Tag Archive for FOI section 35

Safe space under threat?

An FOIMan info-graphic.

Chart showing ICO decisions on s35 by Cabinet Office

Last week an FOI Commission was set up by the government, and one of its aims is to consider “whether the operation of the Act adequately recognises the need for a ‘safe space’ for policy development…”. The section 35 exemption described in the last Exemption Index post can only be used by central government and it is designed for exactly that purpose. The Commission may find the image above helpful in reaching a judgment.

Incidentally, the three decisions that were overturned were refusals to disclose:

  • the number of times the “Reducing Regulation Committee” has met;
  • minutes of Cabinet Meetings relating to the 2003 invasion of Iraq;
  • and information relating to the takeover of Rowntree’s in 1988.

Civil servants who fear their advice to Ministers on important current issues will be disclosed are overestimating the power of FOI…

Update (27 July 2015)

The post above was a bit of an experiment, prepared in a hurry. It was only afterwards that I realised that the figures here are just the tip of the iceberg.

If you look at the Ministry of Justice’s annual reports on government FOI performance, you can see how many FOI requests were received by the Cabinet Office over a comparable period (it would be difficult to directly correlate the two sets of statistics, but for these purposes the five year period 2010-2014 should be close enough). You can also see how many times the Cabinet Office applied the section 35 exemption over this period:

Year |Requests received|s.35 used

2010    1176                     75

2011    1679                     115

2012    1607                     103

2013    1759                     79

2014    1660                     111

Total    7881                     483

In other words, the use of the exemption for policy development and formulation, protecting the safe space which the government believes to be under threat, went unchallenged 93% of the time. The three cases that the Commissioner overturned represent approximately 0.6% of the use of s.35 by the Cabinet Office. (Taking into account the partially overturned cases, it rises to 1.5%).

I should also say that the reason I selected the Cabinet Office was that they use this exemption more than any other government department.

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