GRC), the appellant sought disclosure of reports and submissions that led to the policy requiring government departments to implement the attendance requirement. His December 2023 freedom of information request specifically targeted the submission containing this recommendation, noting that the policy decision had already been made public through numerous media reports.

The Cabinet Office confirmed holding the information but refused disclosure under section 36(2)(b)(i) and (ii) and section 36(2)(c) of the Freedom of Information Act. A government minister, acting as the qualified person, provided an opinion that disclosure would inhibit the free and frank provision of advice, the free and frank exchange of views for deliberation purposes, and prejudice the effective conduct of public affairs.

Following the appellant's complaint, the Information Commissioner investigated and upheld the Cabinet Office's position in November 2024, finding the qualified person's opinion reasonable. The Commissioner applied the established test that an opinion need only be one that a reasonable person could hold – it need not be the only reasonable conclusion or the most reasonable opinion available.

The withheld material consisted of a ministerial submission titled "Improving Office Working Across the Civil Service" dated 26 September 2023. Matthew Davies, Deputy Director of the Civil Service Pay, Policy and Pensions Team, provided evidence that departments had announced the 60% attendance expectation to staff on 16 November 2023, whilst various departments remained at different stages of discussions with trade unions.

The appellant challenged both the reasonableness of the qualified person's opinion and argued the public interest favoured disclosure. He contended the minister had failed to demonstrate a causal relationship between disclosure and the anticipated harm to frank exchanges.

Judge Hughes, sitting with Members Cosgrave and Wolf, found the qualified person's opinion clearly reasonable in the circumstances. The Tribunal emphasised that the information request came during considerable public and civil service debate about working from home arrangements, with well-publicised ministerial interventions including Jacob Rees-Mogg's comments about absent civil servants.

The Tribunal accepted that disclosure at the time would have disrupted the necessary coordination around announcements and implementation plans. Each department needed to control the timing and content of communications to their staff and engage with departmental trade unions. The witness evidence demonstrated that losing control of the messaging and planned cascade would have placed the civil service in a reactive position, potentially undermining employee engagement.

Crucially, the Tribunal found that since the substantive content of the decision and its reasons were already well known through public debate, releasing the requested submission would not significantly add to public knowledge. The information remained particularly sensitive, being only months old at the time of the request, with ongoing implications for operational management and estates policy.

The decision reinforces the protection afforded to internal government deliberations under section 36 FOIA, particularly where policy implementation remains active across multiple departments and stakeholders.