In Plowden and FCO v Information Commissioner EA/2011/0225 and 0228, the First-tier Tribunal considered a FOIA request for the record of a telephone conversation that took place on 12th March 2003 between President Bush and Mr. Blair. The Tribunal largely upheld the ICO’s decision notice, and ordered that part of the record should be disclosed.
The significance is in the date, of course: the conversation took place just 8 days before the start of the Iraq war. The UK and US had been seeking a further UN Security Council resolution relating to Iraq. On 10th March 2003, during a television interview, the French President Jacques Chirac commenced about the proposed resolution. The requester, Mr. Plowden, wished to establish whether, during their telephone conversation on 12th March 2003, President Bush and Mr. Blair agreed to take the position that it was the French who had made it impossible to secure a second resolution.
Mr. Plowden’s request was prompted by evidence given by Mr. Straw (Foreign Secretary at the time of the Iraq war) to the Chilcot Enquiry. As well as seeking the record of the Bush/Blair conversation, he sought other information about messages from France to the UK at the relevant time, and about a discussion between Mr. Blair and President Chirac. The FCO initially refused to disclose any of the information sought, but by the time of the Tribunal hearing the Bush/Blair conversation was the only item in dispute.
In relation to that conversation, the ICO’s decision notice distinguished between those parts of the record that contained or reflected information provided by President Bush (“the Bush information”) and those that did not (“the Blair information”); the ICO ordered disclosure of the relevant record, but with the Bush information redacted. The FCO appealed, contending that the entire record was exempt under FOIA section 27 (prejudice to international relations) and section 35(1)(b) (Ministerial communications). Mr. Plowden appealed against the decision to redact the Bush information.
So far as material, section 27(1) provides a qualified exemption for information the disclosure of which would or would be likely to prejudice relations between the UK and any State. Section 27(2) provides a class-based exemption for confidential information obtained from another State (and section 27(3) further defines what is meant by confidential information in this context). Section 35(1)(b) provides a qualified exemption for Ministerial communications.
The Tribunal heard evidence from four witnesses, including Mr. Plowden and Ms Clare Short. The latter was, of course, a member of the Cabinet in 2003: this appears to be the first occasion when a former Cabinet minister has given evidence in a FOIA case about matters that arose during their time in office.
The disputed information consisted of an internal note between the private secretaries to the Prime Minister and the Foreign Secretary, recording the main points discussed in the Bush/Blair conversation. It was common ground between all parties that section 35(1)(b) and section 27(1) were engaged in relation to all of the disputed information. It was also common ground that section 27(2) was engaged for the Bush information.
The Tribunal considered the extent of the information covered by the section 27(2). In their view the ICO had taken too narrow a view of what constituted the “Bush information”. Section 27(2) would cover three things: what President Bush said; any record of whether Mr. Blair agreed; and any record of what President Bush and Mr. Blair discussed and agreed together, where the record did not disclose who originated the subject of discussion. Section 27(2) applied, given the expectations of confidentiality in relation to discussions at this level, even though there was no formal confidentiality agreement.
The Tribunal also considered the public interest balance. It regarded the public interest in disclosure as very weighty indeed. It also considered that there were weighty factors in favour of maintaining the exemptions. As far as section 27(2) was concerned, the likelihood of relations with the US being prejudiced by disclosure of confidential information provided by President Bush to Mr. Blair just before the Iraq war was very high indeed. As to section 27(1)(a), any disclosure could lead to severe prejudice to the UK’s security and diplomatic interests.
The Tribunal reminded itself of the need to consider the actual content of the disputed information, and not just the category of information to which it belonged. It was appropriate to consider the disputed information sentence-by-sentence. The FCO’s approach was unsatisfactory, because it came perilously close to asserting that no information about communications with the US (at any rate at head of state level) should ever be released, and this would turn the qualified exemption under section 27 into a quasi-absolute exemption. Points of this nature are often made in Tribunal discussions of qualified exemptions.
The Tribunal considered that the decision to go to war in Iraq was of exceptional gravity and controversy, and that information that could provide a better understanding of that decision was subject to an exceptionally strong public interest in disclosure. The strength of that interest was somewhat lessened by the existence of the Chilcot Inquiry into the Iraq war; but it was also relevant that Chilcot would probably not be able to disclose the record of the relevant Bush/Blair conversation.
In relation to the Bush information (and on the Tribunal’s wider interpretation of what that information comprised), the public interest balance narrowly favoured maintaining the relevant exemptions; the fact that section 27(2) was engaged tipped the balance. In respect of the Blair information, however, the balance narrowly favoured disclosure.
The case illustrates how, some 9 years on, the Iraq war continues to generate acute controversy in the FOIA context. No doubt it is requests of this kind that prompted Mr. Blair’s notorious statement that he was a “nincompoop” to introduce FOIA. But, as is reflected in the title of this post, political embarrassment cannot always be blamed on FOIA: the well-known “Yo, Blair!” exchange, taking place at a G8 summit in July 2006, came into the public domain because the conversation was unexpectedly picked up by a microphone.