Line to take - LTT128 - Wider impact of disclosure on the conduct of good government
- FOI/EIR: FOI, EIR
- Section/Regulation: s35, s36, reg 12(4)(b)
- Issue: Wider impact of disclosure on the conduct of good government
- Source: Information Tribunal
- Details: DfES / The Evening Standard (19 February 2007); Scotland Office (08 August 2008)
- Related Lines to Take: LTT43, LTT61, LTT104, LTT127, LTT129, LTT130, LTT131, LTT132, LTT133
- Related Documents: EA/2006/0006 (DfES), EA/2007/0070 (Scotland Office)
- Contact: LA
- Date: 29/10/2008
- Policy Reference: LTT128
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
The arguments about the wider impact of disclosure on the conduct of good government can b categorised as follows:
- The importance of preserving confidentiality of policy discussions in the interests of good government (safe space arguments - see also LTT129)
- The risk to candour and boldness in the giving of advice which the threat of future disclosure would cause (chilling effect arguments — see also LTT130)
- The risk to the role and integrity of the civil service (see also LTT131)
It will be important to distinguish between these arguments.
In reaching a final decision, Case Officers will need to consider the weight of each individual argument raised (in the individual circumstances of the case) and then how the strength of all the arguments in favour of maintaining the exemption weigh against all the factors in favour of disclosure.
A number of Tribunal cases have considered the issue of the direct and indirect consequences of disclosing information falling under s35 FOIA and Reg 12(4)(e) of the EIR,* and of how these considerations should be treated in the application of the Public Interest Test.
LTT43 “Guiding principles in relation to s35(1)(a) & 12(4)(e) public interest” considers detailed comments made by the Information Tribunal in this respect in the case of DES v the Information Commissioner which the Commissioner considers to be a key decision on s35. It also details relevant comments made in later cases heard in the High Court.
In the Tribunal case Scotland Office v the ICO (EA/2007/0070) the Tribunal provided the following helpful summary of the DfES arguments about the wider impact of disclosure on the conduct of good government.
“The arguments advanced by the public authority in this regard had to do, inter alia, with (1) the importance of preserving confidentiality of policy discussions in the interests of good government (the “safe space” argument); (2) the risk to candour and boldness in the giving of advice which the threat of future disclosure would cause (the “chilling effect” argument); and (3) the risk to the role and integrity of the civil service by, inter alia, identifying Officials with policies which were no longer in favour thus alienating them from future political masters. These would all be grave consequences, undermining important constitutional safeguards and significantly altering the way in which the executive conducted its business. It would also impact record keeping.”
This LTT provides a brief overview of the arguments as categorised in the Scotland Office case and emphasises the need to distinguish between them. It also provides cross references to the relevant “guiding principles” from the DfES case (as covered by LTT43) and refers to further LTTs where these issues are discussed in more detail.
Although terms such as “safe space” and “chilling effect” provide a useful shorthand for case officers and public authorities, the ICO view is that Decision Notices should provide full explanations of the issues being considered, in the context of the circumstances of the case, and should not assume that the reader has prior knowledge and understanding of these terms.
Whilst each individual argument raised will need to be considered in some detail, it should be remembered that any final decision will need to take account of all the factors argued in favour of maintaining the exemption, and all the factors that favour disclosure. It will be important therefore, not to become so focussed on one particular argument, that this wider overview is lost.
All wider impact arguments will need to be considered in the circumstances of the case.
The “safe space” arguments
The Commissioner considers that there are two types of “safe space” argument:
- safe space for policy formulation
- safe space in the context of collective Cabinet responsibility
These are considered in more detail in the LTT129 “Safe space arguments”
The arguments here recognise that there is a public interest in the government being able to formulate policy and debate “live” issues in Cabinet away from external scrutiny. This need for a “safe space” exists separately to, and regardless of, any potential “chilling effect” on the frankness and candour of debate. It is important therefore, to differentiate between “safe space” and “chilling effect” arguments.
The DfES guiding principles most relevant to these arguments are (iv) timing, and (v) when is policy formulation and development complete?
The “chilling effect” arguments
The “chilling effect” arguments basically deal with the overall concept that the disclosure of information will affect the frankness or candour with which issues are debated by relevant parties such as Ministers and Civil Servants. Public Authorities have maintained that such a loss of frankness or candour would not be in the public interest because it would ultimately result in poorer decision making and less robust, well considered or effective policies and decisions.
This concept can cover a number of different scenarios as discussed in detail in LTT130 ‘Chilling effect arguments’. As stated above it will be important to differentiate between ‘chilling effect’ arguments and “safe space’ arguments.
The DfES guiding principle most relevant to this argument is (vii) robustness of officials. The “risk to the role and integrity of the civil service” arguments
The arguments here basically deal with the issue of the potential effects of disclosure on the civil service. They emphasise that it is Ministers rather than civil servants that are ultimately accountable for government policy and argue that in light of this protection should be afforded to civil servants. Without such protection, it is argued, the effectiveness and neutrality of the civil service is threatened.
This argument is discussed further in the LTT131 ‘risk to the role and integrity of the civil service arguments’
The DfES guiding principles most relevant to this argument are (iii) protection for civil servants not politicians, (viii) junior officials, (ix) relationship between officials and politicians, (xi) names of civil servants
Application of these arguments to section 36
The majority of Tribunal cases referred to in this and the related Lines to Take deal with information withheld under section 35 of the FOIA. However the Commissioner considers that there may also be section 36 cases where these arguments are equally relevant.
(*) Application to the EIR
As per LTT104 Regulation 12(4)(e) of the EIR covers Internal Communications and as such is wider in scope than s35 FOIA. Whilst Reg 12(4)(e) doesn’t provide a direct equivalent of s35, the issues in the LTT will be equally relevant where the information concerned would, but for it being environmental information, fall under s35 FOIA.
Other issues relevant to the Public Interest Test under section 35 or regulation 12(4)(e)
This LTT considers the wider impact of disclosure on the conduct of good government.
LTT43 “Guiding principles in relation to s35(1)(a) & 12(4)(e) public interest”, includes other issues relevant to the Public Interest Test under s35 or reg 12(4)(e) and remains a key LTT for section 35 and reg 12(4)(e) cases. It covers both direct and indirect effects of disclosure.
LTT61 “advice to decision makers” also includes some relevant public interest considerations including a discussion on the impact of disclosure on record keeping.
The resource document “Overview of section 35 / Reg 12(4)(e) public interest arguments” provides an overview, in diagram form, of the various section 35 / 12(4)(e) arguments that have been considered, and the Tribunal’s reaction to them. It doesn’t provide a particular “line to take” but may be useful for case officers in visualising / keeping track of the various section 35 arguments and in cross referencing to relevant LTTs.
LTT132 ‘Public interest in protecting collective Cabinet responsibility’ comments on the public interest in maintaining the convention of collective Cabinet responsibility.
LTT127 Scope* overlap of s35(1)(a) and 35(1)(b) comments on the differentiation and overlap between these two sub-sections