Keeping a diary (secret)

FOIMan explains that it can be difficult to keep an official’s diary secret under FOI.

The Guardian yesterday reported on the outcome of an FOI request that it made to the (then) Department for Communities and Local Government (DCLG) for minister James Wharton’s diary in 2016. The diary eventually saw the light of day after the First-Tier Tribunal ordered its disclosure.

I’ve previously written here about my experience with a request for the Mayor of London’s diary way back in 2006. On that occasion, one of the Mayor’s officials had accidentally disclosed the entire Mayoral diary to a national newspaper, complete with details of the Mayor’s fitness and cosmetic routines.

My next piece for PDP’s Freedom of Information Journal, to be published next month, coincidentally covers the subject of FOI and diaries in depth. For the meantime, however, here’s a brief summary of the arguments that public authorities often make in relation to officials’ diaries and their likely success.

The information is personal data (s.40(2)): private information, such as Mr Livingstone’s hair and fitness regime, but also his home address can be redacted, justified using s.40(2). This will also be relevant for names of some people that the official meets with where it would be unfair to disclose them (e.g. junior officials, members of the public, etc.). However, it’s unlikely to be unfair to disclose meetings of MPs with Ministers, say.

The information is not held: if it is recorded in the diary, it is held – it doesn’t matter what it relates to, or when the event took place (see my previous post on the Lansley diary for more discussion of this point).

It would cost too much to disclose the diary: it is difficult to argue that s.12 (the cost limit) applies if the applicant just wants the whole diary, though it might be relevant if they are asking for certain types of extract, since this will involve locating and extracting the information. Section 14(1) – the vexatious provision – might be relevant if the applicant has asked for a diary covering a long period of time, if it can be shown that officials would have to spend a vast amount of time identifying and redacting entries from amongst the diary content.

The content relates to policy formulation/running of a ministerial office (s.35): only relevant to central government. Hard to argue that a ministerial diary does not relate to running of a ministerial office, and there will certainly be entries that relate to the formulation and development of policy, but harder to make the case that the public interest favours withholding what is usually fairly anodyne stuff. (‘meeting with officials about BREXIT’ for example would hardly be a surprising entry to find in a minister’s diary at present and doesn’t really tell the public much that could be construed as damaging.)

Disclosure would prejudice the effective conduct of public affairs/inhibit free and frank advice (s.36): in practice not very successful in decisions reached by the Commissioner and tribunals for similar reasons to s.35.

National security concerns (ss.23/24): information about a public figure’s location at particular times may well put them at risk.

Information is already published or will be published (s.21/s.22): frankly, this is public authorities’ best option. Adopting a routine schedule of publishing the diary of a prominent official (especially if they know there is interest in this record) means that s.21 (otherwise accessible) can be applied to details already published, and that s.22 (future publication) can usually be used in relation to parts of the diary yet to be made available. As is so often the case, adopting a pro-active rather than reactive approach to this information is of benefit to public authorities. Whilst it means that the bulk of a ministerial diary, say, will end up in the public domain, and that officials will have to carry out work to prepare it, it does allow them to retain a degree of control over what is published and when. It is also going to be easier for officials to prepare the diary to their own timetable than under the pressure of an FOI request deadline. Information that is legitimately exempt under other exemptions can, of course, still be redacted.

Watch out for my PDP article on diaries and FOI, which I’ll publish here in a month or so, and which goes into more detail on all this (including examples).

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