On 4 October 2023, I asked the Post Office to disclose the fee notes for Lords Grabiner and Neuberger under the Freedom of Information Act. I thought it would be interesting to know just how much public cash the Post Office used to spend on their advice, which informed the Post Office’s decision to demand Mr Justice Fraser recuse himself as managing judge of the Bates v Post Office litigation .

On 20 Dec 2023, the Post Office refused to hand over the fee notes. On 28 Dec 2023 I asked the Post Office to review their decision (giving various reasons as outlined below).

Today, a full five months later, and within minutes of Lord Grabiner finishing his evidence to the Post Office Horizon IT Inquiry, the Post Office informed me they were still not going to give me the information I asked for. “We apologise for the delay in responding”, they wrote. Yeah, right.

Here is their letter.

11 June 2024

Dear Nick Wallis,

Internal Review under the Freedom of Information Act IR2023/00719

I am writing in response to your request for an Internal Review of Post Office Limited’s (“Post Office”) handling of your recent request for information under the Freedom of Information Act 2000 (“FOIA”). Please accept my apologies for the delay in providing a response.

In your original request for recorded information under case reference FOI2023/00578 received by Post Office on 4 October 2023, you requested the following information:

“Please could you provide, under FOIA, the fee notes from Lord Grabiner and Lord Neuberger’s chambers for the work undertaken in 2019 on the recusal application to remove Mr Justice Fraser as managing judge from the Bates v Post Office litigation. It would be useful to know how much they were paid and the nature of the work they charged for.”

Post Office responded to you on 20 December 2023 stating that the requested information was being withheld under sections 40(2) and 43(2) of the FOIA, relating to personal data and commercial interests, respectively, and that disclosing the fee notes (constituting the named individuals’ personal and commercial data), would be likely to prejudice their and our commercial interests as well as infringe on their personal-data rights.

On the 28 December 2023, you contacted Post Office to request an Internal Review of its decision to withhold the requested information under subsections 40(2) and 43(2) of the FOIA.

A copy of the body of your email is provided below:

“Thanks for the response. I would like to request a review of your refusal (dated 20 December) to provide the information requested in my original email, dated 4 October 2023 Lord Grabiner’s fees have been disclosed by public authorities on at least two occasions. At the request of an MP, this letter was written by the Bank of England:

https://www.parliament.uk/globalassets/documents/commons-committees/treasury/150317-Anthony-Habgood-Liquidity-Auctions.pdf

And at the request of a journalist, this information was made public by the Bank of England:

https://committees.parliament.uk/writtenevidence/56673/html

From the information above, we can see Lord Grabiner was paid £1000 an hour (ex VAT) for work conducted in 2014. Given there is precedent in disclosing Lord Grabiner’s fees both to parliament and to a journalist under FOIA which does not seem to have harmed either Lord Grabiner or the Bank of England, your argument about section 43(2) of the Act rather falls away, unless you can demonstrate how disclosing Lord Grabiner’s and Lord Neuberger’s 2019 fees might prejudice Lord Grabiner’s, Lord Neuberger’s or your commercial interests.

On the issue of Section 40(2) – data protection – I am not asking for personal data, I’m asking for the amount Lords Grabiner and Neuberger charged you and what they charged you for. This is not personal information. If the fee note contains personal information, please either feel free to redact it OR provide the information I have asked for, without giving me the actual fee note.

I suspect you are trying to hide behind a spurious argument to protect the reputation of your organisation, rather than comply with the spirit of Freedom of Information law. Please acknowledge this email immediately and please provide a substantive response by midday on Friday 5 Jan.”

In line with the requirements of the FOIA and the associated Code of Practice, we have carried out an internal review of your request for information and the way your request has been handled by the Information Rights Team in accordance with the FOIA.

Having considered your original request afresh, while taking careful note of the comments in your request for an internal review, as well as consulting with colleagues in the business, the Post Office Review Panel considers that the Information Rights team has appropriately responded to your request in accordance with the FOIA.

You contend that Post Office has misapplied the relevant provisions of the FOIA because: (a) if the fee notes issued to Post Office by the named individuals contain personal information, they should be redacted and then published; and (b) some other fee notes issued by one of the named individuals had been published by some other public authorities in the past without causing harm to anybody. The Post Office Review Panel has reviewed the handling of your request and considered each point you raised which I have set out below:

a) Request to disclose the fee notes after redacting personal information

We maintain that disclosing the fee notes will violate the absolute exemption under sections 40(2) and 40(3A) of the FOIA because they constitute personal data in their entirety. These sections exempt personal data from disclosure if that information relates to someone other than the applicant, and if disclosure of that information would breach any of the data protection principles in Article 5(1) of the UK General Data Protection Regulation (GDPR).

We consider that disclosure of this information is likely to breach the first data-protection principle, which provides that personal data must be processed lawfully, fairly, and in a transparent manner. Disclosure would not constitute ‘fair’ processing of the personal data because the named individuals would not reasonably expect their personal data to be disclosed in relation to this request for information.

Our decision is supported by section 3(2) of the Data Protection Act 2018, which defines personal data as “any information relating to an identified or identifiable living individual”. You have already identified and named the individuals, and the fee notes clearly relate to them because they had issued them in the first place in respect of their legal work for Post Office in 2019. As the whole fee notes constitute personal data, nothing will be left after redaction. And even if anything remains, it will serve no useful purpose because their itemised contents (the essence of your request) would have been redacted, including the amounts charged for the work done.

b) One of the named individual’s fee notes had been disclosed by other public authorities without harm in the past

As the fee notes are itemised, legal-work bills issued to Post Office by the named individuals, we maintain our decision that they constitute commercially sensitive data and are exempt under section 43(2) of the FOIA, relating to information which would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).

In applying this exemption, we have had to balance the public interest in withholding the information against the public interest in disclosure. We recognise that there is a public interest in disclosure of the fee notes as this helps to promote transparency in Post Office business and reassurance about the way public money is being spent.

However, there is a strong public interest in withholding the information as it would likely, if disclosed, prejudice the commercial interests of Post Office, the named individuals or, both.

Disclosure of this information may lead to future services being commercially exploited by third parties as the fee notes would weaken Post Office’s ability to negotiate better value for money contracts. It would, therefore, not be in the public interest to disclose information if Post Office would be unable to operate in a fair marketplace regarding the competitive dialogue procedure and are commercially damaged by the release of the information.

I am sorry not to have been able to provide you with the information you seek on this occasion. If you remain unhappy with the handling of this request, you also have a right to appeal to the Information Commissioner who can be contacted at the address below:

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF
Telephone: 0303 123 1113
https://ico.org.uk

Yours sincerely

Information Rights Team
information.rights@postoffice.co.uk

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