Probably the most controversial decision under the Freedom of Information Act was published by the Information Tribunal on 27 January 2009 (Cabinet Office and Dr Christopher Lamb v Information Commissioner (EA/2008/0024 & 0029)), when it decided to uphold the earlier ruling by the information commissioner (see [2008] Gazette, 20 March, 21) that minutes of cabinet meetings from 2003 should be released. These refer to meetings that discussed the attorney general’s legal advice about the Iraq war.
The government argued that releasing such minutes would impede proper recording of free and frank discussion within cabinet. However, the tribunal ruled that the public interest in maintaining the exemption did not outweigh the public interest in disclosure. It gave weight to a number of factors, including that the minutes recorded a momentous decision in British history (to go to war with Iraq), disclosure would allow better understanding and scrutiny of the decision-making process and that some of the information had already been disclosed through other channels thereby reducing the detrimental impact of this disclosure.
The tribunal was at pains to point out that it was by no means setting a precedent and future cases must be examined on their own facts. Despite this, the government moved quickly to override the decision. On 24 February 2009 the lord chancellor Jack Straw (pictured) issued the first ever ministerial veto under section 53 of the act. In his statement of reasons he argued that disclosure would be contrary to the public interest, damaging to the doctrine of collective responsibility and detrimental to the effective operation of cabinet government.
Use of the veto has caused controversy and many have questioned the government’s commitment to true freedom of information. The Campaign for Freedom of Information has said that the decision was ‘an extremely retrograde step’. The information commissioner was more diplomatic: ‘Anything other than exceptional use of the veto would threaten to undermine much of the progress towards greater openness and transparency in government since the FoI act came into force.’
It will be interesting to see whether the government will make more use of the veto in the future in relation to unfavourable tribunal decisions, or whether it will follow the more normal course of appeal to the High Court.
Audit reportsAudit reports are often the target of FoI requests by those who suspect wrongdoing or fraud by a public authority or bodies it is auditing. Where a local authority audit department is investigating allegations of fraud, it often tries to claim the section 30 exemption. This allows information to be withheld if it relates to investigations and proceedings conducted by public authorities. However, a recent decision has emphasised that this exemption can only be claimed where a public authority is holding information about investigations or proceedings that it has a legal duty to conduct.
In Rochdale Metropolitan Borough Council (ref: FS50144991 10/11/2008), the complainant requested a copy of a report detailing the findings of an audit carried out by the council on a local charity. The audit followed allegations that funds were being mismanaged at the charity. The council refused the complainant’s request on the basis that the exemptions in sections 30 and 36 applied.
The information commissioner decided that section 30 was not engaged, because the council did not hold the information pursuant to a legal duty to conduct the investigations or to institute proceedings. The council had argued that it has the power to institute and conduct criminal proceedings for fraud in its own right by virtue of section 222 of the Local Government Act 1972. The commissioner noted that section 222 provides the power for local authorities to prosecute only in cases where it is ‘expedient’ to do so. He considered that, in general, it would not be considered expedient to prosecute where the police or the Crown Prosecution Service would be better placed to decide if a criminal prosecution was viable or warranted. In general, such powers are only used by local authorities to implement trading standards legislation, to address anti-social behaviour, or in other circumstances where the prosecution relates to their specific functions, not the general criminal law.
The commissioner also ruled that the section 36 exemption (prejudice to the effective conduct of public affairs) did not apply in this case, and even if it did, the public interest lay in disclosure. He ordered disclosure of the requested information, except where it consisted of personal information of junior employees of the charity where the section 40 (personal data) exemption could be claimed. However, the personal data of senior employees of the charity was not exempt other than a few sections which impact directly upon the private (as opposed to the public) lives of those individuals.
Law Lords decisionFebruary 2009 saw the first decision by the House of Lords involving the English Freedom of Information Act. I say this because the Lords has already ruled on the Scottish act (Freedom of Information (Scotland) Act 2002) in an appeal involving the Commons Services Agency v Scottish Information Commissioner [2008] UKHL 47. In the present case, the BBC lost an appeal about disclosure of an internal report about the BBC’s Middle East coverage which was written in 2004 (the ‘Balen Report’).
The Law Lords decision was not about the merits of whether the report should be published. It was about the procedural legal matter of whether the Information Tribunal has the jurisdiction to rule on such cases, where the information commissioner has previously decided that the request was outside the realm of FoI in the first place because it involved information held by the BBC for the purposes of journalism. Material of this kind lies outside the act, and the BBC had argued that the Balen Report falls into this category.
The Lords ruled that the tribunal does have the right to consider such cases, so its ruling in favour of publication is valid. Assuming the BBC maintains its line, the substantive arguments on whether the report should be made public will now be considered by the High Court. This is a legal saga which will run and run.
- receiving the report of the directors on the proceedings of the association and the audited accounts for 2008;
- electing directors and reappointing auditors; and
- conducting such other ordinary business, if any, as the rules of the association allow.
Ibrahim Hasan is also a director of Act Now Training
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