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.

One Comment

  1. 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.

    More and more, I think the argument regarding ‘the chilling effect’ is not a principled argument about the nature of government and damage to the quality of official and ministerial decision making. Instead, it is trotted out by those that wish to be lazy. Not lazy in that they wish to do no work. Rather, they’re very busy with other aspects of their work for government, and don’t want to have to do the extra work that comes with trying to justify secrecy. They appear to have forgotten the first rule of FOI: it’s less work (particularly in the long run) to disclose than to withhold. The arguments of Gus O’Donnell, Blair et al before the select committee and elsewhere, were perhaps more honestly expressed by Lord Reid in Conway v Rimmer:

    “To my mind the most important reason is that such disclosure would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government
    machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind.”

    However, this line of argument, used on many PII certificates seeking to prevent disclosure of policy advice in litigation, was robustly tackled by Lord Scott:

    “As to this, some may think, and I myself think, that an acceptance from time to time of illinformed or captious public or political criticism is part of the price that has to be paid for a democratic and open system of Government. If Government insists on secrecy for the ‘inner workings of the Government machine’ is it in a position to be surprised if criticism is illinformed? Public and political criticism is what every democratic Government must expect. Criticism is captious if one disagrees with it. Those who agree with it no doubt regard it as wise and justifiable. But as to criticism being ‘ill-informed’, Government should, in my opinion, make it its business to do what it can to ensure that its critics are not ill-informed.”

    Lecture to the Public Law Project, 21.3.95

    In addition to the excellent quote from the Tribunal you reproduced, the idea that advice was absolutely protected before the FOI Act came into effect is also nonsense. In a 1980 judgement, Lord Keith wrote:

    “The notion that any competent and conscientious public servant would be inhibited at all in the candour of his writings by consideration of the off-chance that they might have to be produced in litigation is in my opinion grotesque. To represent that the possibility of it might significantly impair the public service is even more so”

    Burmah Oil Co v Bank of England [1980], AC 1090

    There are undoubtedly arguments for protecting ‘the space to think’ in the phase of policy development that takes place before a decision (or interim decision) is made. These arguments need to be counterposed with arguments in favour of public participation in the policy making process. The same ministers that argue for non-disclosure of advice are to be found making statements that governments/public authorities do not have a monopoly on knowledge or wisdom, and frequently proclaim their desire for public or outside expert involvement. Chapter 2 of the recent Civil Service Reform Plan is just the latest example of this.

    The same Plan’s desire to make the supply of policy advice ‘contestable’, and attach more public responsibility to officials for delivery (or non-delivery), seem to be attributable (via other recent references in the Reform Plan, and by Francis Maude) to the desire to examine the New Zealand experience and possibly apply it in the UK. This may well result in one of those ‘unintended consequences’ that secretive policy making is so beset with. In this case the ‘unintended consequence’ would be ironic. Far more policy advice is disclosed in NZ, mostly post-decisional, but occasionally pre-decisional too. It is routine that Cabinet Papers and the relevant Minute are disclosed at the time that government announcements are made. Some of this openness may be due to the fact that Ministers and Departments are, under the Official Information Act, separate public authorities, which has implications for who decides whether the advice to a Minister is disclosed. A recent news report highlights this, showing how an official disclosed their advice to a Minister when his response to an OIA request suggested that she hadn’t done her job of briefing him adequately. If you want greater contestability in provision of advice, and greater public responsibility for officials (and less for Ministers), don’t be surprised if that leads to officials seeking to protect their own backs by disclosing the advice they provided to their political masters and mistresses.

    It is also fair to say that the presence of a ‘purposes clause’ in section 4 of the OIA, which agencies are mandated to keep in mind when taking decisions under the Act, and which makes explicit reference to public participation in the “making and administration of laws and policies” has had a significant effect.

    Your very good friend who is worried about the impact of FOI on policy advice, and other readers of your excellent blog, would probably benefit from reading the Campaign for Freedom of Information’s Discussion Paper [PDF] on access to policy advice. It’s where the quotations above were sourced from, and contains much other useful comparative research. They might also want to read the recent decision of the New Zealand Ombudsmen [PDF] on disclosure of lists of policy advice submissions from the Treasury to the Minister of Finance.


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