Line to take - LTT129 - Safe space arguments

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  • Section/Regulation: s35, s36, reg 12(4)(e)
  • Issue: Safe space arguments
  • Source: Information Tribunal
  • Details: DfES / The Evening Standard (19 February 2007); Scotland Office (08 August 2008); Scotland Office (05 August 2008) OGC / Oaten (11 April 2008 -High Court); DBERR / Friends of the Earth (29 April 2008)
  • Related Lines to Take: LTT43, LTT62, LTT127, LTT128, LTT130, LTT131, LTT132, LTT133
  • Related Documents: EA/2006/0006 (DfES), EA/2007/0070 (Scotland Office 08/08/2008), EA/2007/0128 (Scotland Office 05/08/2008), (OGC High Court, [2008] EWHC 638 (Admin), EA/2007/0072 (DBERR)
  • Contact: LA
  • Date: 29/10/2008
  • Policy Reference: LTT129
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

There is a public interest in civil servants and ministers 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 that might flow from disclosure under FOIA.

Safe space arguments may be accepted both in the context of policy formulation and of Collective Responsibility.

Further Information

Safe space arguments are usually made in relation to the public interest test under s35 FOIA. However (as per LTT128) they may also apply to some s36 cases and to some information falling under Regulation 12(4)(e) of the EIR.

“Safe space” arguments are about the need for a “safe space” to formulate policy, debate “live” issues”, and reach decisions without being hindered by external comment and/or media involvement.

They are related to, but not the same as “chilling effect” arguments, and care should be taken to differentiate between these two concepts. The Commissioner’s view is that, whilst part of the reason for needing a “safe space” is to allow free and frank debate, the need for a “safe space” exists regardless of any impact on the candour of debate of involved parties, which might result from a disclosure of information under FOIA (see LTT130 chilling effect). “Chilling effect” arguments are directly concerned with the argued loss of frankness and candour in debate / advice which it is said would result from disclosure of information under FOIA.

The Commissioner considers that there are two main types of “safe space” arguments:

Safe space and policy formulation — s35(1)(a)

Summarised in Scotland Office v the Information Commissioner (EA/2007/0070) as “the importance of preserving confidentiality of policy discussion in the interest of good government’ this covers the idea that the policy making process should be protected whilst it is ongoing so as to prevent it being hindered by lobbying and media involvement.

In Department for Education and Skills v the information Commissioner and The Evening Standard the Tribunal recognised the importance of this argument stating “Ministers and officials are entitled to time and space, in some instances considerable time and space, to hammer out policy by exploring safe and radical options alike, without the threat of lurid headlines depicting that which has been merely broached as agreed policy” (para 75, point iv).

This argument recognises that the need for a safe space whilst formulating policy exists separately to, and regardless of any potential effect on the frankness and candour of policy debate that might result from disclosure of information under FOIA (the “chilling effect”). Even if there was no suggestion that those involved in policy formulation might be less frank and candid in putting forward their views, there would still be a need for a “safe space” for them to debate policy and reach decisions without being hindered by external comment.

In another Scotland Office case Scotland Office v the information Commissioner (EA/2007/0128 para 62) the Tribunal again recognised the importance of this concept, but warned that “information created during this process cannot be regarded per se as exempt from disclosure otherwise such information would have been protected in FOIA under an absolute exemption”. The Commissioner agrees with this view and comments that there may be cases where the public interest in disclosure is sufficient to outweigh this important consideration.

An important determining factor in relation to the “safe space” argument will be whether a request for such information is received whilst a “safe space” in relation to that particular policy making process is still required (see also LTT62).

In the High Court case Office of Government Commerce v the Information Commissioner the information in question related to the Government’s gateway zero review into the introduction of an identity cards Bill. Mr Justice Burnton commented that “I accept that the Bill was an enabling measure, which left questions of Government policy yet to be decided. Nonetheless, an important policy had been decided, namely to introduce the enabling measure, and as a result I see no error of law in finding that the importance of preserving the safe space had diminished”

In DBERR v the Information Commissioner and Friends of the Earth (para 114) the Tribunal commented in relation to the need for a private “thinking” space; “This public interest is strongest at the early stages of policy formulation and development. The weight of this interest will diminish over time as policy becomes more certain and a decision as to policy is made public.”

In summary, several Tribunals have accepted as valid, public interest arguments about the loss of a safe space, specific to the policy debate to which the information relates. This is on the basis that:

  • there is a public interest in preserving a “safe space” for policy formulation, and
  • that to release information relating to a particular policy, whilst that same policy is still in its formulation and development stages might erode that “safe space”.

It will therefore be important when considering such arguments to establish:

  • which policy the information in question relates to, and
  • whether the formulation and development of that policy is still ongoing (see also LTT62)

and also to judge:

  • whether the weight of the public interest has diminished due to the policy becoming “more certain”,(see quote from DBERR above)

It should also be remembered that the need for a safe space is only one argument to be taken into account in the overall public interest test and 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.

The guiding principles (see LTT43) most relevant to this argument are (iv) timing, and (v) when is policy formulation and development complete?

Safe space and collective responsibility

The Commissioner would also accept the argument that the need for a safe space extends beyond that related to the ongoing policy formulation and development process in the context c the convention of Collective Responsibility. (see also LTT132, and LTT127) for further discussion on the extent to which the convention of Collective Responsibility may span both s35(1)(a) and s35(1)(b)).

Collective Cabinet responsibility was described by the IT in the Scotland Office case (EA/2007/0070) as “the long standing convention that Ministers are collectively accountable for the decisions of the Cabinet and are bound to promote that position to Parliament and the general public, regardless of their individual views. During the course of meetings of the Cabinet or of Cabinet Committees or through correspondence, Ministers may express divergent views, but once a decision is taken, the convention dictates that they must support it fully. When decisions are announced as Government policy, the fact that a particular Minister may have opposed it in Cabinet is not disclosed.” (para 82).

The Tribunal in this case commented (para 88) in relation to s35(1)(b) that “as with formulation of government policy under section 35(1)(a), timing is likely to be of paramount importance. Where the Ministerial communication is in relation to an issue that was “live” when the request was made, the public interest in preserving a “safe space” for Ministers to have a full and open debate, and the public interest in the Government being able to come together successfully to determine what may, in reality, have been a contentious policy issue, may weigh the balance in favour of maintaining the exemption. However, that does not detract from the need to assess each case on its own circumstances.”

The Tribunal did not expand upon what it meant by a “live” issue, and this will always need to be considered in the context of the case. However, the Commissioner considers that in addition to ongoing policy making issues, this may also cover situations such as agreeing a government response to an unforeseen world event or deciding how to counter critical press coverage.

Collective Cabinet responsibility beyond the “safe space” argument

The “safe space” argument is based on the premise that it is in the public interest for Ministers to be able to have a full and open debate away from external scrutiny to enable them to reach an agreed position. In light of this the Commissioner considers that once the Cabinet have successfully determined an issue and agreed a collective position then “safe space” arguments will no longer apply.

This does not mean, however, that public interest considerations about undermining Collective Cabinet Responsibility will completely fall away. The Commissioner accepts that the there ma be a separate public interest in allowing the Cabinet to promote and defend an agreed position without revealing divergent individual views, and this issue is discussed further in LTT132.

The Commissioner considers this to be a separate public interest consideration to the “safe space” consideration however, because it is not the “safe space” to debate and reach agreement away from external scrutiny that it being protected at this stage. Indeed, the very nature of promoting and/or defending an agreed position means that agreement (or a collective position) will have already been reached. Further, promoting and /or defending a position will rarely, if ever, need take place in a safe space (i.e. in isolation or away from external scrutiny). Arguments that this is the case would raise the question as to whom the position is being promoted to, if not to an external audience of some kind. Therefore case officers should refer to LTT132 when considering arguments about the need to present a united front after a decision has been made