Freedom Of Information: Should policy discussions be kept under wraps?

Should policy discussions between officials be disclosed under the Freedom of Information (FOI) Act? Or should they be withheld to reassure civil servants that they can speak frankly, safe from the press and public's prying eyes?

These issues were central to two recent High Court cases. Each involved the Government challenging rulings by the Information Tribunal that such material should be disclosed.

The first involved a request for the submissions which the Export Credits Guarantee Department (ECGD) received from other government departments about a proposal to extract oil and gas near the island of Sakhalin, north of Japan. The project is contentious because oil spills could endanger a near-extinct species of whale.

Friends of the Earth applied for the information under the environmental information regulations, which provide a similar right of access to the FOI Act. The decision under both laws is simple: does the balance of public-interest arguments favour disclosure or confidentiality?

A critical issue has been how much weight to give to the sensitivity of the documents themselves. The Government argues that the decision-making process itself requires "space to think", even where the information itself is innocuous. In earlier cases it has taken this to absurd lengths arguing for the withholding of even the blandest minutes.

The Tribunal, on the other hand, has been impatient with general arguments and insisted that the Government should show how disclosure of the actual information involved would harm the public interest. In the ECGD case the Tribunal concluded that disclosure of one of the three submissions would improve, not harm, the quality of decision-making and that another did little more than ask to be kept informed.

In court, the Government argued that the Tribunal had made an error of law by refusing to give any weight at all to its arguments about frankness and collective ministerial responsibility. The judge accepted that these factors should be taken into account, but it also found that the Tribunal had done so. It made no criticism of the Tribunal's view that these arguments were not trump cards in favour of confidentiality. The Government's challenge was dismissed, though an appeal to the Court of Appeal is still possible.

The other case involved a 2004 review of the readiness of the identity-card programme's IT systems which the Tribunal also held should be disclosed on public-interest grounds. The Government argues that doing so would make it impossible for officials to speak frankly to those carrying out such "gateway reviews" in future.

In a surprise move, the Attorney General has intervened on behalf of the Speaker of the House of Commons to argue that the Tribunal had breached parliamentary privilege by quoting a select committee report in support of its decision, and that this breaches the 1689 Bill of Rights prohibition against a court questioning statements made in Parliament. The AG argues that if such reports are accepted as evidence, the other party must have the right to challenge them, which would inevitably breach privilege.

The irony of this case is that the 2004 report, of the work and pensions select committee, had questioned whether "the current levels of secrecy are necessary".

Maurice Frankel is director of the Campaign for Freedom of Information