Tribunal rejects appeal on memorial transparency

On 27 May 2025, the First-tier Tribunal (General Regulatory Chamber) issued a decision in the case of Dr Dorian Gerhold against the Information Commissioner and the Ministry of Housing, Communities and Local Government (MHCLG). The appeals were centred around various information requests made by Dr Gerhold concerning the proposed site for a national Holocaust Memorial and Learning Centre (HMLC) situated at Victoria Tower Gardens in London.

Dr Gerhold's appeals emerged from claims that key information regarding the HMLC and cost estimation methodology, notably "optimism bias", was withheld from him. He argued that this information was essential for fostering public discourse and ensuring transparency in a project that has undergone significant scrutiny and legal challenges. Dr Gerhold first sought information in December 2018, concerning the planning and decision-making processes related to the HMLC. His attempts to obtain this information included multiple complaints to the Information Commissioner and subsequent appeals, culminating in two requests made in 2022.

In defending its decision to withhold information, the MHCLG invoked exemptions under the Freedom of Information Act, particularly sections 35(1)(a) and 43(2). These sections pertain to information concerning the formulation of government policy and the protection of commercial interests. The MHCLG asserted that releasing the requested information could impair the government’s capacity to engage in honest discussions about the HMLC and its site selection, ultimately arguing that the public interest favoured non-disclosure.

The tribunal's ruling underscored that the policy formulation regarding the HMLC was an ongoing process, emphasising the necessity for government officials to deliberate on sensitive matters without fear that premature disclosures might impact their decision-making. Furthermore, the tribunal examined whether there had been any significant changes in circumstances since previous appeals. It concluded that evidence still indicated that the policy surrounding the HMLC remained "live", and decisions regarding the project were yet to be finalised due to ongoing legal challenges.

In its judgement, the tribunal determined that the public interest in withholding the information surpassed that in disclosure. Consequently, Dr Gerhold's appeals were dismissed, upholding the MHCLG's stance that divulging details about ongoing discussions could result in adverse consequences for the formulation of policy.

This decision has once again sparked conversations about transparency and accountability in governmental decision-making, particularly concerning sensitive cultural projects like the Holocaust Memorial. Dr Gerhold's calls for heightened public awareness regarding the project's financial, legal, and ethical dimensions reflect broader concerns about government transparency in relation to public resources and decision-making processes.

Looking ahead, discussions on the HMLC will likely continue to address the responsibilities of both public and governmental entities to uphold transparency when dealing with sensitive subjects, particularly those tied to historical events with significant socio-political ramifications

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