George Greenwood v The Information Commissioner & Anor

1. This decision relates to an appeal brought by the Appellant p ursuant to section 57 Freedom of Information Act 2000 . It is in respect of a Decision Notice issued by the Information Commissioner on 28 February 2025 with reference IC-336482-S6Z3. It concerns a request for information made to the 2nd Respondent on 4 June 2024 which asked about the Covid -19 bounce back loan scheme and said "Please provide a copy of any reports produced by the Cabinet Office on the effectiveness of NATIS in pursuing coronavirus support scheme fraud from 1st January 2020 to the date of this request."

2. W hat follows is a summary of the submissions, evidence and our view of the law. It does not seek to provide every step of our reasoning. The absence of a reference to any specific submission or evidence does not mean it has not been considered.

3. In this decision the following definitions are used:- Freedom of Information Act 2000 FOIA The public interest balance test the PIBT The Information Commissioner the IC The Cabinet Office the CO Decision Notice dated 28 February 2025 the DN The National Investigation Service NATIS Thurrock Borough Council the Council The Public Sector Fraud Authority the PSFA The draft report of 14 April 2024 the Draft Report The final report dated 17 October 2024 the Final Report The Department for Business and Trade (previously the Department for Business, Energy & Industrial Strategy) the Department (sometimes BEIS) The bounce back loan scheme the BBLS coronavirus disease 2019 C19 The request for information dated 4 June 2024 the Request Richard Wentel Mr Wentel Grounds of Appeal dated 5 March 2025 the Grounds Upper Tribunal & First-tier Tribunal UT & FtT legal professional privilege LPP guidance issued by the ICO the Guidance

4. The appeal was decided without a hearing as agreed by the parties, as provided for in paragraph 6 of the Directions of 17 July 2025 and allowed by the Tribunal by rule 32(1) The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

5. In this decision any page numbers indicated by their inclusion in brackets refer to pages of the bundle and if the letters CB are added it is to the closed bundle. Evidence and matters considered

6. For the appeal we had a bundle of 314 pdf pages including a redacted version of Mr Wentel's witness statement dated 18 July 2025 and other items not held in the bundle such as the CO's re-amended response dated 21 August 2025.

7. The Appellant for example provided various newspaper articles from The Times dated 6 May 2024 and thereafter in August and September 2024. We had regard principally to the one in May. The others post-dated the response given by the CO to the Request and having considered them we did not conclude that they shed any further light on the public interest factors at the relevant date.

8. We also saw in the bundle a different decision notice dated 25 February 2025 and again involving the Council and NATIS (ref IC-337847-Z8W8) where the request was for a report by Mazars commissioned by the Council in 2023 and completed in March 2024. We understand that the Mazars report was subsequently disclosed under FOIA save where section 40 applied. Its content was not in evidence and we remained uncertain as to whether its publication was before or after the CO's response to the Request in this appeal. However as the relevant decision notice requiring disclosure was on 25 February 2025 we concluded it was afterwards.

9. We also had a closed bundle of 185 pdf pages which included:- (a) an unredacted version of Mr Wentel's statement. (b) the Draft Report marked up indicating the CO's case on which passages are subject to which exemptions. (c) an unredacted version of a letter from the CO to the IC of 24 February 2025. (d) the IC's closed reply to the CO's re-amended response of 17 September 2025.

10. Although there was no gist of the closed material we were satisfied that this was not necessary in the context of this appeal as the Appellant knew what documents had been made subject to rule 14 2009 Rules and, apart from the Draft Report, had redacted versions of them. In any event we kept in mind the on-going duty to consider closed material (see Browning -v- Information Commissioner [2014] EWCA civ 1050 ). Mr Wentel

11. Mr Wentel gave evidence by way of a witness statement for the CO (291-314 and 162CB – 185CB). He is the Director of Services and the Chief Operating Officer of the PSFA based in the CO. As the appeal was decided without a hearing he was not cross-examined on his evidence but we noted the Appellant's comments on his statement in his amended reply (122). In his statement he set out the details of his lengthy experience as a counter fraud professional for the government including 18 years with HMRC and about 6 years in the CO. He also set out his role in assisting the Department with fraud risk with the BBLS. He said that he had worked with NATIS since 2020. Background

12. The BBLS was announced by the UK government in April 2020 as part of the response to the C19 pandemic to support business. Businesses were able to apply for loans of between £2000 and £50,000 which were to be provided by commercial lenders and were to be repaid over a six to ten year period but fully guaranteed by the government in the event of a default. New BBLS loans ended in March 2021 by which time about £47bn had been provided to about 1.5m borrowers. A considerable amount was paid to fraudulent applicants and the CO (109) and Mr Wentel (293) have estimated the level of fraud to have reached over £1.8bn.

13. Mr Wentel describes the function of the PSFA as being "to transform the way that the government manages fraud. It works with Departments and public bodies to understand and reduce the risk of fraud." NATIS is part of the Council and has experience dealing with financial crime. It appears that the Department was working with NATIS on investigations into Business Support Grants and it was in light of this work that NATIS was again introduced to the Department in relation to BBLS cases. Mr Wentel explains the nature of the relationship with NATIS as follows (294):- "13...The arrangement was based on a secondment model whereby NATIS seconded its Accredited Financial Investigator ("AFI") staff into BEIS. Those seconded AFI staff were entitled to exercise the powers of BEIS under both the Police and Criminal Evidence Act 1984 ("PACE") and Proceeds of Crime Act 2002 ("POCA") to perform various activities (e.g. freezing and forfeiting suspected criminal funds in bank accounts, restraint and confiscation of assets and applying for production orders to support investigations). BEIS's POCA powers could only be exercised by 'members of staff of the Department which includes those acting under a secondment arrangement (POCA Order 2002 Schedule 1, Part 1, Para 1). Only a POCA-enabled organisation could undertake the above work required by BEIS. To be POCA-enabled, the organisation must be one of the public authorities listed in Schedule 1 of the Proceeds of Crime Act 2002 (References to Financial Investigators) (England and Wales and Northern Ireland) Order 2021. Both BEIS (and now DBT) and NATIS (through Thurrock Council being a local authority) are listed.

14. The Appellant says for example (31) that "20. There remain significant questions about why such a significant proportion of the UK’s counter-fraud response was handled by a small counter-fraud unit at a local authority which itself has a questionable record of detecting potential fraud." In support of this he provided a copy of a report from The Times of 6 May 2024.

15. (225) In 2024 the PSFA was asked by the Department to review the work of NATIS in investigating BBLS fraud. Mr Wentel says that (295):- "18. Concerns about the performance of NATIS led to a request to the PSFA by the DBT Permanent Secretary on 12 October 2023 to undertake a review of NATIS' performance in investigating BBLS fraud. This led to the development of a cross-functional review team led by the PSFA with a clear terms of reference, agreed with DBT to shape the scope and extent of the Review which covered 6 key areas..." "21. The Review commenced formally on 13 October 2023 and ran through to 24 April 2024 when the draft Report was shared with DBT. The Review was primarily focused on how to improve the performance and governance of NATIS to ensure they delivered to an optimal level, but it also provided insight into longer term options for the DBT Permanent Secretary relating to the approach to enforcement and fraud management. The Review did not consider the use of powers, especially the issue around the secondment arrangement as that was being reviewed by CFES in parallel..."

16. We are satisfied that by the time of the Request and the response NATIS was still engaged even though it appears that later the Department made alternative arrangements. The Draft Report

17. There appears to be no dispute that by the time of the response to the Request the Draft Report had been produced and we were told that the Final Report (which does not appear to have been published) was not issued until 17 October 2024. The Draft Report is in the closed bundle and has not been seen by the Appellant. As a result, although he has seen the redacted statement by Mr Wentel which contains information about it, he is hampered in being able to make submissions on it and is therefore reliant on the Tribunal to scrutinise it carefully as regards all aspects of this appeal- which we have done.

18. The Appellant urges the Tribunal (122) not to accept that the Draft Report was unfinished or incomplete because it appears from Mr Wentel's evidence at para 24 (297) that action was taken on its recommendations prior to the finalisation of the Report. We did not have a copy of the Report but Mr Wentel said that (297):- "24...The content of that report did not materially change between the two versions in this instance the time was an opportunity for DBT to take stock of the implications of the recommendations, clarify requirements and begin to put things in place to deliver against the recommendations."

19. We were therefore not in a position to see how matters progressed in the drafting between April and October 2024 and we approached the appeal on the basis that the Draft Report was a stand-alone document and the exemptions said to be attached to it should be considered on that basis. Role of the Tribunal

20. The Tribunal's role in an appeal by section 57 FOIA is set out in section 58 FOIA which provides that:- (1) If on an appeal under section 57 the Tribunal considers— (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. History – the Request to the DN (in summary)

21. On 4 June 2024 (127) the Appellant made the Request to the CO which in summary was as follows "Please provide a copy of any reports produced by the Cabinet Office on the effectiveness of NATIS in pursuing coronavirus support scheme fraud from 1st January 2020 to the date of this request."

22. On 31 July 2024 (128) the CO replied and said that there was in scope information held but it was exempt by section 31(a), (b) and (g) FOIA with the PIBT favouring the maintenance of the exemption. The Appellant challenged this response (131) and following an internal review the CO wrote again (132) on 5 November 2024. At this stage the CO maintained its view on the exemption relied upon but added section 43(2). The Appellant complained to the IC (137). In the course of its correspondence with the IC on 24 February 2025 the CO added reliance on section 35(1)(a) FOIA (156).

23. On 28 February 2025 (5) the IC issued the DN in which it was recorded that "The Commissioner’s decision is that the information that the complainant has requested about the National Investigation Service is exempt from disclosure under sections 31(1)(a), 31(1)(b),31(1)(g) and 43(2) of FOIA. These exemptions concern law enforcement and commercial interests." The DN did not deal with section 35(1)(a) FOIA because, in the view of the IC, having found that sections 31(1) and 43(2) FOIA were engaged, it was not necessary to do so. Appeal

24. On 5 March 2025 the Appellant issued this appeal. By the time of our deliberations it transpired that the version of the Draft Report initially provided to the IC for his investigation was not the complete version of that document. The full (or "extended") version was only provided to the IC during the course of this appeal. Having seen it, the IC said that it also agreed that section 23 was engaged as claimed, that section 42 applied to some but not all of the parts claimed (about which the CO agreed) and that section 35 applied to the Draft Report. By the time of our deliberations, the final positions of the parties were principally set out in:- for the Appellan t (a) the Appeal and the Grounds (15-96) (b) the Appellant's reply to the IC of 30 April 2025 (106). (c) the Appellant's amended reply to the CO dated 28 July 2025 (119-124). (d) the Appellant's email reply to the re-amended response dated 26 August 2025 (not in the bundle). for the IC (a) the IC's response of 28 April 2025 (97-105). (b) t he IC's open and closed reply to the CO's re-amended response dated 17 September 2025 (not in the bundle). for the CO (a) the CO's re-amended response to the appeal dated 21 August 2025 (not in the bundle) (b) Mr Wentel's open and closed statement dated 18 July 2025. (c) the CO's email of 6 October 2025 (not in the Bundle). Relevant legislation

25. FOIA provides that any person making a request for information to a public authority is entitled to be informed in writing if that information is held (section 1(1) (a) FOIA) and if that is the case to be provided with that information (section 1 (1) (b) FOIA). These entitlements are subject to a number of exemptions which can be absolute or subject to the PIBT. The exemptions relevant to this appeal are those at sections:- (a) 31(1)(a),(b) and (g) which is said by the CO to apply to the entirety of the Draft Report (b) 35(1)(a) which is also said by the CO to apply to the entirety of the Draft Report. (c) 43(2) FOIA where specifically claimed in the Draft Report. (d) 42(1) FOIA where specifically claimed in the Draft Report save as conceded by the CO in its email of 6 October 2025. (e) section 23(1) FOIA as specifically claimed in the Draft Report.

26. Finally, in a footnote to its application to re-amend, the CO said that the Draft Report contained a small number of junior officials names for which the exemption at section 40(2) would apply. In his email in reply the Appellant said that he was content with this position. We could see how section 40(2) was deployed in the Draft Report and in light of the Appellant's position we did not consider it. The Exemptions-introduction

27. In this decision we consider engagement of each qualified exemption starting with sections 35(1)(a) and 31(1)(a),(b) and (g) FOIA as the CO asserted these applied to the entirety of the Draft Report. We go on then to deal with sections 42(1) and 43(2) which are only relevant to specific parts of the Draft Report. We then consider the PIBT and aggregation. Finally we deal with section 23(1) FOIA. Section 31(1)(a),(b) and (g) FOIA Law

28. This exemption is subject to the PIBT. The relevant parts only of section 31 provide as follows:- "(1) Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice (a)the prevention or detection of crime, (b)the apprehension or prosecution of offenders... (g)the exercise by any public authority of its functions for any of the purposes specified in subsection (2), (2)The purposes referred to in subsection (1)(g) to (i) [include] — (a)the purpose of ascertaining whether any person has failed to comply with the law, (b)the purpose of ascertaining whether any person is responsible for any conduct which is improper, (c)the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise,

29. Being prejudice-based it is only engaged where the public authority considers that disclosure (in this case) would be likely to cause harm or the risk of harm remembering that FOIA disclosure is to the world. In considering this question we had regard to the decision in Hogan-v- The Information Commissioner and Oxford City Council (EA2005/0026 & EA/2005/0030) as approved by the Court of Appeal in Department for Work and Pensions v Information Commissioner This is summarised in the re-amended response of the CO as follows [2016] EWCA civ 758 . "22...There must be a real and significant risk of prejudice to the identified interest, that the claimed prejudice must be real, actual or of substance (i.e. not de minimis), and that some causal relationship exists between disclosure and the prejudice." position of the parties

30. When responding to the Request the CO said (128):- "The information contains details about the nature of the DBT response to Bounce Back Loan fraud using NATIS as their enforcement arm. Disclosure of the information would undermine the law enforcement response in this scheme, making both the impact of the approach, and the deterrent effect as a result of it less effective"

31. We reviewed the evidence given on this by Mr Wentel from para 41 (303) and in the DN the IC set out more detail of the CO's position (which was itself set out in the re-amended response) for example that:- (a) the work of NATIS in respect of BBLS fraud allegations was ongoing. (b) disclosure would tip off interested parties because it would provide an insight for those wishing to exploit BBLS by evading prosecution and the work to recover funds thus undermining that activity. (c) disclosure could be used by "cynical defendants, placing investigators under additional burdens. This could impact prosecutions and may lead to additional pressures on prosecuting authorities..." (d) disclosure might undermine confidence in the UK government's response to the BBLS issue . (e) disclosure "carries the potential risk of revealing details on law enforcement tactics, in an operational context which may have a negative impact on law enforcement operations by NATIS. This in turn could increase the risk to the safety of the public as NATIS is engaged in tackling cases of COVID-19 loan abuse where misappropriated cash is used to fund serious and organised crime" (f) disclosure "might result in the destruction of evidence if greater information is known about from where and how NATIS derives evidence and intelligence to support its investigations, including from confidential sources."

32. The IC was satisfied that "there’s a real and significant risk of the envisioned prejudice occurring" and in agreeing with the CO's use of section 31(1) FOIA the IC said that (9):- (a) as regards section 31(1)(a) and (b) NATIS continued to carry out its activities regarding BBLS and that disclosure "27...could provide bad actors with an insight into NATIS and the BBLS that they could seek to exploit to evade prosecution and to avoid paying funds. Disclosing the information could make it harder to prosecute individuals or to take civil action against them." (b) as regards section 31(1)(g) the Department "28... has been entrusted with the functions under section 31(2)(a), (b) and (c). He also considers that those functions could be undermined if the Review were to be disclosed, for the reasons above."

33. In the Grounds the Appellant said (30) that these claims were "speculative and unsupported by specific evidence". He noted for example that :- (a) redaction if properly considered could remove sensitive operational details and in any event the information is not likely to "contain significant volumes of case specific granular material that disclosure of which could affect ongoing cases" (b) the BBLS was closed to new loans in March 2021 so the "information disclosed could not assist nefarious actors in securing new loans fraudulently." (c) some information was already known to the public. review

34. We reviewed the Draft Report noting that the date for this issue to be tested was when the CO was dealing with the Request in July 2024. NATIS was engaged in assisting the Department with the recovery of loans made as a result of fraudulent applications and the pursuit of those responsible. The Draft Report deals with this work. We were therefore satisfied that it did involve information about the prevention or detection of crime and the apprehension or prosecution of offenders and also involved information about whether any person had failed to comply with the law and whether there has been any improper conduct.

35. We considered the position of the parties about whether disclosure would be likely to cause the relevant harm to the degree required ( Hogan). The work in this area by NATIS was on-going and live and even though there had been no new loans for some time the work being done related to the investigation into some of the existing loans, potential criminal proceedings and the recovery of loans where relevant. The issue here therefore is not for example about tipping off those intent on making loan applications but those who had allegedly already done so.

36. We agree that, at the relevant date, some information was known by the public (for example as shown in the Times reporting in May 2024). It can be the case that disclosure might not reveal anything significantly new and thus not be itself the cause of any prejudice. However, in this case, the content of the Draft Report has much more information and is understandably considerably more detailed and insightful than the newspaper reports.

37. Mr Wentel has relevant experience and was closely involved with NATIS and the process of and reasons for the production of the Draft Report. Apart from the comments made on his statement by the Appellant, which we noted, his evidence was not challenged in cross-examination. He sets out in his open statement from para 43 (304) to 57 the issues he says the CO is concerned about. We were also able to read his evidence in the unredacted version in the closed bundle (which we cannot set out in this decision). This, in our view, was a considered and detailed explanation of the CO's concerns. We accepted his open and closed evidence and as a result of doing so concluded that:- (a) the disputed material related to the interests set out in section 31(1)(a), (b) and (c) FOIA. (b) the harms identified are likely to occur are real and of substance. (c) there is a causal link between disclosure and the harms notwithstanding newspaper reporting on the same subject.

38. As regards the possibility of redactions made to remove section 31(1) material in this case in our view, while considerable redaction might remove all the relevant material "Minute dissection of each sentence for signs of deviation from its main purpose is not required nor desirable." (see also for section 35 below). decision on engagement

39. Accordingly in our view this FOIA exemption does ap ply to all of the Draft Report. Section 35(1)(a) FOIA Law

40. This exemption is subject to the PIBT. It provides that "Information held by a government department...is exempt information if it relates to—(a)the formulation or development of government policy." As it is class-based, if the information relates to policy formulation or development, the government department relying on it does not need to show, for the exemption to be engaged, that disclosure would risk there being prejudice.

41. In the Guidance (which while not binding we found useful) the IC says that the words "relates to" and "policy formulation and development" are to be given a broad interpretation. We had regard to the UT decision in Cabinet Office -v- the Information Commissioner & Morland [2018] UKUT 67 and agree with the decision in The Department for Education and skills -v- the Information Commissioner & The Evening Standard EA/2006/0006. Here the public authority's interpretation, with which the FtT agreed, was summarised as follows: - "40...“relates to “in subsection (1) is be broadly construed, both on account of its natural meaning and of the fact that this exemption is class – based and requires no evidence of prejudice. Over – technical interpretation is to be avoided. The application of the public interest test required by s.2(2)(b) is a sufficient bulwark against the unreasonable protection of trivial information. As to “formulation and development of policy”, those were also wide terms; they embraced information as to the factual background to a problem, giving rise to the need for fresh policy – otherwise there was no need for s.35(4). The development of policy would often be a continuing process..."

42. The IC's view expressed in the Guidance is also that " If the majority of a piece of information relates to a particular activity, any associated or incidental information also relates to that activity, even if in isolation it is not covered." We agree that some cases may require there to be a detailed consideration of whether the exemption applies to all parts of the information requested but we also agree with the Guidance that:- "The activity does not have to be the sole or even the main focus of the document (or section), as long as it is one significant element of it. However, this does not mean that a whole document is covered by the exemption just because it contains a minor passing reference to a relevant activity. In such cases only the actual reference itself is covered."

43. We agree with the FtT in The Department for Education and skills -v- the Information Commissioner & The Evening Standard EA/2006/0006 where it said :- "58... we are firmly of the view that, when asking the question, whether the minutes of a particular meeting or part of one, a memorandum to a superior or a minister or a note of advice fall within s.35(1)(a), a broad approach should be adopted. If the meeting or discussion of a particular topic within it, was, as a whole, concerned with s.35(1)(a) activities, then everything that was said and done is covered. Minute dissection of each sentence for signs of deviation from its main purpose is not required nor desirable. As acknowledged already, that reassurance is of limited value since the question of the public interest remains." position of the parties

44. Reliance by the CO on section 35(1)(a) FOIA arose after the complaint (156) and was applied to the entirety of the Draft Report. In support of the use of this exemption the CO said for example that the Draft Report related to "the formulation or development of government policy" and countering fraud from C19 activity would involve "Ministerial engagement" and a considerable amount of " Ministerial involvement" and that the review was an "important p art of discussions between officials and Ministers about the future of enforcement activity." In paras 32-33 of the re-amended response the CO said:- "32...it should be unsurprising from the terms of the request – a report on the effectiveness of NATIS’s role in investigating BBLS fraud – that any information held will be likely to concern to some degree the extent to which Ministers wish to continue with the existing NATIS role, or to take some different sort of approach: that would be the relevance of any such report, whether directly or indirectly framed in such terms. Any such consideration constitutes the formulation (or development) of government policy in relation to enforcement activity concerning BBLS fraud. The entire Report relates to that policy formulation.

33. The context of the request, and the Report, also underlines how obviously ‘live’ this issue of policy formulation or development was as at July 2024. The version of the Report held at the time of the request was in draft; the final version was not received until October 2024. The issues it addresses could scarcely be more ‘live’ throughout the period"

45. Mr Wentel refers to section 35 in his open statement at para 27ff (301). He sets out there the context in which he says the review into NATIS was being undertaken and its connection to UK government policy development. He says for example:- "27. The Review of NATIS was commissioned by the DBT Permanent Secretary to help DBT understand the options available to them. These ranged from taking steps to improve NATIS' performance but maintaining the contractual relationship, through to exiting the relationship with NATIS and seeking an alternative option to progress the BBLS criminal case load. At the point when the interim Report was provided to DBT, through to the final Report and through to the present day, these considerations remain live and being actioned. These were and still are live policy considerations to try to deliver the most effective BBLS fraud response which is a key government priority. 28 The Report on the effectiveness of NATIS's role in investigating BBLS fraud fundamentally concerned the extent to which Ministers wish to continue with the existing NATIS role, or to take some different sort of approach: that is ultimately what the recommendations PSFA went to informing." "29. The context of the request, and the Report, also underlines how 'live' this issue of policy formulation or development was as at July 2024. The version of the Report held at the time of the request was in draft as the interim Report whilst the DBT considered it and the proposed recommendations. The issues it addresses were 'live' throughout the period." "32...The Report was drafted to provide the DBT Permanent Secretary and Ministers with insights to inform policy. The Report made recommendations about which option carried the least risk based on the evidence made available to the Review team and the position as it was understood in late 2023/early 2024. That the subsequent decision took place after the provision of both the interim and final Reports underlines my concern that policy development remained 'live' throughout the period and to the present day."

46. Mr Wentel also expresses his view that in this case the exemption applies to the whole document not just parts because he says:- "30...the whole of the Report was undertaken to inform policy options. Ministerial engagement was and is still necessary on the future of counter fraud enforcement activities in respect of C-19 loan schemes. The Review remains an important part of discussions between officials and Ministers about the future of enforcement activity."

47. The Appellant says on this (122) that:- "19...Wentel claims that the review remains an important part of discussions between ministers and officials about future enforcement activity. This argument is elaborated on at point 35 and point 37. The report is likely to be highly factual, and any analysis likely to be based on the facts, rather than being a mainly policy formation document. While the “relates to” element of section 35 is wide ranging, the remoteness of this document to the process means these interests are clearly outweighed by the strong public interests in transparency."

48. The Appellant's view on the use of section 35(1) can be seen in his amended reply (120) where he says:- "9...this report is likely to be factual assessment rather than consisting of policy advice of officials. This is likely to pose a much more remote possibility of prejudice, as such factual information is much less likely to prejudice officials, than disclosure of potentially controversial advice on what policies to follow. The Cabinet Office further raises concerns about the draft nature of the report. Again, the only issues would be if there were facts that were incorrect in the report, which can be annotated by the department after release. It is also open to the department to release the final version to me to ensure that the draft version is put into proper context." our review

49. We reviewed the Draft Report. It is clear from the start of it and from its terms of reference set out in an annex who and what prompted the review of NATIS to take place and what its purpose was. From the Draft Report itself we agree with the summary in paras 27-30 of Mr Wentel's statem ent (301). We also accepted his evidence in para 31 of his closed statement. We do not agree with the Appellant where he suggests that any factual assessments in the Draft Report would not be within the section 35 exemption. It is often the case that policy formulation or development will be based on a factual analysis of the history of a situation and the live position. Such matters in that way are in our view "related to" policy formulation or development and subject to this exemption.

50. In this case in our view (as above for section 31) while considerable redaction might remove all the section 35 material, we agree that "Minute dissection of each sentence for signs of deviation from its main purpose is not required nor desirable." decision on engagement

51. Accordingly it is our view that the Draft Report relates to the development and formulation of government policy and as a result the exemption at section 35(1) FOIA is engaged in respect of it all. Section 43(2) FOIA Law

52. This qualified exemption provides that:- "Information is exempt information if its disclosure under Being a prejudice-based exemption the same considerations arise as set out for section 31 FOIA regarding harm and the risk of harm. this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it)."

53. "Commercial interests" is interpreted broadly (see for example Department for Work and Pensions v Information Commissioner & Slater [2023] UKFTT 350 para 92 and Department for Work and Pensions v Information Commissioner & Zola at 18). In the Guidance the IC says that the words "commercial interests" can cover [2016] EWCA Civ 758 ".. a wide range of harm, such as damaging a company's competitive position, reputation, customer trust, or ability to secure value for money." position of the partie s

54. In the DN the IC said (11): - "41. The Commissioner is satisfied, first, that the prejudice that Cabinet Office envisages relates to commercial interests. Second the Commissioner accepts that, for the reasons Cabinet Office gives in its submission, a causal link exists between disclosure and commercial prejudice"

55. From the CO's response (99) it appears that this was being said to apply to the whole of the Draft Report and at para 70 of his open statement of 18 July 2025 (313) Mr Wentel says that it is his view that the whole report should be exempt by section 43. However in the re-amended response dated 21 August 2025 at para 34 the CO's case is said to be that " ...section 43(2) is only claimed in relation to specific passages of the Report which properly engage the commercial interests issues." Additionally in its amended reply the IC says:- "b, The Commissioner maintains s43 applies to the parts highlighted by the Second Respondent, for reasons set out in the DN"

56. For the avoidance of doubt we have proceeded on the basis that the CO's case on section 43 is as set out in its most recent response as settled by counsel and as marked in the Draft Report in the closed bundle. On this basis this exemption is claimed for just five passages in the D raft Report (at 64CB,74CB,75CB, 116CB and 138CB) and the CO's position is that disclosure would be likely to prejudice the commercial interests of the Department and the Council.

57. In summary the CO's concern about disclosure (see for example 134, Mr Wentel's statement from para 62 and the re-amended response) is that:- (a) it would enable others to enter the marketplace to compete with NATIS and if any fair or unfair actual or perceived issues with NATIS were to be disclosed that could result in the loss of the contract with the Department. The resulting reduction of income to the Council's NATIS operation would be likely to prejudice their commercial interests and there was a:- "...desirability of protecting public funds through not prejudicing a recognised income stream of the Council, which would have to be replaced by an alternative source of income" (b) it could adversely impact the Department' "... ability to negotiate and renegotiate current and future equivalent contractual arrangements."

58. In para 67 of his closed statement Mr Wentel provided some commercial context and in open sets out his evidence of the commercial basis of NATIS' operations saying "68. While NATIS is not a company, it is still carrying out an enterprising pursuit on behalf of Thurrock Council."

59. The Appellant, in his amended response (121), says:- "10 The argument at point 35 in relation to commercial sensitivity seems to be at its heart that the government might feel pressured to take the work of NATIS back into central government, meaning that Thurrock Council would lose money, should failures in its operating model be revealed. As set out in my grounds of appeal, this is not a commercial arrangement put out to tender, but a direct award. The activities of NATIS are simply not commercial activities." and (123): - "22. In relation to the arguments put forward on section 43(2) from point 62 onwards, I invite a healthy scepticism from the Tribunal. Natis is in the process of being wound up, so any harm to its commercial interests must be viewed in that light" and in the Grounds he says in summary:- (a) that public authorities can have commercial interest but NATIS is not a private company and does not operate in the commercial market and was providing a public service. He also says (121) "The activities of NATIS are simply not commercial activities." (b) that there was no relevant commercial tender process and no competition. review

60. We reviewed the relevant parts of the Draft Report noting that the date for this issue to be tested was when the CO was dealing with the Request in July 2024. We accept the evidence given by Mr Wentel about what NATIS was asked to do for the Department, how that arrangement was meant to work and how NATIS was paid. We also note (without endorsing the accuracy of it) that in the May 2024 Times report (47) it was said that NATIS had been given £30m. We are satisfied that NATIS was carrying out commercial activities while being a part of the Council.

61. We do not accept that any issues raised by the Appellant about the process of awarding the contract to NATIS should impact our view, in this case, about the commercial nature of the relationship and its operations. We also do not accept that the Appellant's submission made in July 2025 that NATIS was being wound up is relevant to a consideration of the position in July 2024.

62. In our view the most significant harm at the relevant date would have been to the reputation and brand of NATIS (a part of the Council) which itself would be likely to be prejudicial to its commercial interests. That reputational damage alone could also (a) cause there to be a negative impact on their ability to win and/or retain other work from other parties and (b) cause NATIS to have a commercial disadvantage if and when the BBLS work were to go out to tender.

63. We do not however agree with the CO that the harm caused by disclosure would be:- (a) the ability of others to enter the marketplace as others are able to enter the marketplace at any time irrespective of disclosure. (b) the loss of the contract with the Department as that question was in the hands of the Department who were privy to the Draft Report. (c) the loss of income to the Council because if the Draft Report led to a loss of income that would not be caused by its publication but caused by its content, and any resulting decisions made by the Department.

64. We also do not conclude that disclosure would risk harm to the commercial interests of the Department. Ev en if we assume that at this time th e Department was considering the possible contracting out of the relevant services or knew it might soon be doing so we do not see anything in the relevant passages that if disclosed could make it (a government department offering a large contract) have a reduced ability to negotiate effectively. decision on engagement

65. Accordingly in our view the section 43(2) FOIA exemption does apply to those parts of the Draft Report as indicated in the annotated version. Section 42(1) FOIA Law

66. This class-based exemption, which is also qualified by the PIBT, provides that " Information in respect of which a claim to legal professional privilege....could be maintained in legal proceedings is exempt information." position of the parties

67. It is accepted by the IC in the open reply at para 2 that some of the material identified in the Draft Report in question is LPP and the exemption is therefore engaged as regard those parts but the IC takes the view that part is not LPP as claimed. This position is accepted by the CO in its email of 6 October 2025.

68. The Appellant in his email of 26 August 2025 says " I would ask in relation to the section 42 material that the tribunal carefully consider whether all elements of the material the Cabinet Office holds is subject to the exemption is covered, or whether any partial disclosures could be made. " review

69. The Draft Report contains LPP material. We agree with the description given in the re-amended response by the CO that:- "36B...In particular, the Report has an Annex which is entitled “Summary of Legal Advice” which provides an overview of legal advice provided in connection with matters falling within the scope of the review... In addition, there are a small number of references within the body of the Report to the specific legal advice commissioned and received on aspects of the issues addressed in the Report, or quoted content of that legal advice identified as such, in respect of which section 42(1) is also applied."

70. We also agree that the specific part identified by the IC is not LPP. decision on engagement

71. Accordingly, in our view, the section 42(1) FOIA exemption does apply to those parts of the Draft Report as indicated in the annotated version in the closed bundle save as identified by the IC in its closed reply of 17 September 2025 at para 2e. The PIBT

72. The PIBT at section 2(2) FOIA is that " in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information" The PIBT is tested as at the date of the initial response to the Request which in this case is on 31 July 2024 (see Montague -v- Information Commissioner and others [2023] 104). Where more than one qualified exemption applies to the same item of information the PIBT is to be aggregated. (see Department for Business and Trade v The Information Commissioner [ 2025] UKSC 27 ) .

73. We considered what was said on the PIBT by the parties and, f or the reasons that follow, we concluded that the PIBT favoured non – disclosure of the Draft Report. Public interest reasons for disclosure

74. The public interest reasons in favour of disclosure include the generic desirability of there being openness and transparency about decision making and use of public funds as it serves to promote accountability, trust in government and enhances effective public participation. More specifically the public interest reasons in favour of disclosure arose in this case because:- (a) the BBLS had a large number (1.4m) of borrowers. (b) it was part of the government's response to C19 and the pandemic and how the UK dealt with it is a matter of general public interest. (c) of the public interest in understanding why and how NATIS (itself a public body) came to be awarded the important publicly funded role of assisting with BBLS issues. (d) the BBLS lent the very substantial sum of £47bn with a government guarantee. (e) it appears that the very substantial sum of at least £1.8bn was obtained by fraud. (f) of the very substantial public interest in understanding the performance of the Department and NATIS in their role including the recovery efforts of the £1.8bn thought to have been paid out to fraudulent applicants especially as any failure to recover would result in a cost to the guarantor and thus in effect the public. (g) there is public interest in the performance of government tackling fraud generally and specifically about the fraud committed on the BBLS. (h) there is public interest in seeing how those who have committed fraud are made subject to criminal proceedings. (i) as public criticism of NATIS had begun, without disclosure there was a risk that public debate would only be partially informed. Public Interest reasons against disclosure and balance Sections 31(1) and 35(1) FOIA

75. Section 31, which we found is engaged, seeks to prevent harm to the prevention or detection of crime, the apprehension or prosecution of offenders, or the ability to carry out the relevant functions in section 31(1)(3). Set against the reasons for disclosure we noted those said to be against. We gave most weight to the public interest in avoiding the relevant harms and ensuring that those who are the target of investigations and/or might be seeking to avoid action against them are not tipped off or assisted in any way by having an insight into what NATIS was doing, what issues or challenges they may have and be working on, the resources deployed or the policies being developed by the Department. This weight was heightened for us by the very substantial total number and size of the fraudulent loans and the considerable desirability to enable the best outcome for the public in respect of them.

76. While all elements of the PIBT were important, for us the main balancing exercise was between the considerable desirability for there to be transparency about such important issues involving so much public money set against the considerable desirability (in July 2024) to ensure FOIA disclosure did not risk the effectiveness of the action underway to recover relevant loans and pursue those alleged to have been involved.

77. We accepted the CO's position and Mr Wentel's open and closed evidence about the risks involved and concluded that the balance at the relevant date was in favour of protecting the recovery and other action and thus against the risks caused by disclosure.

78. Section 35 which we found is engaged, involves information that relates to the formulation or development of government policy. Set against the reasons for disclosure we noted those said to be against such as:- (a) to prevent any actual or perceived loss of confidence in the government’s ability to enforce the law in connection with BBLS frauds (b) to provide a safe space "in which policy formulation and development can be considered by Ministers and officials without premature publicity, to which the Report is related" (c) to avoid external attention on the Draft Report that risked distracting officials away from the task of dealing with it. (d) because this policy formulation and development was a live and ongoing issue in July 2024 and the disputed material was a draft. (e) disclosure would draw “unnecessary attention” to any issues with NATIS.

79. Set against the weight of the public interest reasons for disclosure we found these arguments for non-disclosure less compelling. In particular we were not persuaded that avoiding a loss of confidence in government or preventing attention being focused on NATIS were public interest reasons that operated against disclosure. We also did not accept that if officials were distracted by publication the risk of distraction meant that the publication was against public interest when judged against the public interest reasons for disclosure.

80. However we did not agree with the Appellant that "the remoteness of this document to the process means these interests are clearly outweighed by the strong public interests in transparency (123)" because in our view the Draft Report was not remote. We also accepted Mr Wentel's evidence that the review remained live and the Draft Report was still draft even if aspects of its content was already being worked on. In our view reasons against disclosure also included that the Draft Report was dated 14 April 2024 and so not much time (relatively) had elapsed for officials to be able to consider it and time would have been needed for the safe space as described and o n balance we were persuaded that, at the date of the response, the PIBT favoured non- disclosure.

81. While the PIBT arguments for non- disclosure in respect of section 35 are, in our view, not as persuasive as they are for section 31 taken together the aggregated PIBT is clearly and substantially in favour of the maintenance of the exemptions. Sections 42(1)and 43(2)

82. For completeness we also considered the qualified exemptions that had been applied to bespoke parts of the Draft Report.

83. Section 42 FOIA is a class based exemption that, if engaged as we have found here, protects LPP material. As a qualified exemption while there is a strong public interest in the protection of LPP advice there is no presumption of it. In Department for Business Enterprise and Regulatory Reform v O’Brien & Information Commissioner [2009] EWHC 164 (QB) the court approved this approach:- "What is quite plain… is that some clear, compelling and specific justification for disclosure must be shown, so as to outweigh the obvious interest in protecting communications between lawyers and client, which the client supposes to be confidential"

84. The CO said in its re-amended response:- "36B...In the light of the inherent weight applicable to the maintenance of the LPP exemption, there is no plausible basis upon which it can be said that the public interest favours disclosure of that legal advice, in particular where the application of section 42(1) only arises if some of the substantive content of the Report is disclosed because it is not wholly exempt as per the CO’s primary case. There is no additional or specific public interest, assessed at the date of the response to the request, in undermining LPP in this context."

85. The Appellant asked on 26 August 2025 "... that the tribunal carefully consider whether all elements of the material the Cabinet Office holds is subject to the exemption is covered, or whether any partial disclosures could be made ."

86. In our view there was no strong or compelling reason why the PIBT favoured the disclosure of LPP material. In addition the LPP material in the Draft Report is detailed and specific and would be of use to those who are the subject of NATIS' work. On balance therefore we concluded that the PIBT favoured the maintenance of this exemption.

87. Section 43(2) is a prejudice-based exemption and therefore our first consideration was as regards the harm the exemption sought to prevent. In this case this is harm to the Council as described but not to the CO or the Department for the reasons given. The Appellant says about section 43:- "...there is a strong public interest in disclosing information about NATIS’ performance and effectiveness, for the reasons set out above. This outweighs any purported harm to Thurrock Council or any other body’s commercial interests, which are tenuous at best." and "with the public interest in accountability clearly outweighing any interest in NATIS to continue its current operating model without proper scrutiny."

88. At one point it appeared that section 43(2) was being applied to the entire Draft Report. In fact it is only deployed in a limited way. In our view while the harm as described would have been likely to occur very little extra information than was already known would have been revealed by the disclosure of these elements other than the fact that they appeared in the Draft Report. It would also not have materially assisted with the public interest reasons for disclosure set out above.

89. Finally, while noting that actions appear to have been taken on the basis of the Draft Report it was a draft and the Council and NATIS may have had an opportunity to suggest amendments and factual corrections to it before its finalisation.

90. In our as view as little would be gained to set against the risks of harm, on balance we concluded that the PIBT favoured the maintenance of this exemption for the few relevant passages. Section 23(1) FOIA Law

91. This absolute exemption provides that " Information held by a public authority is exempt information if it was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3). We had regard to the 14 principles set out by the UT at para 35 of Commissioner of the Police of the Metropolis v Information Commissioner and Rosenbaum These include reference to it affording the widest protection of any of the exemptions. For section 23 to be engaged there is no need to show any harm might flow from disclosure and the words [2021] UKUT 5 (AAC) . "relates to" is used in a wide sense while recognising that there could come a point where a connection would be too remote. position of the parties

92. The IC in its relevant reply indicated its agreement with the use of section 23 FOIA. The Appellant (121) in reply asked the Tribunal to scrutinise the Draft Report to see how much can rightly be said to "relate t o " the work of one of the relevant security bodies. review

93. We have scrutinised the Draft Report and noted the passages/words for which the CO asserts section 23 applies. We also had regard to Mr Wentel's closed statement from para 58 (180CB) and the 14 principles referred to above. From this we were satisfied that the body named in the Draft Report is one included in section 23(3) FOIA and what is said does relate to that body. decision

94. Accordingly, in our view the section 23 FOIA exemption does apply to the parts of the Draft Report indicated in the annotated version in the closed bundle. Decision

95. It is our decision therefore that t he DN, which considered section 31 FOIA, was in accordance with the law and to the extent that the notice involved an exercise of discretion the IC exercised it correctly. Additionally:- (a) section 35(1)(a) FOIA is engaged as regards the entirety of the Draft Report and the PIBT (as at the relevant date) is in favour of the maintenance of that exemption. (b) a ggregation of the PIBT decisions would very substantially result in the PIBT balance being in favour of the maintenance of the exemptions. (c) section 43(2) is engaged for the relevant parts of the Draft Report as indicated in the annotated version in the closed bundle and the PIBT (as at the relevant date) is in favour of the maintenance of that exemption. (d) section 42 is engaged for the relevant parts of the Draft Report as indicated in the annotated version in the closed bundle (save as referred to in paragraph 2e of the IC's reply of 17 September 2025) and the PIBT (as at the relevant date) is in favour of the maintenance of that exemption. (e) the absolute exemption at section 23 FOIA applies to those parts of the Draft Report where indicated.

96. The appeal is therefore dismissed. Signed Judge Heald Date:6 January 2026