Line to take - LTT62 - Completion of policy formulation and development in relation to the PIT

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  • Section/Regulation: s2, s35
  • Issue: Completion of policy formulation and development in relation to the PIT
  • Source: Information Tribunal
  • Details: DfES/The Evening Standard (19 February 2007); DWP/Oaten (05 March 2007); OGC/ Dziecielewiski (02

May 2007)

Line to take

Policy formulation / development is a series of separate decisions rather than a continuous process of evolution. A Parliamentary announcement will normally mark the completion of the formulation stage.

Further Information

Although section 35(1)(a) is a class based exemption, consideration of the public interest in maintaining it must take into account the potential harm any disclosure would have on the process of policy formulation or development. That harm is likely to decrease once the process has been completed. Unfortunately it is not always easy to determine when this has happened. However there are a number of recent Tribunal decisions which provide useful guidance when considering this issue. DfES v IC & Evening Standard (EA/2006/0006) concerned access to minutes of the senior management meetings at which a funding ‘crisis’ in schools was discussed, DWP v IC (EA/2006/0040) concerned access to information on how the introduction of ID cards would impact on the Department’s business, OGC v IC (EA/2006/0068 and EA/2006/0080) concerned access to ‘gate way reviews’ in relation to the introduction of ID cards.*

Formulation & Development Vs Implementation

In Awareness Guidance No. 24, on section 35, the approach taken is to note that the terms ‘formulation’ and ‘development’ are often used interchangeably but adds that development may go beyond formulation to involve a process of improving existing policy. In practice whether or not the process is development or formulation may not affect the outcome of the case.

What will be important however is the distinction between policy formulation/development and its implementation, i.e. when the process of policy formulation/development has come to end, a decision has been made as to the policy to be adopted, and that policy is then implemented. It will have a bearing on the weight given to the public interest test in maintaining the exemption (see LTT43), i.e. once a decision has been made on the policy to which the information relates, the risk of prejudicing the policy process is likely to be reduced and so the public interest in maintaining the exemption. (It will also important when considering subsections 35(2) & 35(4).)

In the DfES case the Tribunal itself commented that, “The distinction between formulation/development on the one hand and implementation on the other will prove to be a very fine one in some cases since implementation itself usually spawns policies. …Such cases will be more readily recognised when confronted than defined in advance.” (para 56)

During the investigation of the DfES case (ref FS50074589) it was argued that there was a continuous cycle of policy being formulated, implemented, reviewed and developed. By applying this rationale, information on the implementation on of a current policy can also relate to development of that policy or even the development of a future policy. Such arguments can confuse the application of the public interest test.

When is policy formulation/development complete

In their appeal the DfES presented its argument that development of policy would often be a continuing process described as a “seamless web” (para 40). This argument was rejected by the Tribunal when weighing up the public interest in maintaining the exemption and how this was affected by the timing of the request (para 75(v)).

The Tribunal found that, “When the formulation or development of a particular policy was complete ... is a question of fact. However, s35(2) and to a lesser extent 35(4), clearly assume that a policy is formulated, announced and, in many cases, superseded in due course. We think that a parliamentary statement announcing the policy, ..., will normally mark the end of the process of formulation. There may be some interval before development”. (para 75 (v)) It should be noted that the Tribunal stressed that this did not mean the public interest in maintaining the exemption disappeared completely immediately upon an announcement of the policy.

The Tribunal, in the DWP case, agreed that s35(2), “seemed to envisage policy formulation as a series of decisions rather than a continuing process of evolution” (para 56). In this case, at the time of the request, a Bill had been presented to Parliament which established the principle of introducing ID cards and paved the way for secondary legislation to establish the details of the scheme. Therefore the Tribunal considered the process of policy formulation could be split into a two stages, the first being the high level decision to introduce ID cards, followed by policy decisions on the details of the scheme.

The Tribunal decided that the information requested had been created to inform the high level policy to introduce ID cards and therefore related to a policy decision that had already been taken, (para 57). This reduced the public interest in maintaining the exemption even though the information could be used to inform the more detailed policy issues that were still being considered.

(*) The OGC case is currently under appeal to the High Court.

NB. 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 the Commissioner has commissioned a research project to aid his understanding of the process of formulating and developing Government policy. Until this research is completed case officers should follow the line set out in this Line to Take and should not accept public authority “seamless web” arguments suggesting that policy formulation, development and implementation processes cannot be separated out or differentiated between.