Line to take - LTT43 - Guiding principles in relation to s35(1)(a) & Reg 12(4)(e) public interest

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  • Section/Regulation: s35(1)(a), s2(2)(b), reg 12(4)(e)
  • Issue: Guiding principles in relation to s35(1)(a) & Reg 12(4)(e) public interest
  • Source: Information Tribunal, High Court
  • Details: DfES / The Evening Standard (19 February 2007), DWP / Oaten (05 March 2007), Baker / DCLG (1 June 2007), ECGD / FOE (17 March 2008-High Court, OGC / Oaten (11 April 2008 -High Court), DCMS (29 July 2008), HMT (7 November 2007)
  • Related Lines to Take: LTT42, LTT50, LTT51, LTT61, LTT62, LTT127, LTT130, LTT131, LTT132, LTT133
  • Related Documents: EA/2006/0006 (DfES), FS50074589 (DfES), FS50088619 (HMT), Awareness Guidance 1, EA/2006/0040 (DWP), EA/2006/0043 (Baker), [2008] EWHC 737 (Admin) (OGC High Court), [2008] EWHC 638 (Admin) (ECGD High Court), EA/2007/0090 (DCMS), EA/2006/0064 (Evans), EA/2007/0001 (HMT)
  • Contact: RM / LA
  • Date: 07/11/2008
  • Policy Reference: LTT43
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

The weighing up of the public interest in s35 cases relating to information on the formulation or development government policy may be guided by eleven guiding principles as set out by the Information Tribunal.

For information falling under Regulation 12(4)(e), which, if it were not environmental information, would be covered by section 35(1)(a), these guiding principles may be equally relevant.

Further Information

In DfES v the Commissioner and the Evening Standard (EA/2006/0006) the DfES had appealed the Commissioner’s decision to order the release of the minutes from senior management meetings on what the newspapers had described as a ‘funding crisis’ in schools. The information had been withheld under section 35(1)(a) – formulation & development of government policy. The Tribunal found that the exemption was engaged.

The Tribunal laid down a set of eleven principles which it said should guide the weighing of the public interest in such cases (para 75). In formulating these principles, the Tribunal sought in some cases to address the claim that disclosure of such information would have a wider damaging impact on good government. The way in which these principles feed into other issues is also discussed in further LTTs (LTT128 wider impact, LTT129 ‘safe space’, LTT130 ‘chilling effect and LTT131 ‘risk to integrity of civil service’).

The principles have since been considered and commented on in other Tribunal cases and in cases heard in the High Court.

The 11 guiding principles from DfES / Evening Standard

(i) The information itself.

The central question in every case is the content of the particular information in question. Every decision is specific to the particular facts and circumstances under consideration. Whether there may be significant indirect and wider consequences from the particular disclosure must be considered case by case

This comment from the DfES case was commended as a statement of principle by Mr Justice Mitting in the High Court decision Export Credits Guarantee Department v Friends of the Earth. The information in question in this EIR case related to Government Department comments on an application to the ECGD to finance the Sakhalin II oil pipeline project.

(ii) ‘Status’ of information not relevant

No information within s35(1) is exempt from…disclosure simply on account of its status… classification … nor … seniority of those whose actions are recorded.” In this case the fact that the information related to the deliberations of very senior officials did not mean that the minutes were automatically more sensitive. “To treat such status as automatically conferring an exemption would be tantamount to inventing within s35(1) a class of absolutely exempt information” (para 69). Although it is more likely that senior civil servants will grapple with sensitive issues, it is quite conceivable that on other occasions their discussions would not be sensitive.

The related principle that there is no inherent public interest in withholding information that falls within the type of information covered by a class based, qualified, exemption was confirmed in the High Court decision OCG v ICO & Her Majesty’s Attorney General obo the Speaker of the House of Commons (see LTT42 for further detail)

(iii) Protection for Civil Servant not Politicians

There is a public interest in maintaining the exemption provided by s35(1)(a) in order to protect from compromise or unjust public criticism of civil servants, not ministers. It is not unfair to politicians to release information that allows the policy decisions they took to be challenged, after the event. It was noted later at para 81, that it was not unknown for politicians to disclose what information they had based decisions on when perhaps to do so would protect the politician’s position.

The Commissioner would generally accept this stance. However, before dismissing such arguments completely, it may be appropriate to also consider LTT132 (collective Cabinet responsibility), as it may be that arguments about the public interest in maintaining collective responsibility are also relevant.

See also LTT131 - risk to role & integrity of civil service - for further discussion about the accountability of civil servants

(iv) Timing

“The timing of a request is of paramount importance…” Whilst policy is in the process of formulation it is highly unlikely that the public interest would favour disclosure unless for example it would expose wrongdoing in government. Both ministers and officials are entitled to hammer out policy without the “…threat of lurid headlines depicting that which has been merely broached as agreed policy.”

This importance of timing and the DfES quote above were considered in OCG v The Information Commissioner where the information related to the Government’s gateway zero review into the introduction of an identity cards Bill. The IT decision was appealed to the High Court and in the High Court ruling Mr Justice Stanley Burnton agreed with the Tribunal’s position on this point (although the overall decision was quashed and returned to a differently constituted Tribunal to be heard and determined afresh). He commented (at para 101) that “ the Tribunal did not find that there was no public interest in maintaining the exemptions from disclosure once the Government had decided to introduce the Bill, but only that the importance of maintaining the exemption was diminished. 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”

For further discussion on the relevance of timing see also (vii) the Robustness of Officials below and LTT129 safe space arguments.

(v) When is policy formulation or development complete

The Tribunal found this to be a question of fact and rejected arguments that there was a “seamless web”, or policy cycle in which a policy is formulated following which any information on its implementation is fed into the further development of that policy or the formulation of a new policy. The Tribunal decided that a “parliamentary statement announcing the policy…will normally mark the end of the process of formulation. There may be some interval before development.” However it should not be assumed that as soon as an announcement is made the information is no longer sensitive. See LTT62 for further discussion on this point.

(vi) Information in the public domain

The IT in DfES commented that if the information requested is not in the public domain, then the fact that other information on the same subject is already in the public domain is not a significant factor.

This issue was also considered in the ECGD decision by the IT and the High Court. The IT in ECGD rejected an ICO argument that the public interest in accessing information on the pipeline project had been substantially met by a large volume of information already in the public domain, on the basis that the information actually requested was not already in the public domain.

The High Court in ECGD commented (at paragraph 43 ) that “the Tribunal concluded that the fact that information about the Sakhalin II was in the public domain, and extensively so, was an irrelevant factor. Its conclusion is unimpeachable if I had in mind only the narrow questions of public interest to which I have already referred; that is to say, whether ECGD had been properly advised and whether the government department giving the advice had properly fulfilled its statutory duty. But if the Tribunal is to be taken as saying that the fact the information of the kind requested is generally in the public domain is an irrelevant factor, then its views are mistaken.”

As the High Court had already found (para 39) that the IT had identified a specific public interest in disclosure; namely “the public interest in seeing whether the ECGD had been properly advised. Secondly, the public interest in seeing whether government departments charged with a specific statutory duty, such as DEFRA, had properly fulfilled their duty” the ICO interprets the High Court’s comments as follows:

  • Where release of the particular information in question further informs the public, then the fact that there is already other information on the same subject in the public domain is not relevant, because there is a public interest in all information being made available to give the public the fullest possible picture (see also LTT61 Advice to Decision Makers for further discussion of this point). However,
  • the fact that “information of the kind requested” is generally in the public domain may be a relevant factor to be weighed in the public interest, in so much as it may provide an indication of the likely harm or the likely public interest benefits that could result from disclosure.

In summary the ICO approach to information already in the public domain is :

  • The mere fact that other information is in the public domain is not relevant as a general argument, What may be relevant is whether the disclosure will add to or enhance understanding of the issues at stake, already illuminated by the other information, but there is always a relevant weight to be given to the full picture argument.
  • Information in the public domain may be relevant as an indication that no harm has occurred from this related information being in the public domain and it may be relevant in comparing what benefits already exist from the information in the public domain.

(vii) The robustness of officials

The DfES had argued that the threat of civil servants’ advice being disclosed would cause them to be less candid when offering such opinions. The Tribunal stated that “…we are entitled to expect of [civil servants] the courage and independence that … [is]…the hallmark of our civil service”. It went on to describe civil servants as “…highly educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions.” In short they should not easily be discouraged from doing their job properly.

However, arguments about loss of frankness and candour should not be dismissed out of hand. In the ECGD High Court case the judge criticised the IT for referring to the consideration of potential “chilling effects” as “ulterior considerations”, commenting that “The considerations are not ulterior; they are at the heart of the debate which these cases raise”.

Such arguments should be considered as part of the public interest test and with reference to the information in question and the timing of the request. Disclosures of information relating to a given policy, whilst that policy making process is ongoing are potentially more likely to inhibit the frank and candid debate of those involved than disclosures made after the policy making process is complete, However, the final decision should always be made on the individual circumstances of the case.

See also LTT130 chilling effects for further discussion of this point..

(viii) Junior officials

However there may be grounds for withholding the names of more junior officials who would never expect “their roles to be exposed to public gaze.” This has to be decided on the particular facts, there should be no blanket policy to withholding such names. See also LTT131 ‘risk to role integrity of civil service’.

(ix) Relationship between Officials and Politicians

The DfES had expressed concern that officials who were identified with particular policies may find themselves discriminated against when there was a change of government or even just a change in ministers. The Tribunal’s view was that we are entitled to expect our politicians to act fairly and not to remove a senior official simply because they have been identified with a policy that was no longer in favour. This point is also addressed in LTT131 ‘risk to role & integrity of civil service'.

(x) How will the public use the information

The Tribunal found that information should not be withheld simply through fear that it may reflect adversely and unfairly on a particular official.

On the face of it this seems at odds with point iii). However here the Tribunal were perhaps more concerned with the public misunderstanding the role of civil servants, it stated that, “The answer to ill-informed criticism of the perceived views of civil servants is to inform and educate the critic…”. It may also be that greater emphasis should be placed on Tribunal’s view in point 3 that there is no public interest in protecting politicians from criticism.

In HM Treasury v the Information Commissioner, the Tribunal again addressed this issue and commented (at para 62) that “ We were wholly unpersuaded by Mr Neales’s further point, that the public might wrongly assume that a measure was adopted or rejected by reason of the rationale used by the Civil Servant as a working assumption for the provision of advice, whereas the Ministers actual reason for adopting or rejecting it might be different, and that would lead to difficulties. Any Minister in that position would be able to explain the status of the official’s assumption and what his own thinking was”

(xi) Names of Civil Servants.

Finally the Tribunal returned to the issue of releasing the names of civil servants. ”A blanket policy on refusing to disclose the names of civil servants wherever they appear in departmental records cannot be justified…”. That is not to say that there will not be situations where because of the particular sensitivity or controversial nature of the policy advice it should not be attributed to the official. “There must, however be a specific reason for omitting the name of an official where the document is otherwise disclosable”. The Tribunal went on to comment that since there may be little to be learnt from disclosing the officials’ name, the arguments for withholding names may not have to be compelling for the public interest to favour maintaining the exemption in relation to the names.

See also LTT131 on ‘risk to role & integrity of civil service' for further discussion on this point.

Other points from DfES / Evening Standard

Public interest in disclosure (paras 86 - 88)

The public authority also commented, in relation to the public interest disclosure, that although in this particular case the minutes added little to the public debate on the perceived funding crisis, primarily because of the skeletal nature of the minutes, the Tribunal considered, amongst other things, that there was public interest in disclosing the information. This was because had the minutes been silent on the issue of the ‘funding crisis’ prior the news story actually breaking, this may have been significant, i.e. it would have indicated that the DfES had been unaware of any problems.

It is important that when considering the public interest in disclosure that as well as taking into account general factors, such as increased openness and transparency, any more specific public interest benefits that would flow from the release of the particular information in question are also considered.

In the ECGD High Court case, in reaching his conclusion that the Tribunals final decision had been made in accordance with the law, Mr Justice Mitting commented that “the Tribunal did note ….the specific public interest in disclosure of the departmental response to the ECGD request for information which was in play” (para 39)

Personal Data Issues

The issues discussed at principle (vii)- Robustness of Officials, and in particular at principles (viii) – Junior Officials & (xi)- Names of Civil Servants, are all arguments that raise Data Protection issues and therefore could have been made in relation to s40(2). The Commissioner’s view is that Section 40 arguments, about fairness to individuals and breaches of the DPA should be considered under section 40. (for the Commissioner’s approach to these issues see the various LTTs provided on s40). Arguments about risks to the role and integrity of the civil service, and the knock-on effect on effective policy formulation and decision making are relevant to section 35.

See LTT131 risk to role and integrity of civil service for further discussion on this point.

Application to regulation 12(4)(e)

These eleven LTT principles also guided the Tribunal in the cases of DWP v the ICO and Baker v the ICO & DCLG.

In the second, the information requested was withheld under regulation 12(4)(e) of the EIR which excepts internal communications. The Tribunal noted that there is no indication that it is intended to have particular application to decision makers and advisers, and expressed concern that the principles in the DfES case be applied too rigorously to reg 12(4)(e). However, it concluded that that they do provide broad guidance.

The ICO view (as set out in LTT104) is that there will be information covered by the EIR12(4)(e) exception for internal communications, that would not fall under the FOIA exemption for section 35. However, for information which, if it were not environmental information, would be covered by section 35 , then these guiding principles may be equally relevant to the EIR.