By Ibrahim Hasan, IBA Solicitors, Dewsbury


Iraq controversy Freedom of information always seems a good idea to a political party while it is in opposition. I am sure that the architects of New Labour did not envisage that it would have such a profound impact on them when they finally got into power. Two recent decisions under section 35 of the Freedom of Information Act 2000 have, no doubt, sent a shiver down the spines of Messrs Brown and Co - decisions that look set to shed even more light on the most controversial decision made in recent times by a UK government - the war against Iraq.

In a decision involving the Cabinet Office (19 February 2008), the complainant requested cabinet minutes and records relating to meetings held from 7-17 March 2003 when the Attorney General's legal advice concerning military action against Iraq was discussed. The Cabinet Office confirmed that, during the period in question, there were two meetings of the cabinet. However, it withheld the information under the exemptions in sections 35(1) (a) and (b) ('Formulation of government policy' and 'Ministerial communications'). The Information Commissioner ruled that the public interest in disclosing the cabinet minutes, (subject to some redactions), in this particular case, outweighs the public interest in withholding them. He stated that disclosure would allow the public to more fully understand this particular decision. He gave weight to several public-interest factors including the gravity and controversial nature of the subject matter, accountability of government decisions, transparency of decision-making and public participation in government decisions. If the Cabinet Office does not appeal, it will be the earliest disclosure of cabinet minutes following such a controversial decision.

The Foreign and Commonwealth Office recently ended a three-year legal battle by releasing a draft version of the Iraq dossier (written by John Williams) pursuant to a decision by the Information Tribunal (Foreign and Commonwealth Office v Information Commissioner [22 January 2008]). It had objected to disclosure on the basis that the draft was exempt information under section 36(2) (b), that is to say that disclosure would inhibit, or would be likely to inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation, and the public interest in maintaining the exemption outweighs the public interest in disclosure.

The tribunal ruled that since much of the information about the drafting of the Iraq dossier had already been put in the public domain by the Hutton Report, there would be little 'chilling effect' on civil servants' relationships with ministers caused by the fear of future advice and recommendations being disclosed. In its view, disclosure of the draft report might be capable of adding to the public's understanding of the issues in question.

Personal problemsThe section 40 exemption continues to be the subject of rigorous debate among information lawyers. Of course the first question is whether the information being requested is 'personal data' within the meaning of section 1 of the Data Protection Act 1998. Much has been written over the years about the significance of the Durant decision (Durant v Financial Services Authority [2003] EWCA Civ 1746), which seems to have substantially narrowed the definition of personal data.

In the words of Lord Justice Auld: '...not all information retrieved from a computer search against an individual's name or unique identifier is personal data within the act... It seems to me that there are two notions which may be of assistance. The first is whether the information is biographical in a significant sense, that is, going beyond the recording of the putative data subject's involvement in a matter or an event that has no personal connotations, a life event in respect of which his privacy could not be said to be compromised. The second is one of focus. The information should have the putative data subject as its focus rather than some other person with whom he may have been involved or some transaction or event in which he may have figured...'

The recent Information Tribunal decision in Harcup v Information Commissioner and Yorkshire Forward (5 February 2008) follows the narrow definition of personal data espoused in Durant. The tribunal ruled that Yorkshire Forward was not entitled to withhold the names of the individuals who had attended events or corporate hospitality organised by Yorkshire Forward, because these did not constitute personal data. It rejected the commissioner's argument that, because the information identifies where the data subject was at a particular time, it is biographical information. It ruled that the information was not 'biographical in a significant sense'. Attendance at any event must always have personal connotations, if all that is required is attendance. Clearly, Lord Justice Auld was suggesting something further was required.

The second limb of the Durant test is that of focus. In deciding on the focus of the information, the tribunal ruled that consideration must be given to the subject matter of the request rather than looking at the constituent parts of the information sought. The focus of the request here was the events organised by and the corporate hospitality provided by Yorkshire Forward. It had no personal connotations and was not biographically significant.

In the light of the above, the tribunal ruled that the requested information was not personal data and so the section 40 exemption was not engaged. It did however rule that releasing a person's name and employer would be personal data. However, here the information could be disclosed in the form of two separate lists which could not be correlated.

This decision proves that the commissioner's interpretation of personal data is not the final word on the matter. It will be interesting to see whether he revises his Technical Guidance Note (Determining what is personal data) published in August 2007, on which most of his arguments before the tribunal were based. More legal cases are on their way that will consider the Durant definition, including one before the House of Lords, so watch this space.

Public authoritiesThe section 42 exemption is often relied upon by public authorities when refusing to disclose legal advice. It has been the subject of many decisions by the commissioner and the tribunal. Despite it being a qualified exemption, no decision has (until now) ever required disclosure of legal advice on public-interest grounds. Indeed, following the tribunal decision in Bellamy v The Information Commissioner (3 April 2006), which stated that 'there is a strong element of public interest inbuilt into the privilege itself', most public authorities were almost treating section 42 as akin to an absolute exemption.

On 15 February 2008, the tribunal ruled for the first time that legal advice should be disclosed on grounds of public interest. In Mersey Tunnel Users Association v Information Commissioner and Merseytravel, the request concerned the legal advice received by the public authority in respect of the way it made repayments of loans from various local authorities. The overall consequence of following the advice was that for many years (and to this day) the public authority used operating profits to pay off the loans rather than reduce the tolls. This was done despite the objections of the complainant's organisation, which represented the views of tunnel users.

In deciding to order disclosure of the advice on public-interest grounds, the tribunal considered various factors. First, the 'striking circumstances in this case that a public authority has pursued a settled course over a period of many years, involving tens of millions of pounds, and in effect preferring one sector of the public over another in circumstances where legitimate and serious questions can readily be asked about both the power to make the payments and the obligation to do so'.

Second, it gave weight to the age of the advice. It found counsel's opinion was still live and relied upon but was not recent {ten years old in fact). It stated that different considerations apply to a request for a recent opinion, a request made before it can be said, as in this case, that the authority has clearly embarked on a settled course of action. In the case of the former, there would be tactical questions involved and the prospect of challenge through other routes (legal, the ombudsman or the auditor) is more real when action is first taken than when it has continued for years.

Third, the context of the legal advice is also an important factor in determining where the public interest lies. The tribunal stated: 'If it is permissible to differentiate between the weight given to privilege in different contexts - and we think it is, given that the balance must be struck 'in all the circumstances of the case' - then a question of pure public administration, such as the one in this case, where no significant personal interests are involved... is at the opposite end of the spectrum of importance to, for example, legal advice in a criminal or childcare case.'

Finally, the tribunal also suggests that thought should be given as to whom the legal advice protects, individuals or corporations: 'We accept that public authorities are entitled to the protection of legal professional privilege on the same basis as natural persons... but that if the issues addressed in the advice do not affect individuals significantly, there is less inbuilt weight attaching to the exemption.'

This is a significant decision for public authorities and their legal advisers. It demonstrates that legal privilege is not and never has been an absolute exemption. No longer can lawyers and their public authority clients hide completely behind the cloak of privilege.