The Freedom of Information Act 2000 (FOIA) is starting to come of age (it is discussed at pp 560-65 of the book). Like the Equality Act 2010, FOIA can make a powerful case to be a “constitutional statute” of the first rank of importance, even if most lawyers would not yet see it in the same terms as the Human Rights Act, the European Communities Act or the Scotland Act. True, FOIA has not yet demanded a great deal from our appeal courts, but the relative absence of leading appeal court case law and the relative importance of the regime established by the statute, should not be confused for one another.
FOIA has its critics. Tony Blair’s extraordinary views are recorded at pp 564-5 of the book. And FOIA has its myths: as is the case for some of those who seek the reform of the Human Rights Act, so too are some of those who question the wisdom of FOIA prone to exaggerate the dangers which the Act is said to have generated.
FOIA, passed in 2000, came fully into force only in 2005. Over the summer the Justice Select Committee in the House of Commons published a valuable report examining FOIA’s achievements — and drawbacks — to date. (This is a good example of Parliament undertaking the task of post-legislative scrutiny.) The report is balanced and well informed: it is an impressive document. It concludes that FOIA “has been a significant enhancement of our democracy” (para 241). Its most interesting chapter is Ch 6, on “policy formulation, safe spaces and the chilling effect”. In this chapter the report addresses what, politically, have been the most pressing challenges to FOIA to date, challenges which raise difficult and important constitutional and legal questions.
These challenges focus on section 35 of FOIA and, to some extent, also on section 36. Sections 35 and 36 provide for two of the Act’s various exemptions. Neither is an absolute exemption: both are subject to the Act’s “public interest” test (in section 2: this is explained at p 562 of the book). Section 35 provides that information relating to “the formulation or development of government policy” or to “ministerial communications” is exempt from disclosure (if it meets the public interest test); section 36 provides that information the disclosure of which “would, or would be likely to, prejudice the maintenance of the convention of the collective responsibility of Ministers of the Crown” is likewise exempt.
In a series of cases the Information Commissioner and/or the Tribunal have ruled that information should be disclosed notwithstanding that it relates to the formulation of government policy or that it concerns collective Cabinet decision-making. In these cases the Commissioner and/or the Tribunal have ruled that the public interest in disclosure outweighs the public interest in maintaining a “safe place” for the candid and confidential discussion and development of government policy.
Four times now ministers have exercised their veto to override such decisions of the Commissioner/Tribunal (the first of these four occasions is recorded at p 563 of the book). The most recent such occasion came in May 2012 when the Secretary of State for Health (Rt Hon Andrew Lansley MP) vetoed the publication of a risk register that had been prepared by his Department in respect of his highly contested reforms to the health service in England (see now the Health and Social Care Act 2012). The first three exercises of the ministerial override (or veto) concerned section 36 and the safeguarding of collective ministerial responsibility; Andrew Lansley’s use of the power was the first occasion on which it has been exercised in respect of section 35. The Tribunal had ruled that such was the public interest in the NHS reforms that the risk register should be disclosed. The Secretary of State disagreed and gave reasons to the House of Commons explaining his decision. The Information Commissioner presented a report to Parliament on the affair, in which the judgment of the Tribunal and the opinion of the Secretary of State are summarised. The Information Commissioner was clearly of the view that the Tribunal was correct and that the Secretary of State was wrong to use his veto in this instance, not least because he was able to point to other instances in which risk registers had been disclosed without their disclosure having caused any apparent diminution in the candour of officials’ work for or advice to ministers.
Within government there are appear to be three (related) concerns about the interpretation and application of the public interest test in the context of section 35 of FOIA. The first is that the position is uncertain: sometimes the Commissioner/Tribunal will rule that the public interest favours disclosure; other times they will rule that it does not. What is needed, in the opinion for example of Lord O’Donnell (former Cabinet Secretary and Head of the Home Civil Service) is clarity on the matter. The second is that the Commissioner/Tribunal are ordering disclosure in too many cases in which the architects of FOIA had imagined that disclosure would not be ordered. This was the thrust of Jack Straw’s evidence to the House of Commons Justice Committee (Mr Straw was Home Secretary at the time of FOIA’s passage through Parliament). Mr Straw suggested to the Committee that the section 35 and section 36 exemptions should be recast as absolute exemptions (and therefore no longer subject to the public interest test). The third is that the consequence of these concerns is that there is a “chilling effect” in government: officials are less open and less candid (at least on paper and by email) than they were formerly, for fear that their work will not remain confidential. On this view, the “safe space” in which officials need to work requires to be both safer and larger, in order to ensure that the quality of government decision-making does not diminish.
The Justice Committee considered these views carefully and in detail in Ch 6 of its report and concluded that they could not be shown to require amendment to the Freedom of Information Act. For the Committee, the ministerial veto was enough of a guarantee that the “safe space” would be preserved (see para 198). The Committee noted that FOI requests are far from the only means by which the Government may have to disclose information it would rather keep secret: the proliferation of public inquiries has also seen the Government forced to release all manner of information that would not, without the inquiry, have been made public. The Committee stated as follows (paras 200-1):
We are not able to conclude, with any certainty, that a chilling effect has resulted from the FOI Act … We do not recommend any major diminution of the openness created by the Freedom of Information Act
Two questions remain apt for discussion. First, when there are competing public interests, some of which push in favour of disclosure and others of which pull in favour of non-disclosure, how can we decide which outweigh the others? And secondly, who should decide this? An independent tribunal, or a minister (responsible, as he is, to Parliament)? Is it a matter of legal judgment, or a question ultimately of political judgement? FOIA gives the last word to the minister. Should it? Jack Straw told the Justice Committee that any other arrangement would have meant that FOIA would never have been passed: his Government would have dropped it (see para 169 of the Committee’s report).