Line to take - LTT149 - Public interest in disclosing information about lobbyists
- FOI/EIR: FOI, EIR
- Section/Regulation: s35, s36, reg 12(5)(f)
- Issue: Public interest in disclosing information about lobbyists
- Source: Information Tribunal
- Details: DBERR v ICO & FoE (29/04/2008); Evans v ICO & MoD (26/10/2009)
- Related Lines to Take: LTT148
- Related Documents: DBERR EA/2007/0072, Evans EA/2006/0064
- Contact: RM
- Date: 24/03/2009
- Policy Reference: LTT149
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
There is a public interest in
- 1) Understanding the role of lobbyists and their relationship with government, this includes both
- (a) understanding the mechanics of lobbying and,
- (b) understanding the relationship between government and a particular lobbyist and the influence they exert
- 2) Scrutinising the probity of public officials
- 3) Providing the opportunity for others to present opposing view during the policy development process.
The Tribunal has considered information relating to lobbyists in two recent cases. In Evans v ICO & MoD the information related to an introductory meeting between a new minister and representatives from a firm of professional lobbyists. In DBERR v ICO & FoE the request captured a range of recent meetings between the Confederation of British Business (CBI) and the department. For a fuller introduction to the subject of lobbyists please see LTT dealing with the public interest arguments presented in favour or maintaining the exemptions.
This line sets out some of the public interest arguments in favour of disclosure that were considered in those cases. Points 1 & 2 relate to the role of lobbyists, their influence, the extent to which the level of influence they exert weighs on the public interest and how, because of the influential position they enjoy, there is a need to scrutinise the probity of officials involved in such relationships. Although this is teased out into two separate issues they are in reality closely intertwined.
1) Understanding the role of lobbyists and their relationships with government
Lobbyists aim to influence government policy and decision making in the interests of those they represent. Therefore there is a public interest in understanding both how lobbyists operate and the nature of the relationship and influence that lobbyists have with government.
(a) The mechanics of lobbying.
In DBERR the tribunal stated that disclosure;
- “…enables the public to better understand the mechanics of lobbying in that it reveals the many different ways in which lobbying can take place,..” (para 133e DBERR)
This is a fairly general point. At its simplest level it takes account of value in the public actually understanding how lobbying works and how different interest groups gain access to the policy making process in democratic society. At a more dynamic level access to such information may also enable others to more effectively engage in lobbying activities which in turn would broaden the range of views that would feed into the policy making.
(b) Relationship and extent of influence exerted
There is also a clear public interest in understanding the extent of the influence exerted by lobbyists.
In Evans the tribunal stated that;
- “We accept that there is a public interest in seeing the record of meetings between Ministers and lobbyists. Publication of the record would tend to increase public understanding of the role and influence played by lobbyists in the formulation of public policy; and that is a matter of real public interest and concern; …” (para 28 Evans).
This finding was quoted in DBERR, with the tribunal building on the point by stating;
- “The public interest is stronger in respect of such communications than it might be in respect of communications between ministers and other non-lobbyist third parties because of the undoubted influence that these unelected (albeit representative) lobbying bodies can have on the formulation and development of policy;…” (para 133b DBERR)
In DBERR it became clear from the evidence that the lobbyists in question, the CBI, had what the tribunal described as, “privileged access” (para 117 DBERR) to the department i.e. it had greater access to government compared to other lobbyists. It is clear that this added weight to the public interest in disclosure. In its conclusions the tribunal found that disclosure;
“…subjects the relationship to a certain degree of scrutiny which can assist in ensuring that a particular relationship does not become unduly influential or dependent.” (para 133e DEBERR)
Returning to Evans, one of the pieces of information under consideration was an internal briefing note for the minister prepared in advance of his meeting. Ultimately this was withheld under s40(2), however in relation to the public interest in maintaining s36 the tribunal concluded that;
- “There is a clear public interest in disclosure of the briefing note since it would throw light on the nature of the meeting between the Minister and lobbyists; and on how that relationship is viewed and developed. We accept it is in the public interest to increase transparency in this way. That public interest is present regardless of whether the meeting is viewed as routine and unremarkable, or as highly sensitive and exceptional.” (para 46 Evans)
It can be seen from these quotes that there is a public interest in revealing the impact that lobbyists have on policy making, how persuasive their opinions are and whether the government comes to rely on any particular lobbyist. Therefore there is a public interest in understanding not only the degree to which a lobbyist’s input has shaped a specific policy issue but also in gaining an insight into how the government views it’s relationship with any particular lobbyist as this will determine the extent to which it is able influence a broader range of policy issues.
There is also a public interest in being able to make evidence based judgements on the extent to which different interest groups influence policy making and the range of stakeholders that are consulted with, for example whether business interests or non governmental organisations dominate the process.
Building on this point, in DBERR the CBI was described as having ‘privileged access’ to government. Although it can not be suggested that there is anything inherently wrong in government giving priority to those lobbyists that which it considers to have the greatest expertise in an particular field or which represents a significant number of stakeholders, there is clearly a value in the public having access to information that reveals that the lobbying system is fair and even-handed.
It is also notable in Evans that the applicant, a journalist, argued that the companies represented by the lobbyists;
- “…receive contracts worth billions of pounds from the MoD. It is crucial in a democracy that the public is allowed to see whether and how commercial pressures influence the formulation of public policy.” (para 16 Evans)
Although the tribunal did not say what weight it gave this particular strand of his argument, it must be that in these circumstances public interest arguments around public spending arise and, potentially, the probity of the officials/ministers involved, which leads us into the next point.
In both Evans and DBERR the issue of probity was touched upon. It is inevitable that where one party tries to influence another issues of impropriety can be raised.
In Evans the tribunal recognised this was so but found that as the actual information in question could not shed any light onto the concerns raised by the applicant then the public interest arguments around probity carried little weight in this particular case.
- “We accept that there is a public interest in scrutinising the probity of those in public positions, but we do not attach much weight to that factor in the particular circumstances of this request. Despite Mr Evans’ best efforts to persuade us that there is public concern about the propriety of those attending the meeting, (particularly around the question of whether Lord Hoyle has or has not properly declared his interest at various times, or whether and how representatives of Whitehall Advisers have obtained passes to the Houses of Parliament) we are not persuaded that disclosing the handwritten notes of meetings of this sort would shed light on these issues. The correct application of the various Codes governing contacts between Ministers and lobbyists may be addressed through other avenues.” (para 29 Evans)
However it can be argued that there will always be some public interest in disclosing information even if it was to reveal nothing about propriety of public officials as withholding it could fuel concern over the relationship between government and lobbyists and there is a public interest in having confidence in the official and elected representatives that serve us. Support for this pint can be found in DBERR in which the tribunal commented that;
- “…there is a strong public interest in ensuring that there is not, and is seen that there is not, any impropriety. We would make it clear there is no suggestion of any impropriety identified in this case.” (para 117 DBERR)
Returning the quote from Evans para 29 the tribunal suggested that in the particular circumstances of that case, it felt the public interest inbeing reassured as to the conduct of a member of the House of Lords could be satisfied through various codes of conduct under which peers have to operate. However it should noted that there are currently no codes of conducts that apply to lobbyists themselves although such legislation exists in the USA and in other EU countries. In the absence of such legislation there will be a weightier public interest in favour of disclosing information that sheds light onto the activities of lobbyists. (may be consider grafting a quote from DBERR para 118)
It should also be noted that it is intended to produce a LTT on the extent to which the existence of other regulatory mechanisms have on the public interest in disclosure.
3) The opportunity to present counter arguments
In DBERR the information related to a range of policy issues into which the lobbyists were having an input. The tribunal considered it important that if lobbyists were helping shape government policy then it was in the public interest for others to know what views had been presented to government so that they could enter the policy debate and put alternative views and counter arguments forward. The important point here is that the tribunal found that if such counterbalancing views were to have any meaningful impact on policy making, these contributions would have to made whilst the policy making process was still ongoing. It is also recognised that this is the very time where the safe space for policy making warrants the greatest protection. This means that where requests are received at the time the policy in question is still being formulated or developed case officers may find the public interest is very finely balanced. This issue is discussed in more detail in the LTT dealing with the public interest arguments presented in favour or maintaining the exemptions at point 2 – ‘Safe Space’. This section must be read to gain a fuller understanding of this important issue.