Free Information Tribunal FOI Appeal — FOI Act 2000 s.57 + DPA 2018 (UK)

Notice of Appeal — Information Tribunal (Freedom of Information Act 2000 + DPA 2018)

First-tier Tribunal (GRC)  ·  ICO Ref IC-345621-X7Z2  ·  9 June 2026

To the Tribunal Registrar,

I, Lyra Holloway-Hassan, give notice of appeal under section 57 of the Freedom of Information Act 2000 against the Information Commissioner Decision Notice IC-345621-X7Z2 dated 12 May 2026. I appeal as the REQUESTER (the original complainant) — appealing the ICO Decision Notice on the basis that the public authority should have disclosed more / refused less. The information regime engaged is the Freedom of Information Act 2000 (FOIA) — non-environmental information. The original request was made on 4 November 2025. CRITICAL TIMING: the appeal must be received by the Tribunal within 28 days of the date the ICO Decision Notice was sent per rule 22(6)(cc) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI 2009/1976). The deadline expires on 9 June 2026. This notice is lodged within that period. The Tribunal is asked to allow the appeal under section 58 of FOIA and substitute its own decision on the disclosure / exemption analysis.

Appellant: Lyra Holloway-Hassan
Address: 47 Camden Square, London NW1 9XB
Telephone: 020 7485 9182
Email: lyra.hh@journalism.co.uk
Capacity: the REQUESTER (the original complainant) — appealing the ICO Decision Notice on the basis that the public authority should have disclosed more / refused less

Decision Notice reference: IC-345621-X7Z2
Decision Notice date: 12 May 2026
Public authority: Department for Levelling Up, Housing and Communities
Public authority address: 2 Marsham Street, Westminster, London SW1P 4DF
Information regime: the Freedom of Information Act 2000 (FOIA) — non-environmental information
28-day appeal deadline (rule 22(6)(cc) GRC Rules): 9 June 2026

Original request date: 4 November 2025
Original request summary: On 4 November 2025 I made an FOI request to DLUHC for: (1) copies of internal correspondence between DLUHC ministers and the Secretary of State for Levelling Up between 1 January 2025 and 31 October 2025 relating to the post-Grenfell residential building safety levy policy; (2) the draft impact assessments produced by DLUHC officials between 1 March 2025 and 31 August 2025 modelling the levy on developers above the £2bn turnover threshold; (3) the minutes of the DLUHC Steering Group meetings (or equivalents) at which the levy threshold was discussed. The information is sought in connection with public-interest journalism on post-Grenfell building safety reform.

Exemptions in issue:
DLUHC refused disclosure on the basis of two qualified exemptions: (1) FOIA s.35(1)(a) (formulation of government policy) for the ministerial correspondence and Steering Group minutes; (2) FOIA s.36(2)(b)(i) (prejudice to free and frank provision of advice) for the draft impact assessments. The ICO upheld the s.35 refusal in part (correspondence post 1 July 2025 when the policy was announced should be released — the policy formulation phase had concluded) but upheld s.36 in full. I challenge: (a) the ICO's upholding of s.35 for the pre-1-July-2025 correspondence; and (b) the ICO's upholding of s.36 for the impact assessments.

Exemptions engaged on this appeal:
   FOIA s.27 (international relations): not engaged
   FOIA s.31 (law enforcement): not engaged
   FOIA s.36 (prejudice to effective conduct): ENGAGED
   FOIA s.40 (personal data): not engaged
   FOIA s.42 (legal professional privilege): not engaged
   FOIA s.43 (commercial confidentiality): not engaged

The appellant relies on four grounds: (1) The policy formulation phase under s.35 had effectively concluded by April 2025 when the levy was confirmed in HM Treasury Spring Statement — the ICO failed to engage with the changed circumstances. (2) The s.36 reasonable opinion of the qualified person (DLUHC Permanent Secretary) is not supported by substantive evidence under Malnick [2018] UKUT 72 (AAC). (3) The chilling effect arguments advanced by DLUHC are bare assertion contrary to Department for Education v IC [2018] UKUT 348 (AAC) + Davies v IC + Cabinet Office [2019] UKUT 185 (AAC). (4) The substantial public interest in post-Grenfell building safety transparency — given the 72 lives lost in 2017 and ongoing implementation costs to leaseholders — overwhelmingly favours disclosure under the PIT.

The appellant addresses each exemption in issue with reference to the statutory test and leading caselaw.

(A) SECTION 36 — PREJUDICE TO EFFECTIVE CONDUCT OF PUBLIC AFFAIRS (QUALIFIED). Section 36 FOIA disengages disclosure where the "reasonable opinion of a qualified person" is that disclosure would prejudice: collective ministerial responsibility (s.36(2)(a)); free and frank provision of advice / exchange of views (s.36(2)(b)); the effective conduct of public affairs (s.36(2)(c)). Per Information Commissioner v Malnick [2018] UKUT 72 (AAC), the qualified person's "reasonable opinion" sets a threshold — but the Tribunal conducts its own PIT analysis. Per Department for Education v Information Commissioner [2018] UKUT 348 (AAC), bare assertion of chilling effect is insufficient; substantive evidence required. The DLUHC Permanent Secretary (Sarah Healey) as the "qualified person" under s.36(5)(o) issued the reasonable opinion on 19 December 2025 that disclosure of the draft impact assessments would prejudice the free and frank provision of advice to ministers under s.36(2)(b)(i). The appellant challenges the reasonableness of the opinion under Malnick [2018] UKUT 72 (AAC) — the Permanent Secretary's submission contained: (i) no specific evidence of how disclosure of impact assessments concluded months earlier would affect future advice; (ii) no analysis of comparable disclosed impact assessments in other building safety reforms (e.g. the Building Safety Act 2022 impact assessments are publicly disclosed); (iii) generic chilling-effect language indistinguishable from boilerplate. The substantive opinion threshold under Malnick is not satisfied.

Exemption matrix narrative:
The appellant does not challenge the absolute exemption findings (s.40(1) for any first-party data; s.41 confidence not engaged). The challenge is focused on s.35 (challenged via grounds 1+4) and s.36 (challenged via grounds 2-4). The ICO's analysis appears to give insufficient weight to the post-Grenfell public interest context and the conclusion of the active policy phase.

(A) STATUTORY FRAMEWORK — FOIA s.2(2)(b). For qualified exemptions, the public authority must demonstrate that the public interest in maintaining the exemption outweighs the public interest in disclosure. The default position favours disclosure where the balance is even.

(B) PUBLIC INTEREST IN DISCLOSURE. The public interest in disclosure is exceptionally strong in this case: (a) the post-Grenfell building safety reforms affect approximately 1.5 million leaseholders in mid-rise residential blocks, and the levy modelling determines who pays for remediation; (b) Parliament has continuously scrutinised the levy threshold (e.g. House of Commons Select Committee evidence sessions on 12 January 2026, 23 February 2026, 19 March 2026); (c) public commentary in The Sunday Times (3 May 2026), the Architects' Journal (8 May 2026), and Inside Housing (12 May 2026) has called for transparency on the threshold setting; (d) the leaseholder advocacy groups (End Our Cladding Scandal, Grenfell United, Leasehold Knowledge Partnership) have requested the same information; (e) Building Safety Act 2022 impact assessments and the Building Safety Levy consultation impact assessments are already in the public domain — disclosure now would not set an unprecedented standard. The Tribunal is invited to apply substantial weight to the post-Grenfell public interest.

(C) PUBLIC INTEREST AGAINST DISCLOSURE. The public authority and ICO have identified the following public interest factors against disclosure: DLUHC and the ICO identify three PIT factors against disclosure: (i) chilling effect on future ministerial frank advice — the same boilerplate argument the Tribunal has consistently downweighted per DfE v IC + Davies; (ii) ongoing implementation of the levy — the appellant submits this is contradicted by the levy being legislated in the Building Safety Levy (Designated Persons) Regulations 2024 + brought into force on 1 April 2025; (iii) commercial sensitivity to specific developers — the appellant accepts redaction of developer-identifying information would be appropriate.

(D) CHILLING-EFFECT REBUTTAL. Per Department for Education v Information Commissioner [2018] UKUT 348 (AAC), assertions of damage to candour / future advice / decision-making require concrete evidence — not bare assertion. Per Davies v Information Commissioner and Cabinet Office [2019] UKUT 185 (AAC), there is "a substantial body of case law" requiring caution before accepting chilling-effect arguments. The Tribunal is invited to apply that scepticism here. Per Department for Education v Information Commissioner [2018] UKUT 348 (AAC) (Upper Tribunal), the Tribunal noted: "Tribunals are generally sceptical of chilling effect arguments. There is a substantial body of case law which establishes that assertions of a chilling effect on provision of advice, exchange of views or effective conduct of affairs are to be treated with some caution" (citing Davies v IC + Cabinet Office [2019] UKUT 185 (AAC)). The DLUHC submission contains no concrete evidence — no examples of past disclosures that chilled future advice; no submissions from current civil servants who say they would advise differently; no specific identification of any specific advice subject to risk. The submission is bare assertion. The Tribunal is invited to apply Davies + DfE v IC scepticism and reject the chilling effect argument.

(E) TIMING + CHANGED CIRCUMSTANCES. The PIT must be applied as at the date of the public authority's response, not at the date of the original request. Time may have eroded any prejudice. The age of the information + intervening publication / events / decisions may shift the balance.

(F) APPLICATION TO THIS APPEAL. Overall PIT balance:
On the appellant's submission, the public interest in disclosure substantially outweighs the public interest in maintaining either the s.35 or s.36 exemption. The s.35 policy-formulation interest had concluded by April 2025; the s.36 chilling-effect interest is unsupported by substantive evidence. The post-Grenfell building safety transparency interest is exceptional. The Tribunal is invited to allow the appeal and substitute its own decision directing disclosure.

(A) APPLICABLE RULES. The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI 2009/1976). Key rules: r.4 case management; r.5 extensions; r.8 strike-out; r.15 disclosure; r.16 witness summons (14-day notice); r.22 notice of appeal (28-day FOI deadline); rr.23-24 ICO response; r.32 form of hearing; r.38 decisions.

(B) ICO AS JOINED PARTY. The Information Commissioner is JOINED as a party to the appeal — the appellant accordingly serves all submissions on the ICO.

(C) PREFERRED HEARING FORMAT. ORAL HEARING IN PERSON — at the GRC tribunal venue.

(D) WITNESSES PROPOSED. The appellant proposes the following witnesses: (1) the appellant herself — to speak to the public interest journalism context and what she will do with the information; (2) Geraint Davies MP (former DLUHC Select Committee chair) — to speak to the parliamentary scrutiny context of the levy threshold; (3) (subject to Tribunal direction) Dame Judith Hackitt — public interest expert evidence on building safety transparency. The appellant does not propose to call DLUHC civil servants. The Tribunal is invited to direct DLUHC to provide a senior FOI lead witness (rule 16 witness summons reserved if necessary).

(E) ESTIMATED HEARING LENGTH. The appellant estimates a hearing length of 2 day(s). Standard track FOI appeals: 1 day. Complex multi-exemption: 2-3 days.

(F) UPPER TRIBUNAL ONWARD APPEAL — TCEA 2007 s.11. Either party may apply for permission to appeal the GRC Tribunal decision to the Upper Tribunal (Administrative Appeals Chamber) on a point of law only, with permission of the GRC Tribunal or (if refused) the Upper Tribunal. Permission application within 28 days of decision. Onward Court of Appeal route subject to the second-tier appeals test per R (Cart) v Upper Tribunal [2011] UKSC 28.

Procedure narrative:
The appellant invites the Tribunal to direct: (a) ICO joined as 2nd respondent (already on file); (b) DLUHC discloses the redacted internal documents to the Tribunal in closed bundle; (c) appellant given access to a confidentiality-ring open bundle; (d) skeleton arguments exchanged 14 days before hearing; (e) 2-day hearing in person at the Field House Tribunal venue (London). The appellant reserves the onward Upper Tribunal appeal route under TCEA 2007 s.11 + Cart [2011] UKSC 28 second-tier test.

The appellant encloses with this notice of appeal:

   (a) a copy of the ICO Decision Notice (ref IC-345621-X7Z2) dated 12 May 2026;
   (b) a copy of the original FOI / EIR / DPA request dated 4 November 2025;
   (c) the public authority's response and internal review outcome (where in possession);
   (d) the ICO's case correspondence relied on (where in possession);
   (e) any disputed disclosure where partial disclosure was made;
   (f) supporting evidence on public interest (commentary, parliamentary references, comparable disclosures by other public authorities, contemporaneous media coverage);
   (g) skeleton argument applying Malnick + DfE v IC + Davies + Magherafelt + (EIR cases) APPGER caselaw.

YOURS FAITHFULLY,