Tag Archive for Exemptions

Reasonably forgetful

FOIMan warns that a qualified person should be careful what they say in public – it might come back to haunt them…

Downing Street and Whitehall Street SignsSection 36(2)(c) of FOIA allows public authorities to refuse to provide information where, in the reasonable opinion of the qualified person, the effective conduct of public affairs would or would be likely to be prejudiced. As explained previously, the qualified person is either specified in the Act, by Ministers, or is the most senior decision-making body in the organisation.

But what would prevent an opinion from being “reasonable”? The fact that the Commissioner or a Tribunal panel might disagree with it isn’t sufficient. In the past, sometimes appeals of section 36 cases have found that failure to properly document the decision, or to make it at the right time, might prevent an opinion being reasonable. Occasionally the substance of the opinion might be found not to be reasonable. Unusually though, in a recent case before the First-Tier Tribunal (FTT) the qualified person themselves had made the key argument in favour of disclosing the information. Only it wasn’t in the documented opinion, but at a Select Committee hearing sometime beforehand.

The FTT case arose from a request asking for correspondence between Tony Blair and the Advisory Committee on Business Appointments (ACOBA). Ex-Ministers are expected to consult ACOBA if they are considering accepting a business appointment. It is one of the checks put in place by the civil service to try to avoid conflicts of interest when Ministers move on.

The qualified person for ACOBA is Baroness Browning, its chair. The appellant – the Deputy Investigations Editor of the Daily Telegraph – pointed out that the opinion given by Baroness Browning made no reference to the importance of the “fourth estate”, journalism. Which as it turned out seems to have been a bit of a mistake.

Why? Because previously both Baroness Browning and her predecessor had explained to MPs that the scrutiny of business appointments by the Press played an important role in encouraging Ministers and ex-Ministers to cooperate with ACOBA. So the Tribunal agreed with the appellant that the qualified person’s opinion could not be reasonable if it failed to acknowledge this important role played by journalism. Especially given that they themselves had previously pointed to it as being so important.

Once again, we see that the oft-repeated mantra that FOI is applicant and purpose-blind is an over-simplification. There have been quite a few decisions over the years that recognise that the aims of journalists in particular may nudge decisions in their favour.

Of course, this case also suggests that senior officials ought to be careful what they say on record, especially if they are a qualified person for FOI purposes. Their comments might well come back to haunt them.

Source: E. Malnick v IC, EA/2016/0055, 3 November 2016 (with thanks to the Campaign for Freedom of Information for highlighting)

Of interest? The public interest test under FOI

FOIMan looks at the significance of the public interest test under FOI.

freedom-of-information-graphic-smallMost of the exemptions in the Freedom of Information Act (FOIA) are “qualified” exemptions, meaning that the public authority has to consider not just whether the exemption applies, but also whether the public interest in withholding the information outweighs the public interest in disclosing it. The phrase “public interest” is bandied around a lot, and not just in FOI contexts.

The public interest in a FOI context means something which benefits the public in general. Just because something is interesting, it doesn’t necessarily mean that it would be in the public interest to disclose it.

There might be many reasons why it might not be in the public interest to disclose information. Perhaps it would lead to higher public expenditure, or would place employees or the public at risk. Conversely, there can be very persuasive reasons for disclosing information, not least the fact that FOI itself demonstrates the need for transparency and accountability. The public interest test is about weighing competing arguments of this type and deciding which arguments have most gravity, or seriousness.

I would argue that the public interest test is fundamental to UK FOI. Whilst in many cases it would be impossible for the Information Commissioner or for the courts to disagree that an exemption applies, the existence of a public interest test provides for an element of independence. Ultimately, the Commissioner or the tribunals can, and often do, take a different view of where the public interest lies from the public authorities that originally received the request. It means that the power to decide can sit with an independent arbiter rather than the public body or the government.

My latest piece for PDP’s FOI Journal looks at the public interest test in more detail, including what it is and how to do it.

FOI and reporting of foreign workers

FOIMan looks at claims that FOI may be an obstacle to the government’s plans to force businesses to report on numbers of foreign workers.

Whitehall Street SignLast week’s Conservative Party conference produced many “Seriously?!” moments, but none more so than the speech by Amber Rudd, the Home Secretary, and specifically the proposal to require businesses to report on foreign nationals they employ.

Not surprisingly, many have been critical of this proposal, and over the ensuing days, including on the Sunday political shows, the government has “clarified” or “rowed back” on its position, depending on who you read. The current position (which may have changed again by lunchtime) appears to be that businesses would provide government with figures but not names, and that these wouldn’t be published.

I try to avoid social media at weekends but during a weak moment I happened upon an FOI twist yesterday afternoon. A number of people, most notably Harriet Harman, the senior Labour MP, were suggesting that government would not be able to keep the “list” secret because of FOI.

So would FOI really mean that information provided by businesses about foreign nationals on their payroll would have to be disclosed? Is this another aspect of the proposed policy that government has overlooked?

Well, probably not is the answer on both counts. As several people pointed out, section 40(2) of FOI (the exemption covering personal data) would apply to names of foreign nationals and indeed to any information that could be used to identify foreign nationals. Even if the government only required numbers to be reported, this would be an issue with the numbers reported by thousands of small businesses, where the numbers of such employees would be so low that they would enable individuals to be pinpointed. Section 40(2) of FOI would provide protection for these figures.

The other concern would be that even where figures would not allow individuals to be identified, the effect would be to expose companies to public criticism or worse. In other words that businesses would suffer from being “named and shamed” irrespective of the Home Office’s intentions.

There are several exemptions that might assist. If the businesses gave the data on the understanding that it was being provided in confidence (as government ministers now seem to be suggesting it would be), section 41 of the Act would likely apply. The argument could be made that disclosure would be likely to prejudice the commercial interests of the companies concerned (section 43(2)), or even prejudice the prevention of crime (s.31(1)(a)), or endanger the safety of individuals (s.38(1)). Chris Cook, the BBC Newsnight journalist, pointed out on Twitter that the legislation introducing the requirement to report figures could make it a legal requirement that the figures will be confidential. This would allow the Home Office to use the s.44 exemption which prevents FOI disclosure where this would conflict with another legal requirement.

So there are several ways to prevent disclosure of information about the employment of foreign nationals by businesses through FOI once the Home Office collected the data. There is a much higher risk that the data might be accidentally disclosed through human error – or indeed deliberately released by a disgruntled or politically-motivated individual.

So FOI isn’t an obstacle to what Amber Rudd seems to be contemplating. But I’m not unhappy that politicians and other observers are thinking about how FOI and openness rules might affect government policy. And I’m sure there will be more serious problems for the government if it does choose to pursue this agenda.

The Exemption Index – FOI Section 35

Exemption Index logoFOIMan looks at the topical – and controversial – exemption in FOI that is designed to protect a “safe space” in central government.

Summary

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 affected

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

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 [2008] 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, [2015] UKUT 159 (AAC), 30 March 2015

Recommended reading

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

FOIMan says

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

A qualified opinion

FOIMan explains who is “qualified” to give an opinion under the exemption for prejudice to effective conduct of public affairs (section 36).

Picture of my Masters graduation

I may be qualified, but I’m not a qualified person

If you’ve ever had a freedom of information request turned down under the exemption at section 36 covering prejudice to the conduct of public affairs, you will be familiar with the phrase “qualified person”. There’s sometimes confusion over what this means, so I thought I’d devote a brief post to it.

How does one “qualify” for this role? Is there an exam? Do you get letters after your name?

The “qualified person” is not a fancy name for the organisation’s FOI Officer as I’ve seen suggested once or twice. And it isn’t just someone picked at random by the public body to make decisions about what can and can’t be released.

The qualified person is someone very specific. The Act itself lists a range of organisations and specifies exactly who the qualified person is. For government departments it is a minister. For the Greater London Authority it is the Mayor of London. Rather bizarrely this means that Boris Johnson can decide whether or not information held by the London Assembly which is supposed to hold him to account should be disclosed, which always struck me as an oddity of the legislation when I worked there. But for many parts of the public sector it is not spelt out in the Act. Instead, it provides that a minister should specify who the qualified person is for those organisations. In practice this means that Secretaries of State or their ministers have issued orders declaring who the qualified person is for areas within their brief. For example, David Willetts, the minister for higher education, has issued such an order indicating that Vice-Chancellors or their equivalent should fulfil this role in the higher education sector (which, helpfully, since the content of the BIS website was moved to www.gov.uk, I cannot now locate!). In local authorities, DCLG has set out that Chief Executives and Monitoring Officers should be the qualified person.

What are the practical consequences of this? Well, if you’re an FOI Officer make sure you know who your qualified person is. I’ve seen responses where the authority clearly didn’t understand this and because of that the exemption is invalid. In the event of an appeal to the Information Commissioner, one of the first things he’ll check is whether the decision was taken by the right person, and he may ask for evidence that the person concerned is the qualified person for that public body. For requesters, it’s worth checking if the person who made the decision was the “qualified” one for the same reason. An authority that doesn’t understand this provision is probably failing to understand other basic requirements of the Act.

For more on section 36, see my exemption index post.