A friend of me alerted me on 1 May 2024 that a Call for Input was published by the Minister for Women and Equalities, back then Kemi Badenoch. The call was titled: Call for input: Incorrect guidance on single-sex spaces and gender self-identification. This title is, in my opinion, quite suggestive. But let's not fill in the blanks for them. They probably identified a problem. Let's see what Kemi Badenoch says about it herself:

In some cases organisations believe they are required to allow self-identifying transgender people to access these services. Now, as part of raising awareness and to understand how well single-sex spaces are maintained, Kemi Badenoch is calling on the public to submit their examples to the Government.

"Single-sex spaces are essential for ensuring privacy and dignity for women. I do recognise, however, that the law in this area is complex, and I know that some organisations are confused and afraid of backlash if they are seen to get it wrong.

So I am asking people to submit real-world examples of organisations using incorrect guidance, so that our policymaking continues to tackle any confusion and we ensure single-sex spaces are maintained."

Apparently the problem is that certain organisations are confused. I must admit that I do not see how admitting transwomen (who are women too) would damage the dignity of women. However, rather than make assumptions, I requested background information on this call for input. Luckily the UK has a quite decent Freedom of Information Act (FOI).

The Freedom of Information Act, in simple terms, allows any person to request information from bodies that fall under the act, of which the Cabinet Office (where this call for input was published) is one. I used that right to send them the following request on the same day as the call for input was published:

I wish to learn how this call for input came to be, and which deliberations were made which culminated in it being published in its current form. For that reason, I hereby request the following information:

1. Any document that relates to the realisation and publication of aforementioned call for input, including, but not limited to drafts, emails, notes, audio and video recordings, including any document regarding whether the call for input should be created in the first place;

2. Any expert consultation, or any other input by an internal or external party regarding this call for input in any recorded form, including, but not limited to drafts, emails, notes, audio and video recordings;

3. Any document that relates to cases relating to it being wrongly suggested that people have a legal right to access single-sex spaces and services according to their self-identified gender is a problem, in any recorded form, including, but not limited to drafts, emails, notes, audio and video recordings;

4. Any document that relates to adverse effects of access to single-sex spaces by individuals where their self-identified gender does not match their sex which was used as a foundation, base, or input for aforementioned call for input.

It looks like a long request, but it basically asks for any communication regarding the call for input, the expert reviews, and documents regarding this being a problem in the first place.

This is when the waiting game begins. After 20 working days I got an extension for another 20 working days:

Okay, some part may be subject to Section 36 of the Act. Basically, Section 36 concerns: might this damage the State so much that the public interest is in favour of withholding this information rather than publishing it? Maybe parts of it are. The extension was not fully unexpected, albeit slightly annoying.

Another 20 working days and the response comes in: all information falls under Section 36. That was a bit of a surprise, and I disagree with the assessment. The response is also rather vague with the reasons why this would fall under Section 36, whereas the Information Commissioner's Office (ICO) is quite clear that reasons for engaging Section 36 need to be specific, and not used as blanket rulings.

I disagreed with this assessment, and I requested an internal review:

I disagree with the refusal based on section 36(2)(b)(i), 36(2)(b)(ii), and 36(2)(c) for the following reasons:

1. I do not believe that the publication of the deliberations to publish or not to publish this call for input would have a chilling effect, i.e. inhibit the processes of providing advice and exchanging views. As the call for input is now published, I believe the issue can no longer be considered "live" and the process is no longer ongoing. Assuming the publication followed the appropriate procedures, I do not see how its publication could have a chilling effect on future processes. Citing the Information Commissioner's guidance: "civil servants and other public officials are expected to be impartial and robust when giving advice, and not be easily deterred from expressing their views by the possibility of future disclosure. The possibility of future disclosure could actually lead to better quality advice." I strongly believe that applies here as well.

2. Assuming the call for input was published according to the appropriate procedures, the disclosure of the communication surrounding that should not prejudice the effective conduct of public affairs on any body or the wider public sector. I thus believe the balance of the public interest is thus in favour for this information to published.

Please carry out an internal review of the handling of my request and consider changing your position.

I also made another FOI request, a so-called "meta-FOI request", about the handling of the previous FOI request. After 20 working days that request got an extension because they have to do a public interest test as Section 36 might apply. I have an inkling I already know where this is going...

A couple more working days pass by and I get a response to my request for internal review. They uphold the original refusal, but a couple of new things are now included in the response as well:

1. They now claim they do not have the information requested in point 3 and 4 of the original request;

2. There has been involvement from special advisors and legal;

3. They claim there is less public interest due to it being done under the Sunak administration;

4. They claim it has less public interest as it does not concern the forming of new policy;

5. Most of the arguments regarding why not to publish it seem to revolve around the chilling effect;

6. Other departments have been involved as well.

These are all interesting factoids, but not reasons to not publish any information. I also have my severe doubts there is not any document for point 3 and 4 - if that is indeed the case, then I think that would be even more interesting, as that would imply that they have no documents relating to there being a problem in the first place.

Because after the internal review the process at the Cabinet Office is now done (although, if there were another option, I doubt it would be fruitful), I made a complaint at the ICO:

I accept that parts are exempt under section 40(2). However, I challenge the application of the exemption of section 36 to the entirety of the requested information. I also challenge the notion that the Cabinet Office does not hold information on part 3 and 4 of the request.

I believe the weights attached to the public interest test insufficiently take the general public's interest in transparency into account. I do not believe that the call being made by a previous government would strengthen the argument to withhold information, nor do I see how the fact that it was not meant for the formation of government policy is particularly relevant. I also believe that too much weight is given to a potential chilling effect, as civil servants, officials, and other government departments should be aware that what they are doing could become public. I understand that parts such as names may be omitted under exemption 40(2) – personal data is not the goal of this request. The response to the request for internal review seems to imply that only by remaining opaque public affairs can be effectively conducted, which goes against the aim of the Act.

The claim that no information is held for part 3 (and 4) of the request strikes me as unlikely, as it requests the basis on which the call for input was created and published. Deducing the kind of communications that must have taken place based on the response to the request for internal review (communication between ministers and special advisors, legal advisors, and civil servants), I find it highly likely that at least some information must exist within the Cabinet Office. If this information does in fact not exist, I think it strengthens the public’s interest in the release of the information requested in parts 1 and 2.

Concluding, I believe the outcome of the PIT insufficiently takes the general interest into account, and I believe there is at least some data for parts 3 and/or 4 of the request.

Simultaneously with the request for an internal review, I made a meta-FOI request to the Cabinet Office requesting documents regarding the handling of this FOI request. That meta-request has identifier FOI2024/08728. The deadline has been extended on grounds that some parts may be subject to Section 36.

Throughout the response in the internal review, it strikes me that the exemptions are applied rather liberally. I see arguments being made regarding why the public interest is reduced rather than why the exemptions mean this information cannot be made public. The only real argument against publication seems to be the chilling effect and it impeding free and frank discussion and decision making, but without clear specification how that would apply to this case specifically (it seems that the explanation given for applying Section 36(2)(b)(i), (ii), and (2)(c) can apply to any case pretty much verbatim). I believe that from a “publish, unless” point of view, there is insufficient argumentation why this information should be withheld. I also do not believe all documents in the, in my opinion, quite clearly specified request would fall under this exemption.

I fully understand the withholding information under Section 40(2). I cannot form an opinion on the application of Section 42, as I do not know which documents this would concern.

The ICO's guidance for the application of the chilling effect argument is quite clear, which makes me hopeful of my case:

Arguments under s36(2)(b)(i) and (ii) are usually based on the concept of a ‘chilling effect’. The chilling effect argument is that disclosure of discussions would inhibit free and frank discussions in the future, and that the loss of frankness and candour would damage the quality of advice and deliberation and lead to poorer decision-making. Tribunals are generally sceptical of such arguments.

Five days after my complaint to the ICO I got a confirmation. Now it's a waiting game to see what the case officer at the ICO thinks of my case.