George Osborne, Nigel Lawson and FOIA – political vs official information

January 20th, 2014 by Robin Hopkins

Government ministers wear two hats (apart from Vince Cable – he seems to like hats, and probably has quite a few). They are public officials, but they are also party politicians. Both of those activities are likely to generate recorded information. FOIA extends to the official information, but not the party political. This is well established in principle, but not straightforward to apply, since the two categories will often overlap. It is also surprisingly untested before Tribunals. Michael Gove was due to test the principle in a 2012 appeal, but that was withdrawn.

The issue has now been considered by the Tribunal in Brendan Montague v IC and HM Treasury (EA/2013/0074): 029 070114 Final Decision EA-2013-0074. The information in dispute was a record of a telephone conversation which took place on a Sunday morning in September 2011 between the Chancellor of the Exchequer, George Osborne, and one of his predecessors, Lord Lawson.

The ICO’s position (and that of HMT) was that some of that information was predominantly party political in nature and was thus not held by HM Treasury for FOIA purposes. The remainder was exempt under section 35(1)(a), i.e. insofar as official business was being discussed, it related to the formulation or development of government policy, and the public interest favoured maintaining the exemption.

The Tribunal disagreed on the first point: while it accepted the principle, it had “no hesitation” in concluding that all of the disputed information in this case was held by HMT for official purposes rather than Mr Osborne’s party-political ones. It was not attracted by dissecting and partitioning the record between the party-political and the official in this instance, and it favoured a restrictive approach to a principle by which information could be taken outside of FOIA’s reach.

On the section 35(1)(a) point, the Tribunal agreed that there was a need for a safe space, given the high-level economic policy issues – including concerning the banking sector – which were being discussed. It was satisfied that the disputed information did not indicate that any impropriety or lobbying was at play.

I appeared for the ICO; my colleague Julian Milford appeared for HMT. No further analysis from me, given my involvement in the case, but I post it here because of the relative novelty of the political/official information point which, one suspects, will rear its head in other cases in future.

Robin Hopkins @hopkinsrobin

Blair, Bush, Iraq, oil: two new Upper Tribunal decisions

July 2nd, 2013 by Rachel Kamm

The Upper Tribunal has handed down two decisions on Iraq and section 27 FOIA, which raise some interesting procedural points - FCO v Information Commissioner and Plowden GIA/2474/2012 and Cabinet Office and Information Commissioner v Muttitt GIA/0957/2012.

In Plowden, the disputed information was a letter which was relevant to a telephone call on 12 March 2003 between Tony Blair and George Bush during which it was said that they had agreed to say that it was the French who had prevented them securing a UN resolution. The Information Commissioner had ordered the FCO to disclose the information provided by Mr Blair to Mr Bush, but not also the information provided by Mr Bush to Mr Blair. The Tribunal broadly agreed with the Information Commissioner, deciding the appeal under sections 27(1) (international relations) and 35(1)(b) (formulation of Government policy) of the Freedom of Information Act 2000. The Upper Tribunal first considered two preliminary matters, which are of general importance:

  1. Closed hearings. Judge Jacobs found that he could have set aside the Tribunal’s decision on ground that evidence had been given in closed session which could have been given in open session. He emphasised that as much evidence as possible should be given in open session and that, after evidence has been given in closed session, the other party should be told of any evidence that could properly be disclosed (paragraph 10).
  2. Respect for the Tribunal’s expertise. The Upper Tribunal generally will be reluctant to interfere with the (specialist fact-finding) First-tier Tribunal’s assessment of the public interest (paragraph 11). However, less respect will be due where the Tribunal does not have relevant specialist knowledge, for example in relation to the diplomatic consequences of disclosure (paragraph 12).

Having dealt with those preliminary issues, Judge Jacobs went on to set aside the First-tier Tribunal’s decision. It had failed to take account of the benefits of disclosure when assessing the public interest. It had also erred in considering the information line by line, instead of as a package; it was unrealistic to isolate one side of a conversation from the other. The appeal was remitted to the First-tier Tribunal for rehearing. To comply with Article 6 ECHR, that rehearing will be a full reconsideration of the issues which were before the Information Commissioner and it will not be limited to arguments raised by the appellant (paragraph 18).

Judge Jacobs had considered section 27 (international relations) a month earlier, in the Muttitt case. Again, this raised a preliminary issue of general procedural importance. Judge Jacobs found that the parties were not entitled to rely on the reasons given by the First-tier Tribunal for refusing permission to appeal (paragraph 4). These did not supplement the original reasons given by the Tribunal on determining the appeal, which was the decision under challenge. Turning to the substantive issues in the appeal, the disputed documents related to a vist by Mr Blair to Iraq in May 2006. Judge Jacobs found that the Tribunal had erred in law when ordering disclosure, in that it had failed to take into account the nature of the information (in contrast to its content). Reading the First-tier Tribunanl’s reasons as a whole, either it had failed to take account of the circumstances in which the documents came into existence or it had failed to give adequate reasons for its analysis of the information in light of those circumstances.  Judge Jacobs set aside the decision and remitted it for a rehearing of all of the issues raised by the appeal.

In Plowden, Julian Milford of 11KBW was led by James Eadie QC and represented the FCO, with Robin Hopkins of 11KBW representing the Information Commissioner.  In Muttitt, Julian Milford represented the Cabinet Office, Robin Hopkins represented Mr Muttitt and Ben Hooper of 11KBW prepared a written submission on behalf of the Information Commissioner.

Rachel Kamm, 11KBW

Right to withdraw children from sex education classes

June 1st, 2012 by Robin Hopkins

Under s. 405 of the Education Act 1996, any parent has the right to withdraw a child from sex education at a maintained school up to the age of 19, except to the extent that the subject is covered in a science lesson that forms part of the national curriculum. On 5 November 2009, the Labour government announced that a proposed new bill, the Children Schools and Families Bill would include a provision that would remove a parent’s right of withdrawal once a child had reached the age of 15 years. The next day, the Family Education Trust made a FOIA request for all correspondence, notes and reports on this issue. This was refused. The proposed legislative change was abandoned when the Coalition government came to power in May 2010. The requester made the same request again, seeking only information created prior to May 2010, i.e. under the last government. The Department for Education again refused, continuing to rely on s. 35(1)(a) of FOIA (formulation or development of government policy). The requester’s appeal to the Tribunal concerned the public interest balancing test only. The appeal in Family Education Trust v IC and Department for Education (EA/2011/0244) was dismissed.

Three points are of interest as regards the public interest in maintaining the exemption for the formulation and development of government policy.

First, the appellant argued that there had been a lack of transparency about this decision. The Tribunal thought this a valid type of argument in general: it could “envisage cases in which public dissatisfaction with the rigour or comprehensiveness of a public consultation may add weight to the public interest in having information disclosed”. This did not, however, have purchase on the facts of this case.

Secondly, what of the fact that the relevant provision had been abandoned during the “wash up” of outstanding legislative business immediately before the May 2010 election? The appellant said this meant no ‘safe space’ was then needed, as policy development on this issue was no longer live (this was raised as a public interest argument, but it seems to me it could equally well be an argument against the engagement of s. 35(1)(a) in the first place). Again, on the facts this point did not have force, as the issue remained live after the election. The Tribunal did, however, add this note of caution:

“It does not follow, from our conclusion on this aspect of the case, that the period during which the “safe space” must be protected will be without limit. Some elements of the public debate on sex and relationship education may be perennially controversial but, in the event of a further information request being made at any time in the future, it will be necessary for the Department to consider the state of policy development at that time.”

Thirdly, the Department also argued that there was a public interest in protecting from disclosure contributions made by those consulted on policy matters in this area. The Tribunal gave this factor less weight, “in that those submitting views with the intention of influencing policy decisions by government should in most cases accept that the consultation process will be conducted in public view. We nevertheless accept that a degree of protection may be required in the context of a particularly contentious issue, such as the right of withdrawal and that, had we been inclined to order to disclosure generally, it might have been appropriate to make special provision for some elements of the consultation process.”

Robin Hopkins

EXTRAORDINARY RENDITION

April 22nd, 2012 by Rachel Kamm

Robin Hopkins alerted readers recently to the FTT’s decision on a set of requests made by the All Party Parliamentary Group on Extraordinary Rendition (“APPGER”) to the Foreign & Commonwealth Office: APPGER v Information Commissioner and the Foreign and Commonwealth Office EA/2011/0049-0051.

The Tribunal describes  APPGER as concerned in this case to get to the truth of the UK’s involvement (if any) in extraordinary rendition, which is the extra-judicial transfer (usually across state boundaries or between authorities within them) of a detained person for the purpose of interrogation (often in circumstances where they face a real risk of torture). APPGER’s requests were considered together and related to various individuals and concerns:

  1. Mr Bisher al-Rawi and Mr Jamil el-Banna were detained under the Terrorism Act at Gatwick Airport in November 2002 but, having been held and questioned for a few days, were released and flew to the Gambia. There were some communications between the UK and US authorities about the men. They were arrested by the Gambian authorities on arrival in the Gambia, transferred into US custody, flown to Afghanistan and then detained in Guantanemo Bay from 2003 until 2007. Some of APPGER’s requests were an attempt to find out more about the UK’s involvement in the rendition of these men.
  2. Mr Binyam Mohammed was seized in Pakistan in 2002, rendered to Morocco, transported to Afghanistan and then transferred to Guantanemo Bay where he was held from 2004 until his charge in 2008. The US Government did not challenge his account of brutal treatment. Some of the APPGER requests relate to the FCO’s knowledge of the treatment of Mr Mohammed.
  3. On 4 February 2009, the Divisional Court concluded that it was not in the public interest to disclose information in  passages redacted from a judgment relating to Mr Mohammed because of the continuing threat by the US Government in a letter dated 21 August 2008 that disclosure was likely to result in serious damage to US national security and could harm existing intelligence-sharing arrangements between the US and UK Governments. The media published allegations that the letter had been solicited by the FCO from the US State Department. Some of APPGER’s requests were for information relevant to these allegations.

The FCO had provided some information in response to APPGER’s requests. In relation to other information, it confirmed that it held information falling within the scope of the requests but relied on exemptions in sections 23(1), 27(1)(a), 31(1)(a), 31(1)(b), 32(1), 35(1)(a), 35(1)(b), 40(2) and 42(1) FOIA. In relation to parts of the requests, the FCO claimed that the duty to confirm or deny whether it held the information did not apply by virtue of section 23(5) and 24(2) FOIA.

Turning to the exemptions:

Section 23 - absolute exemption for information directly or indirectly supplied by the security services or relating to the security services

The Tribunal considered the test for information falling within the scope of section 23(1). This provides for an absolute exemption for information which was directly or indirectly supplied to the public authority by a specified body (e.g. the security services) or if it relates to any of those specified bodies. Looking at the question of supply, the Tribunal found that it is a question of fact on the balance of probabilities whether information had been directly or indirectly supplied by the security services to the FCO and it was not a requirement that the security services had intended to supply the information to the FCO. As for information relating to the security services, the Tribunal found that it had to apply a broad but purposive approach and decide whether as a matter of fact on the balance of probabilities the content of the information was ‘something to do with’ the security services (subject to a remoteness test). The Tribunal found that the FCO was entitled to rely on section 23(1) in this case and it commented that the FCO could have claimed the exemption for even more information than it had done.

APPGER then submitted that this interpretation of section 23(1) resulted in a breach of the right to receive information in Article 10 ECHR. Regular readers of this blog will be familiar with the arguments that have been run in the domestic courts (see posts here, here and here). On the current authorities, there would be no breach of Article 10 ECHR even though section 23(1) FOIA is an absolute exemption. However, APPGER asked the Tribunal to stay its decision on this issue, given that issue will be considered by the Supreme Court again in the Kennedy v Charity Commission appeal. The Tribunal refused to stay the issue in this case; it found that it was bound by the Court of Appeal decision in Kennedy (applying the Supreme Court decision in Sugar) and that APPGER could preserve its position by appealing to the Upper Tribunal. It commented that in any event, the absolute exemption in section 23(1) FOIA was justified under Article 10(2).

The Tribunal commented on the Information Commissioner’s approach to this issue, given that he had not seen the disputed information whereas the Tribunal had spent two days establishing the facts. The Tribunal commented that it should not instruct the Commissioner how, in general, he should conduct his investigations but it noted that it had some reservations and it recommended that the Commissioner’s office should take note of how the Tribunal had had to establish the facts in this appeal.

Sections 23 and 24 – the duty to confirm or deny

The FCO had refused to confirm or deny whether it held some of the information requested. It followed its usual approach of relying on both section 23(5)  and also on section 24(2) FOIA. Section 23(5) is an absolute exemption which applies where complying with the duty to confirm or deny that information is held would involve the disclosure of information which was directly or indirectly supplied to the FCO (in this case) by the security services or information which relates to the security services. Section 24(2) is a qualified exemption where information did not fall within section 23(1) and where an exemption from the duty to confirm or deny was required for the purposes of safeguarding national security.

The FCO recognised that it could not rely on this exemption if it had already been officially confirmed in the public domain that the security services were involved in relation to a particular request. APPGER challenged the FCO’s reliance on section 23(5) FOIA in this case. The Tribunal considered what information had been officially confirmed in the public domain and found that the public information relied on was generally broader or different to the scope of the request or said nothing about what had been held by FCO as at the date of the request.

APPGER also challenged the FCO’s dual reliance on section 23(5) and section 24(2). APPGER argued that the FCO had to decide which of these applied, given that section 24(2) only applied if the information in question was not exempt by virtue of section 23(1). The Tribunal rejected this argument and found that the FCO was entitled to refer to both sections when refusing to confirm or deny whether it held information. The provisions were not mutually exclusive.

Section 27 – engagement of the qualified exemption for international relations

The FCO relied on the exemption in section 27(1) for information if its disclosure would or would be likely to prejudice relations between the UK and any other State. The Tribunal adopted the approach in Hogan and Oxford City Council v Information Commissioner [2011] 1 Info LR 588, EA/2005/0026, EA/2005/0030Gilby v Information Commissioner and FCO EA/2007/0071 and APPGER v IC and MoD [2011] UKUT 153 (AAC). The exemption will be engaged if there is a real and significant risk (even if it is less than a probability) that disclose would prejudice relations with another State, in the sense of impairing relations or their promotion or protection. Appropriate weight needs to be attached to evidence from the executive about the prejudice likely to be caused. The Foreign Secretary has unrestricted access to full and open advice from his experienced advisors and is accordingly better informed and has far more relevant experience than any judge for this purpose. In this case, the Tribunal had heard evidence from a member of the Diplomatic Service who was a Senior Civil Servant and there was no evidence to seriously contradict his view about the prejudice which would (in some cases) or would be likely to (in other case) prejudice international relations (notwithstanding the clear and strong public interest in issues around extraordinary rendition).

Section 35 – engagement of the qualified exemption for the formulation and development of Government policy etc.

The Tribunal then considered the qualified exemption where information held by a Government department relates to the formulation or development of Government policy, Ministerial communications, the provision of advice by Law Officers or the operation of any Ministerial private office. The Tribunal considered the appropriate weight to be given to each of these four categories of information.

Section 42 – engagement of the qualified exemption for legal professional privileged information

The Tribunal found that the FCO had properly applied this exemption and it commented that the FCO could in fact have claimed that more information was subject to legal professional privilege.

The balance of the public interest

The Tribunal considered the balance of the public interest in relation to the information which engaged one or more of the qualified exemptions. It did not have to apply any public interest test to the information which engaged the absolute exemptions in section 23(1) or section 23(5).

The Tribunal found that there was a very strong public interest in transparency and accountability around the application of the Government’s public policy opposing extraordinary rendition. This interest was heightened where Ministers have had to correct earlier statements made to Parliament about the application of the policy and where there were claims that US extraordinary rendition had helped to foil terrorist plots in the UK. There was a particularly weighty public interest in knowing whether the Government has been involved, and if so the extent of that involvement, in the detention of British nationals and residents, their rendition to Guantanamo Bay and the attempts by the Government to secure their release. There was a strong public interest in knowing whether there was any impropriety by the UK Government in relation to the letter of 21 August 2008 to the Divisional Court.

On the other hand, there was a very strong public interest in the maintenance of the ‘control principle’ governing the use of secret intelligence information supplied to the UK through security and diplomatic channels, so as not to prejudice the supply of intelligence forming part of a ‘mosaic’ enabling a picture of potential terrorist activity, or threats to national security or UK interests abroad to be built up and countered. There was an even weightier public interest where the US was involved, as the UK’s most important bilateral ally and provider of much security information. There was a public interest in protecting from disclosure deliberations within Government on the formulation and development of policy. The strength of that interest depended on whether there was a need to maintain a safe space for such deliberations. There was a weightier public interest for protecting Ministerial communications in relation to detainees at Guantanamo Bay, given the sensitivity of the matter in diplomatic relations with the US. There was a strong public interest in maintaining the expectations of confidence for diplomatic exchanges. There was an inherently strong public interest in maintaining legal professional privilege including Law Officers advice, which was particularly weighty when litigation was continuing on closely related matters.

In relation to the requests involving international relations, the Tribunal found that the public interest in maintaining the exemption outweighed the public interest in disclosure. The public interest went to the willingness of the US to share with the UK all types of secret intelligence material. The reasonableness of the US attitudes was not part of the balancing exercise; it was the fact of the existence of those attitudes which mattered. The Tribunal had considered in closed session whether there was any evidence of impropriety by the FCO in relation to the letter of 21 August 2008 to the Divisional Court and found that there was no such evidence. In relation to other information, the Tribunal satisfied that there was nothing which would add to the public knowledge of the mistreatment of Mr Mohamed. If there had been new information, this would have weighed significantly in striking the balance, but there was not.

In relation to the requests involving legal professional privilege or Law Officers advice, the Tribunal found that the balance of the public interest was in favour of maintaining the exemptions in sections 42 and section 35(1)(c). At the time of the requests, civil claims were being pursued against the Government by a number of former detainees. It would undermine the relationship between lawyer and client if privileged material was released in this case. Counsel for the Government are when necessary provided with access to highly confidential information in order to provide the most comprehensive advice. The advice requested in this case could not reasonably be regarded as old or no longer live.

In relation to the requests involving the formulation and development of Government policy, the Tribunal found that the balance of the public interest was in favour of maintaining the exemption. It took into account that the policy regarding the release and return of detainees in Guantanamo Bay was very much live at the time of the requests, that policy continued to develop and the disputed information included drafts which were not necessarily the Government’s final position. There was a very strong public interest in the Government having a safe space to develop this policy.

Decision

The Tribunal upheld the Commissioner’s decisions, except where the Commissioner conceded to points raised by the FCO in a cross-appeal and except in relation to four documents where no exemption applied.

Finally, this post could not omit  mentioning that11KBW’s chief Panopticonner Robin Hopkins represented the Information Commissioner, Joanne Clement (11KBW) acted pro bono to represent APPGER, and Karen Steyn (also of 11KBW) and Julian Blake represented the FCO.

Rachel Kamm, 11KBW

CHILLING EFFECT, SAFE SPACE AND THE NHS RISK REGISTERS

April 15th, 2012 by Robin Hopkins

In a recent post, Panopticon brought you, hot-off-the-press, the Tribunal’s decision in the much-publicised case of Department of Health v IC, Healey and Cecil (EA/2011/0286 & EA/2011/0287). Somewhat less hot-off-the-press are my observations. This is a very important decision, both for its engagement with the legislative process and for its analysis of the public interest with respect to section 35(1)(a) of FOIA (formulation or development of government policy) – particularly the “chilling effect” argument. At the outset, it is important to be clear about what was being requested and when.

Risk registers in general

The DOH prepared two “risk registers” documenting the risks associated with implementing the “far-reaching and highly controversial” NHS reforms under what was then the Health and Social Care Bill. The Tribunal heard that risk registers are used widely across government for project planning. They provide snapshots (rather than detailed discussions) combining the probability of and outcomes from any given risk associated with the proposed reform; risks are then classified in red, amber or green terms. According to Lord Gus O’Donnell, who gave evidence in support of the DOH’s case, risk registers are the most important tool used across government to formulate and develop policy for risk management in advising ministers. John Healey MP, one of the requesters in this case, said that he was a minister for ten years and was never shown such a register.

The requests and these particular registers

On 29 November 2010, Mr Healey requested a copy of the “Transition Risk Register” (TRR). This, the Tribunal found, was largely concerned with operational matters; it aimed to identify implementation risks. By this stage, the government had already published its White Paper on the reforms. Crucially, the Tribunal’s finding was that the broad policy decision had been taken by the time of the White Paper. The subsequent consultation was largely directed at how best to implement the White Paper. In response to that consultation, the government adhered to the vast majority of its plans, and set about implementing them early where possible.

On 28 February 2011, the second requester, Nicholas Cecil, asked for a copy of the Strategic Risk Register (“SRR”). This was concerned with potential policy decisions for ministers. By that time, the Bill had been laid before Parliament. Parliament’s reaction meant that, in a number of respects, ministers were called upon to rethink policy decisions surrounding the NHS reforms.

Both requests were refused. The IC ordered that they be disclosed. The Tribunal upheld the IC’s decision on the TRR, but allowed the DOH’s appeal on the SRR.

The approach to section 35(1)(a) of FOIA

Before the Tribunal, it was accepted that this exemption was engaged with respect to both registers. The Tribunal considered that the need for a safe space for policy-making was not linear. Its analysis is worth quoting in detail:

“We are prepared to accept that there is no straight line between formulation and development and delivery and implementation. We consider that during the progress of a government introducing a new policy that the need for a safe space will change during the course of a Bill. For example while policy is being formulated at a time of intensive consultation during the initial period when policy is formed and finalised the need for a safe space will be at its highest. Once the policy is announced this need will diminish but while the policy is being debated in Parliament it may be necessary for the government to further develop the policy, and even undertake further public consultation, before the Bill reflects the government’s final position on the new policy as it receives the Royal Assent. Therefore there may be a need to, in effect, dip in and out of the safe space during this passage of time so government can continue to consider its options. There may also come a time in the life of an Act of Parliament when the policy is reconsidered and a safe space is again needed. Such a need for policy review and development may arise from implementation issues which in themselves require Ministers to make decisions giving rise to policy formulation and development. We therefore understand why the UCL report describes the process as a “continuous circle” certainly until a Bill receives the Royal Assent. However the need for safe spaces during this process depends on the facts and circumstances in each case. Critically the strength of the public interest for maintaining the exemption depends on the public interest balance at the time the safe space is being required.

We would also observe that where a Bill is a Framework Bill we can understand that even after it receives the Royal Assent there will be a need for safe spaces for policy formulation as secondary legislation is developed. We note in this case that the Bill, although suggested by DOH to be a Framework Bill, is prescriptive of economic regulation, and cannot be described purely in framework terms.”

Public interest factors in favour of maintaining the exemption: safe space and chilling effect

One of the DOH’s witnesses contended that the registers allowed a safe space for officials to “think the unthinkable”, but the Tribunal found it difficult to see how the registers – particularly the TRR – could be described in that way: “the TRR identifies the sorts of risks one would expect to see in such a register from a competent Department”. Nonetheless, the Tribunal accepted the strong public interest in there being a safe space for policy formulation.

The main argument concerned the chilling effect, which Lord O’Donnell addressed in his evidence. The Tribunal considered that there was no actual evidence of the chilling effect following other instances of comparable disclosures (e.g. following OGC v IC (EA/2006/2068 & 80), or following a 2008 disclosure of a risk register concerning a third runway at Heathrow). Similarly, a 2010 report from UCL’s Constitution Unit concluded there to be little evidence for the chilling effect.

Overall, the Tribunal cautioned against treating qualified exemptions as absolute ones. It said:

“We would observe that the DOH’s position expressed in evidence is tantamount to saying that there should be an absolute exemption for risk registers at the stages the registers were requested in this case. Parliament has not so provided. S.35 (and s.36) are qualified exemptions subject to a public interest test, which means that there is no absolute guarantee that information will not be disclosed, however strong the public interest in maintaining the exemption.”

Factors in favour of disclosure

The DOH’s witnesses sought to play down the significance of the NHS reforms in comparison to other important reforms implemented by government. Mr Healey, however, argued that they were exceptional. The Tribunal agreed with him.

It also noted that the Conservatives’ manifesto for the 2010 election had promised an end to top-down NHS reorganisation, but that its NHS White Paper then appeared to propose exactly such a reorganisation. It was not preceded by a Green Paper. It was clear to the Tribunal that the White Paper was published in a hurry and to much public concern. Given the scale and controversial nature of the reforms, transparency of decision-making was very important.

The Tribunal found the public interest balance to be very difficult in this case. Judging the matters at the time of the DOH’s refusal notices, the Tribunal concluded that the balance favoured disclosure of the TRR but not the SRR – due to the differences in the nature of the registers and the timing of the requests (see above).

Section 40(2) of FOIA and civil servants’ names

Finally, the Tribunal also considered the DOH’s reliance on section 40(2) to redact the names of a number of civil servants on the grounds of their being insufficiently senior for disclosure to be fair. The Tribunal ordered the disclosure of the majority of these names. In so doing, it focused on the substance of what each individual did with respect to this particular information – rather than on their Civil Service grades.

Robin Hopkins

EXTRAORDINARY RENDITION: NEW APPGER DECISION ON SS. 23, 27, NCND AND OTHERS

April 12th, 2012 by Robin Hopkins

I blogged yesterday (see below) on APPGER’s litigation in the US courts concerning information about security bodies and their role in extraordinary rendition. The UK’s First-Tier Tribunal has today promulgated its decision on a separate set of requests made by APPGER to the Foreign & Commonwealth Office. The decision deals primarily with sections 23, 27, 35, 42 and the ‘neither confirm nor deny’ provisions under sections 23(5) and 24(2) of FOIA.

One of my fellow Panopticonners will post some commentary on the case shortly. In the mean time, here is the hot-off-the-press decision:

20120412_APPGER_decision

S. 35 FOIA AND THE DEVELOPMENT OF LEGISLATION – LATEST TRIBUNAL DECISION

March 23rd, 2011 by Robin Hopkins

The Tribunal’s recent decision in Makin v IC (EA/2010/0080 & 81) looks at the application of s. 35 FOIA, the qualified exemption for the formulation and development of government policy, in circumstances where the policy in question was effected through parliamentary legislation.  In particular, the requested information concerned the proposal in what was then the Legal Services Bill to continue the exemption of government lawyers from professional regulation, including the requirement to pay for a practising certificate.

The Tribunal considered the application of subsections 1(a), (2) and (4) of s. 35.

It had no hesitation in confirming that s. 35(1)(a) was engaged, relying on the well-established breadth of terms such as “relates to”. For the purposes of s. 35(2), the Tribunal found that no “statistical information” (a working definition of which was taken from the Ministry of Justice guidance of May 2008) was involved.

As regards s. 35(4) – the subsection concerning factual information used to inform decision-making – the Tribunal found that this subsection “should apply where it was relatively obvious that what was being provided was factual information for the purpose of informing the decision–taker on the background”. In adopting this approach, it applied the guidance from the leading case of DWP v Information Commission (EA/2006/0040), where the Tribunal held that, on the spectrum between pure advice and pure fact, “where the information is firstly, so inextricably connected to the deliberative material that it is difficult to distinguish and secondly, where the vast weight of material is non-factual information, we consider Parliament did not intend the sub-section to apply”.

An important point from this case is the Tribunal’s finding that whenever s. 35 is under consideration, public authorities and the IC must consider whether s. 35(4) applies and if so what affect it has on the public interest balancing test. This had not been done in this case.

As to the public interest, a crucial issue was (as is usual with s. 35 cases), when the policy formulation had come to an end. Answer in this case: the date of Royal Assent given to the bill embodying the policy, namely 30 March 2007. In this case, one of the internal reviews was only completed well after this date – but the Tribunal held that the latest relevant date for assessing the public interest was the date when the review ought to have been completed, in accordance with the Code of Practice. This was well before Royal Assent, meaning that the public interest factors applied as if the policy were still in the process of formulation.

In the event, apart from two pieces of information, the Tribunal found that the public interest favoured the maintenance of the exemption. In so doing, it “took the view that the efficacy of the Parliamentary legislative process took precedence in this context… Whilst s. 35 was not aimed directly at protecting the role of Parliament, insofar as Government policy in relation to legislation underpins this particular role of Parliament, they were intertwined”.

A final interesting point is that the Tribunal firmly endorsed the IC’s flexibility to decide that, although information should have been disclosed at the time, it nevertheless ought not to be disclosed due to fresh circumstances that have arisen since the decision of the public authority. In so doing, the Tribunal relied on obiter dicta from the High Court’s decision in Office of Government Commerce v Information Commissioner [2009] 3 W.L.R. 67 (at paragraph 98).

TRIBUNAL ORDERS DISCLOSURE OF 1986 ‘WESTLAND HELICOPTER’ CABINET MINUTES

October 1st, 2010 by Robin Hopkins

A number of Tribunal decisions have dealt with requests for minutes of cabinet meetings. Section 35 is inevitably relied upon, and arguments about both collective responsibility and confidentiality ensue.

 

The most famous concerned the decision to go to war in Iraq, which case saw disclosure being ordered by the Tribunal, but vetoed by Jack Straw.

 

More recently (Cabinet Office v ICO (EA/2010/ 0031)), the Tribunal has ordered disclosure of the cabinet’s meeting on 9th January 1986, in which Michael Heseltine resigned over the Westland Helicopter decision.

 

The Tribunal agreed that cabinet minutes are of the highest sensitivity, and should only be disclosed in rare cases “where it involves no apparent threat to the cohesive working of Cabinet government, whether now or in the future”. Relevant factors include: the passage of time, the departure of the relevant ministers from active politics, publication of memoirs and ministerial statements describing the meeting, the issue lacking ongoing significance, the ‘objectivity value’ where publicised accounts conflict, and whether the issue is of “particular political or historical significance”.

 

The last-mentioned factor was one Jack Straw expressly disagreed with when issuing the certificate of veto mentioned above: in other words, his position was that the more momentous a decision, the greater the need for confidentiality.

 

Many of these factors were, however, at work in the present case: for example, Margaret Thatcher and Michael Heseltine both made (acrimonious) public statements about the meeting at the time, and the meeting has since surfaced in plenty of memoirs. The outcome was that, whilst section 35 was engaged, the public interest favoured disclosure.

 

No sign of the incumbent Lord Chancellor, Ken Clarke – who, incidentally, was in the cabinet and present for the 1986 Westland Helicopter meeting – reaching for the veto just yet.

 

The Tribunal concluded its judgment with stringent criticism of the Cabinet Office’s delay in dealing with this request. The Cabinet Office is one of the 33 authorities on the ICO’s first monitoring list – on which, see my post below.

BLAIR ON FOIA: REGRETS, I’VE HAD A FEW

September 1st, 2010 by Anya Proops

Tony Blair has given an interview in today’s Guardian in which he robustly defends (almost) all of his actions as Prime Minister. Notable exceptions include the ban on fox-hunting and, somewhat surprisingly, the Freedom of Information Act. Thus, Martin Kettle of the Guardian reports: Some things about his record in office he does not defend. One is the Freedom of Information Act. “It’s not practical for government,” he says. “If you are trying to take a difficult decision and you’re weighing up the pros and cons, you have frank conversations. Everybody knows this in their walk of life. Whether you are in business – or running a newspaper – there are conversations you want to have preliminary to taking a decision that are frank. And if those conversations then are put out in a published form that afterwards are liable to be highlighted in particular ways, you are going to be very cautious. That’s why it’s not a sensible thing.”’ Query whether the current PM would be prepared to make a similar declaration. You can find the article here.

JACK STRAW EXERCISES MINISTERIAL VETO (AGAIN)

December 11th, 2009 by Anya Proops

In February of this year, Justice Secretary Jack Straw issued the first ministerial veto under s. 53 FOIA. The veto, which met with considerable public controversy at the time, was issued in response to an Information Tribunal decision which required disclosure of minutes of a Cabinet meeting at which the government decided to go to war in Iraq (see further my paper on this issue). Yesterday, Mr Straw announced that he was exercising his powers of veto for a second time. The new veto has been issued in respect of a decision of the Commissioner requiring disclosure of minutes of the Cabinet Ministerial Committee on devolution to Scotland and Wales and the English Regions 1997. In the public announcement of the veto, Mr Straw stated that disclosure of the information in issue would have put the convention of collective cabinet responsibility at ‘serious risk of harm’. He also stated that he considered the circumstances of the case to be exceptional. Notably, similar points had been used to justify the veto in respect of the Iraq minutes. See further the certificate and Mr Straw’s Statement of Reasons and Veto. The effect of the veto is that the appeal against the Commissioner’s decision, which was due to be heard by the Information Tribunal at the end of January 2010, will now be aborted as the effect of the veto is that the decision notice ceases to have effect. The Commissioner has today issued a statement in response to the veto. The statement expresses regret and concern that the veto was issued in circumstances where the Tribunal had yet to adjudicate on the Cabinet Office’s appeal (cf. the Iraq minutes case where the veto was issued subsequent to the tribunal’s decision). The Commissioner will in due course issue a report to Parliament on the matter.