Some years ago, the government commissioned the Tasker Report into the conduct of senior managers in the prison service, which had given rise to extensive and adverse publicity. A number of parliamentary questions were asked about the report. As is the usual practice, civil servants prepared advice for use by the prisons minister, Maria Eagle, in responding to those questions. Kikugawa v IC and MOJ (EA/2011/0267) involved a request for copies of those advice notes. The MOJ refused to disclose them, relying on s. 36(2)(b) FOIA (prejudice to the free and frank provision of advice or exchange of views), the prerequisite for which is the issuing of a ‘reasonable opinion’ by the ‘qualified person’ (here, the minister) as to the likelihood of those prejudices.
The Tribunal found the exemption to be engaged. Points to note as regards the ‘reasonableness’ of the opinion this, which points towards a margin of discretion:
“The opinion must be her opinion so she cannot simply sign a submission without reading it, though nobody suggests that she did so. Deciding to approve a submission by flipping a coin (an example given by the ICO) does not fail the test because the opinion adopted is unreasonable but because the minister formed no opinion at all. The same principle would apply, though perhaps less vividly, where the minister received a submission advocating this opinion which offered no reason, however slight, to form it. Nobody can truly form an opinion where he or she is deprived of any shred of information on the issues involved. Provided the opinion is formed by the minister, however, it may be debatable how far the Tribunal is entitled to inquire into the mental processes adopted. A degree of caution may be appropriate when approaching the supposed requirement for a “reasonable opinion reasonably formed”.
The requester said the opinion had been biased. The Tribunal disagreed:
“The test is reasonableness, not the apparent objectivity of the QP. If the QP has formed an untenable opinion because of a conflict of interest, then the opinion does not satisfy s.36(2), not because it is the opinion of a biased QP but because it is unreasonable. In fact, the complaint that it is the minister concerned with the PQs whose opinion is sought is unrealistic since it is she who is by far the best placed to form a judgement on the matter. Equally, it is hard to see how officials who had no involvement whatever with the PQs or the background facts could provide an informed submission.”
The requester alleged that the submissions to the minister had been “bogus”, false or “deliberately misleading”. Although the Tribunal noted colourfully that “it is inevitable that, in the stream of advice and comment passed to ministers in the process of answering hundreds of PQs there will be chaff as well as wheat”, it did not find the requester’s allegations to be well founded.
Finally, this was one of those (increasingly rare, it seems) cases where the Tribunal saw force in the ‘chilling effect’ argument:
“The Tribunal is frequently pressed by government departments with claims as to the “chilling effect” on frank communication of disclosure of internal discussions and reports. The Tribunal is not always impressed by them. Here, though, we are dealing with a vital and sensitive interface between minister and civil servant. This is an area of government where the need for confidentiality is clear because the points that need to be made to a minister may be based on evidence of varying strength and may involve strong criticism of the questioner or another member or third party. The official offering advice may be understandably reluctant to make them public, whilst properly concerned that they should be before the minister. It is for the minister to decide what should be used, what rejected, what is too tenuous to be relied upon.”
For all these reasons, the Tribunal firmly rejected the appeal.
Robin Hopkins