FOI Man takes a flame thrower to the “chilling effect”, and notices how easily it melts away.
A very good friend feared my wrath when he tweeted that “The more I think about, the less I support Freedom of Information.” Of course, I couldn’t leave it at that, could I?
His concern is the same as our old friend the Lord GO’D – namely that public officials and politicians should be able to present all the options without fear that their words will reach the outside world. If they don’t have that assurance, so goes the argument, they will leave out controversial (but possibly important) options, or at the very least won’t write them down. This argument is known in the FOI world as “the chilling effect”.
The chilling effect has been rehearsed most publicly in the attempts to make the NHS Risk Register public. But it is an argument that is regularly trotted out – most often by Government departments.
There’s a myth that the Lord GO’D and many of his predecessors as Cabinet Secretary like to promulgate that FOI means that the Government can’t ever discuss issues without the details potentially being disclosable. But it is just that – a myth.
Yes, the Commissioner and Tribunal have occasionally ordered the disclosure of such policy discussions. And yes, on a number of occasions they have dismissed the chilling effect argument. But in all those cases, there were wider issues at stake. Where Government departments have often come unstuck is that they think that the chilling argument alone should be enough to justify withholding the information. It isn’t. As with the Risk Register, there are a range of issues coming into play which all have to be weighed. That means that public authorities should think carefully about withholding information (which is only right if you’re claiming sanctuary from the duty to disclose information). It’s also why I don’t blame authorities for getting this wrong (or at least taking a different view to the Information Commissioner) on occasion.
To bring this back to my friend’s concern, he suggested that a policy paper on quarantine procedures in the event of a plague outbreak would not now be written because civil servants and ministers would be too afraid of it being disclosed under FOI. Aside from the fact that I’m now worried that my friend has not been reading this blog over the last 18 months, I have a few comments on this.
Firstly, those kind of papers ARE being written, I’m sure, every day in Government. And if they’re not, I want to know why. Government goes on no matter what and if ministers and civil servants are not doing their jobs there is no excuse. The Information Tribunal has regularly dismissed such arguments, and perhaps never more clearly than here:
“In judging the likely consequences of disclosure on officials` future conduct, we are entitled to expect of them the courage and independence that has been the hallmark of our civil servants since the Northcote – Trevelyan reforms. These are highly – educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions.” (Department for Education & Skills v IC & Evening Standard, para.75)
Secondly, there are plenty of exemptions within the Act to protect information of this sort. Leaving aside Section 35 in FOI, which covers the formulation of policy, there are also exemptions for the disclosure of information where that would affect health and safety; for the prevention of crime (presumably disclosure of such a policy would be of great benefit to some terrorists); and possibly others that would apply.
Admittedly, all of these are subject to public interest tests, but if a Government department can’t argue convincingly that there is a public interest in maintaining confidentiality around such arrangements, it’s frankly staffed by idiots.
And if any of the information in the paper was supplied by certain security bodies, that would attract an absolute exemption, which does not require a public interest test.
The trouble is that if you listen to the Lord GO’D and his pals, you’d think that FOI had routinely resulted in material of life and death import being disclosed. It’s not true. The Cabinet Office has been ordered to disclose minutes of the Iraq War discussions (years after the event); the Department of Health was ordered to disclose the NHS Risk Register (after the Government had agreed its policy on the NHS changes); and in both of these cases, the Government exercised its veto to block the disclosure in any case. There is no suggestion that people will die if the information is disclosed – but it hasn’t been in any case.
Put this another way. If a Government Department was asked for any plans it had for dealing with quarantine in the event of an outbreak of plague, and their decision to withhold such documents was appealed, I can confidently state that that decision would be upheld by the Commissioner and Tribunal. They’re people – and not stupid people.
The point is – as I’ve said here before – some FOI decisions may be controversial, but when it comes down to it, FOI provides plenty of protection for information that deserves protection. Not just exemptions, but also a veto in the last resort. Thinking the unthinkable is still possible within Government, and if civil servants or Ministers are using FOI as an excuse not to do so, they really shouldn’t be in the jobs they’re in.