Line to take - LTT127 - Scope & overlap of s35(1)(a) and s35(1)(b)
- FOI/EIR: FOI, EIR
- Section/Regulation: s35, reg 12(4)(e)
- Issue: Scope & overlap of s35(1)(a) and s35(1)(b)
- Source: Information Tribunal
- Details: Scotland Office (08 August 2008); Scotland Office (05 August 2008)
- Related Lines to Take: LTT51, LTT62, LTT104, LTT128, LTT129, LTT130, LTT131, LTT132, Awareness Guidance 24.
- Related Documents: EA/2007/0070 (Scotland Office), EA/2007/0128 (Scotland Office), FS50119242
- Contact: LA
- Date: 29/10/2008
- Policy Reference: LTT127
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
S35(1)(a) and s35(1)(b) are not mutually exclusive, so there may be information that legitimately falls under both sub sections.
The convention of collective Cabinet responsibility will be most relevant to s35(1)(b), but may also apply to s35(1)(a). It may also apply to certain information falling under regulation 12(4)(e) of the EIR.
Not all information falling under s35(1)(a), s35(1)(b) or Regulation 12(4)(e) will engage the convention of collective Cabinet responsibility.
S35(1)(a) and s35(1)(b) are not mutually exclusive
In Scotland Office v The Information Commissioner (EA/2007/O128) the public authority had claimed the exemptions at both s35(1)(a) and s35(1)(b) in relation to the same information.
The Tribunal commented (para 43) that “We do not regard the two categories of information a mutually exclusive as it seems to us that information may relate to a Ministerial communication (section 35(1)(b)) by virtue of who is identified in it and also relate to the formulation or development of government policy (section 35(1)(a)) by virtue of its subject matter. We consider therefore that information can be properly regarded as falling within both exemptions.”
This same approach was also taken in Scotland Office v The Information Commissioner (EA/2007/0070) where the Tribunal commented at paragraph 78 that “As already noted, the Appellant says that all items of disputed information come within the ambit of both sections 35(1)(a) and 35(1)(b). These two sub-sections are of course not mutually exclusive.”
The Commissioner concurs with this view. He also notes that (as per LTT51) the exemptions in section 35(1) apply where the information “relates to” the matters set out in the sub-sections.
Case officers should, however, when analysing s35(1)(a) and (b), be careful to reach a clear conclusion in relation to each separate limb. Although many of the same considerations could apply where both sub-sections have been claimed, these considerations may need to be afforded different weight in the Public Interest Test depending on the limb being considered. For example, information which reveals ministerial disagreement but provides little policy detail may do little to undermine the specific policy making process, but much to undermine the quality of future ministerial decisions and debate.
Information falling under s35(1)(a) — the formulation and development of government policy
The ICO Awareness Guidance 24 provides some guidance on the type of information that may be caught by s35(1)(a). LTT62 -“when is policy formulation and development complete?” also provides some discussion and Tribunal comment on the nature of policy formulation and development.
However, the Commissioner has noted that section 35(1)(a) has been applied to several different types or levels of policy, and that in some cases it could be argued that the information in question actually related to Departmental rather than Government policy, or to the implementation of an existing Government policy rather than to its formulation and development. For this reason he has commissioned a research project to aid his understanding of the process of formulating and developing Government policy. Whilst in the majority of decisions to date the Commissioner has accepted that the information in question does relate to the formulation and development of government policy, case officers should continue to give this issue careful consideration . One case where the Commissioner found that the information did not relate to the formulation and development of government policy was FS50119242 (link provided below)
The Commissioner considers that the purpose of s35(1)(a) is to protect the integrity of the process of formulating and developing Government policy, and to prevent releases of information undermining this process and ultimately resulting in less robust, well considered or effective policies.
Information falling under s35(1)(b) — ministerial communications
The definition of ministerial communications is provided in full at section 35(5) of the Act.
It includes “in particular, proceedings of the Cabinet or of any committee of the Cabinet, proceedings of the Executive Committee of the Northern Ireland Assembly and proceedings of the Cabinet or any committee of the Welsh Assembly Government.”
Further guidance on information caught by s35(1)(b) is provided in ICO Awareness Guidance 24.
Scotland Office case (EA/2007/0070) confirmed that “communications between a Private Secretary writing on behalf of his/her Minister and another Minister, constitutes Ministerial communications.” (para 50).
Scotland Office case (EA/2007/0128) confirmed the status to be accorded to letter written by one Private Secretary to another” Such letters would contain the views of the relevant Ministers and so would, in our opinion, properly fall to be considered under section 35(1)(b).
The Commissioner would concur with the conclusions of both Tribunals, but see also LTT51 for further discussion on this point.
Case officers should not consider the above as an exhaustive list of all information falling under s35(1)(b). Rather, details have been provided in this Line to Take of some information that has been considered as legitimately falling under s35(1)(b) to date.
The Commissioner considers that the purpose of this exemption is to prevent disclosure of information that results in less robust and well considered Ministerial decisions and debates. He does not consider that its purpose is to protect Ministers from embarrassment or from being held accountable for their decisions.
Information engaging the convention of collective Cabinet responsibility
The convention of collective Cabinet responsibility was described by the IT in Scotland Office v The Information Commissioner (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).
This Tribunal considered the convention of collective Cabinet responsibility in relation to section 35(1)(b) FOIA. It commented at paragraph 85 that “not all information coming within the scope of section 35(1)(b) will bring the convention of collective Cabinet responsibility into play. Some communications may be completely anodyne or may deal with process rather than policy issues. Communications may also be purely for information purposes, such as when reports are circulated.”
The Commissioner considers that the convention of collective Cabinet responsibility will most obviously apply to information falling under s35(1)(b), because details of deliberations within the Cabinet, Ministerial debate, and divergent views will most obviously be contained within ministerial communications.
However he considers that it may also be applicable to some information falling under s35(1)(a). This is because deliberations, debate and divergent views in relation to policy matters may also be revealed in information relating to the formulation and development of government policy. In particular it may be evident in communications between parties other than ministers (such as officials or departments). He also considers that the convention of collective Cabinet responsibility is designed to protect both the integrity of the policy formulation and development process protected under s35(1)(a), and the Ministerial decision making process protected under s35(1)(b).
Whilst there be Ministerial decisions that don’t relate to the formulation and development of Government policy, many Ministerial decisions will be made in this context. In these cases the quality of ministerial debate is likely to effect the quality of the policy formulation and development process, the policy decision, and ultimately the quality of the final policy. As such the convention of collective Cabinet responsibility may span both s35(1)(a) and s35(1)(b). In such cases it should not be forgotten that a causal link between the release of the information and the quality of the debate will also need to be established.
As per LTT104, although Regulation 12(4)(e) of the EIR does not provide a direct equivalent to section 35 FOIA, there is some correlation between theses two provisions. The convention of collective Cabinet responsibility may therefore, also apply to some information falling under regulation 12(4)(e) of the EIR.
As per the Scotland Office Tribunal position, the Commissioner notes that not all information falling under s35(1)(a), s35(1)(b) or regulation I 2(4)(e) will necessarily engage the convention of collective Cabinet responsibility anyway.
For discussion on the public interest in maintaining the convention of collective Cabinet responsibility see LTT132.
There are a number of further Lines to Take which consider the Public Interest Test under section 35, as detailed in the Related Lines to Take section below.