FOIMan looks at the topical – and controversial – exemption in FOI that is designed to protect a “safe space” in central government.
It is vital that we get back to the founding principles of freedom of information. Citizens should have access to data and they should know what is done in their name and about the money that is spent in their name, but it is also vital that the conversations between Ministers and civil servants are protected in the interests of good government.
So said Michael Gove, Secretary of State for Justice, in the House of Commons on 23 June 2015. Since then responsibility for FOI has passed to the Cabinet Office, but the announcement of a Commission to review FOI, and its terms of reference, have made clear that the above remains an objective of the current government. Their primary concern is the availability of a safe space for government deliberations.
What are the best ways to achieve this? What recommendations will the Commission make? Well, if securing the safe space is the primary objective, the most likely sections of the Act to face scrutiny are the exemptions at section 35 and 36. I’ve already produced an Exemption Index post on section 36, but it seemed like this was a good time to fill in that section 35-sized gap in the Index…
Information held by a government department or by the National Assembly for Wales relating to formulation or development of government policy, Ministerial communications, the provision of advice by any of the Law Officers or any request for the provision of their advice, or the operation of any Ministerial private office.
Things that FOI Officers need to know
- “relates to” should be interpreted broadly – so the exemption is very wide in scope, capturing not only Ministerial communications, but also documents that refer to them
- “the formulation or development of government policy” should also be interpreted broadly – it is designed to protect the “safe space” that the government is so concerned about
- the Information Commissioner provides useful definitions of “policy”, “formulation” and “development”
- once the decision has been taken, statistical information used in the formulation or development of policy (or in decisions reached covered by Ministerial communications) will not be exempt
- very unusually, section 35(4) sets out a specific public interest argument in favour of disclosure of factual information supporting policy decisions – as a result, normally such information ought to be disclosed
- Ministerial Communications includes Cabinet papers as well as other communications (including meeting papers, correspondence, ministerial submissions)
- Cabinet papers will rarely be disclosed before 30 (or by 2020, 20) years, but the Commissioner has on occasion ordered disclosure on public interest grounds (decisions which have usually been appealed and/or vetoed)
- This exemption will apply if the Minister’s signature was added to the document – the Information Commissioner therefore expects a robust public interest test to be carried out to counter accusations of abuse
- The Law Officers are the Attorney General, the Solicitor General, the Advocate General for Scotland, the Lord Advocate, the Solicitor General for Scotland and the Attorney General for Northern Ireland
- the part of the exemption covering the provision of advice by those law officers is much wider than legal professional privilege as protected by section 42 – it can cover non-legal advice given by those officers
- the part of the exemption that covers the operation of any Ministerial private office should be interpreted narrowly argues the Information Commissioner – otherwise anything could be withheld if it originated in that office
- the public interest test must be carried out in respect of any use of this exemption – and where government departments have been ordered to disclose information it is usually because the Commissioner or Tribunal disagree with the department over the assessment of the public interest
- the more general the arguments against disclosure, the less likely they are to succeed
- arguments that have worked in the past include: there is still a need for a “private space” on the policy decision because it has not yet been taken; it would expose the relationship between civil servants and ministers to an unhelpful degree of scrutiny and this is argued convincingly by an expert; could affect Ministers’ inclination to seek and rely on formal advice; frankness of comments; the issue is still live; reveals how Cabinet ministers’ views contributed to the development of a policy.
Things that requesters need to know
- The timing of your request is crucial to whether or not the “formulation and development” part of the exemption applies; successful challenges have often revolved around whether this process is complete
- This exemption has a very broad scope, so the best chance of challenging any decision not to disclose is going to be by demonstrating that there is a public interest in disclosure
- Successful arguments include: promotion of better government (s.36 decision but still useful); level of public concern with a policy; the public better understanding the way that senior officials make decisions; the time has passed so sensitivity is not so great; comments are not particularly frank; where some information has been voluntarily published, there can be a public interest in further information being disclosed.
Essential case law
Department for Education and Skills v Information Commissioner and Evening Standard, EA/2006/0006, 19 February 2007
Office of Government Commerce v Information Commissioner  EWHC 737 (Admin) (11 April 2008)
Department for Education v Information Commissioner, EA/2014/0079, 29 January 2015
Department of Health v Information Commissioner and Simon Lewis,  UKUT 159 (AAC), 30 March 2015
FOI and Policy Advice, Campaign for Freedom of Information website, 17 July 2015 [accessed 20 July 2015]
Government Policy (Section 35), Information Commissioner’s Office, version 2, 19 March 2015
Burgess, M. (2015), Freedom of Information: A Practical Guide for UK Journalists, Routledge, p.74
The Exemption Index – FOI Section 36, 23 June 2013
Prince Charles’ Letters and the Veto, 26 March 2015
Commission to look at FOI (and a move to the Cabinet Office), 17 July 2015