A warning shot across the bows?

FOI Man considers the immediate impact of the Justice Select Committee’s report on FOI – on the Information Commissioner.

Before taking a break to follow the marvellous Olympic and Paralympic action, I last wrote here about the Justice Select Committee’s post-legislative scrutiny report. We’re still waiting to hear how Government will respond to the Committee’s recommendations, but I thought I’d write about the possible immediate impact of the report.

The headline conclusions have been discussed at some length (for example here by the Save FOI campaign) but what I find most interesting after reading the report more carefully are the messages the Committee appears to be sending to the Information Commissioner and Tribunals.

The Committee hasn’t been overtly critical of the Commissioner and took on board many of the messages Chris Graham put to them in his characteristically robust manner. But if you look closely enough the messages are there.

Notably, there was no recommendation – as some had expected – to make section 35, the exemption covering policy formulation and development, absolute. Whilst the immediate reaction to this of campaigners (including myself) was relief, it is notable that the Committee appears to have agonised at length on the issue of providing a “safe space”. It eventually concluded that it could not justify “any major diminution of the openness created by the Freedom of Information Act”. But it went on to caution:

“we remind everyone involved in both using and determining that space that the Act was intended to protect high-level policy discussions” (paragraph 201)

Who could they possibly be reminding? On the one hand, they were clearly saying to those in Government that they should feel that they could discuss the most sensitive issues without fear of disclosure. Gus, old chap, relax – there is plenty of protection in the Act for your successors to work within.

But the flip side of that is that those “determining” the scope of the safe space should be interpreting it in a way that supports that sense of safety in the Cabinet Office. I sense that at least some of the Committee think the Commissioner (and the Tribunal of course) needs a reminder of this. That perhaps Cabinet papers and NHS risk registers have been a step too far.

And if the Commissioner ignores this friendly advice? Well, the Committee recognises “that the realities of Government mean that the ministerial veto will have to be used from time to time to protect that space.” Back off Graham, or the Government will be at its liberty to flick you the big V.

This isn’t the only area where the Committee appears to be subtly signalling to the Information Commissioner and Tribunals that maybe they’ve been pushing the boundaries of acceptable interpretation of Parliament’s will.

Universities had indicated in their evidence that they were concerned about protection for those carrying out animal research. In their conclusions, the Committee encouraged universities to rely on section 38 (the exemption for health and safety) and stressed that they “expect that the Information Commissioner will recognise legitimate concerns.” (paragraph 222)

Similarly, universities, together with NHS bodies and others, raised concerns about FOI endangering their competitiveness in an environment where they are increasingly competing against private providers. The Committee looked at this and could reach no conclusion as to whether the exemption at s.43 was sufficient to protect public bodies. But they did state explicitly that “there is a strong public interest in competition between public and private sector bodies being conducted on a level playing field to ensure the best outcome for the taxpayer.” (paragraph 231)

It is presumably going to be difficult for the Commissioner and anyone else applying the Act to ignore such strong statements on the practical exercise of exemptions in the Act. Whilst we may have to wait a while to hear what the Government thinks of the Justice Committee’s conclusions on FOI, I wonder if we’ll begin to see their impact on the Commissioner and Tribunals almost immediately.

 

 

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