Line to take - LTT61 - Advice to Decision Makers

• FOI/EIR: FOI, EIR
• Section/Regulation: s2(1)(b), s35, s36, reg 12(1)(b), reg 12(4)(e)
• Issue: Advice to Decision Makers
• Source: Information Tribunal
• Details: Baker / DCLG (1 June 2007)
• Related Lines to Take: LTT42, [[LTT43], LTT50
• Related Documents: EA/2006/0043, Awareness Guidance 24, Awareness Guidance 25
• Contact: RM
• Date: 07/08/2007
• Policy Reference: LTT61

Line to take

The following considerations may help the weighing of the public interest test:

(i) arguments that disclosure will lead to poorer record keeping should be disregarded;

(ii) although the complexity of the issue may make the information more sensitive it may also increase the public interest in disclosure;

(iii) the fact that there is already information in the public domain explaining the decision in question does not mean there is no public interest in disclosure; and

(iv) by providing the full information behind a decision removes any suspicion of ‘spin’.

Further Information

Requests for information on the advice provided to decision makers, whether they be other officials, elected members or ministers are often refused under s35, s36 or the exception under the Regs provided by reg 12(4)(e) — internal communications. The validity of the arguments for and against disclosure are usually debated as part of the public interest test and commonly discuss issues around how officials will react to a disclosure of their advice in terms of the candour of any advice they give in the future and the way such advice will be recorded etc.

Lord Baker v the Commissioner and the Dept for Communities and Local Government (EA/2006/0043) concerned a request under EIR for information on a decision on whether or not to grant planning permission on a controversial development. Information on the advice given by civil servants to the Deputy Prime Minister when making his final decision had been withheld under reg 12(4)(e) — internal communications. This case adds to our understanding of how the Tribunal may view some of these arguments.

Record Keeping

In this case the Tribunal gave little weight to arguments that disclosure will lead to poorer record keeping and seemed to view this as an issue that could properly be addressed by staff management. (This approach is consistent to that taken by the Tribunal in the DfES case EA/2006/0006 see LTT43, also see LTT50 on the disclosure of minutes)

A witness for the Dept explained that although the contents of the advice would not change in response to the possibility of disclosure, there would be a, “greater tendency to give advice orally and not in writing. [The witness] explained that this is what happened when reports of local authority planning officers were first exposed to public inspection in the early 1990s. However, he added that it had been acknowledged that this represented bad practice and that it was less prevalent these days. He accepted that it was a matter of effective staff management, at both central and local government level, to ensure that complete advice was made available to decision makers and properly recorded.”(para 18)

The Tribunal summarised another witness’s evidence that “he believed [employees] had become more rigorous and disciplined in recognition of the fact that what they wrote might become the subject of public scrutiny — they were more aware of the need, in his words, to get it right” (para 18).

The complete quotes from the above Tribunal ruling, as well as further quotes from the Tribunal and ICO on impact of FOI on record keeping are available in a briefing note prepared for a Select Committee on this subject.