Continuing tensions between the Information Commissioner and the Government over the latter’s commitment to Foia

In September 2010, I blogged about an article in the Guardian with the former Prime Minister, Tony Blair, in which Mr Blair commented that he only had two regrets about his time in office: the ban on fox-hunting and the introduction of FOIA (see my post here). Mr Blair’s public lament about the introduction of FOIA was more recently echoed by Gus O’Donnell who, in November 2011, complained to the House of Commons Public Administration Select Committee that the Act was having a chilling effect on government (see further this Guardian article on his comments). The Information Commissioner has previously fought back against this negative commentary on the operation of the Act. Most notably, in his February 2012 submissions to the Justice Select Committee, which is currently undertaking post-legislative scrutiny of the Act, the Commissioner made clear that, in his view, the Act was generally working well. He specifically rejected the suggestion the exemption afforded under s. 35 (government policy) failed to afford the government a sufficiently roomy ‘safe space’ within which to conduct its business (you can find his written submissions here and see also Tim Pitt-Payne QC’s paper on the wider scrutiny process here). In his oral submissions to the Justice Select Committee in March 2012, the Commissioner reinforced these points, asserting that the claims that FOIA was having a chilling effect on government were ‘ greatly overdone’ (see further this Telegraph article on his evidence). In March 2012, the current Prime Minister stepped into the fray, complaining that FOIA requests ‘fur up’ the arteries of government.

This week, the Commissioner has once again gone on the offensive by highlighting within the media his concerns that, despite the Coalition Government’s earlier expressions of commitment to openness and transparency, there is now a pervasive culture within Government of seeking to evade the application of FOIA. See further this interview with the Commissioner in Monday’s Guardian. In the course of his interview, the Commissioner commented that the criticisms of the Act by people such as Tony Blair, Gus O’Donnell and David Cameron were ‘encouraging the use of unofficial, private email addresses and verbal briefings, which would in turn make government less accountable’. Of course, the use of private email accounts is a real hot potato at the moment as the Government is currently appealing a decision of the Commissioner that an email sent by Michael Gove MP through a private email address fell to be disclosed under FOIA (see further the analysis on this case set out in my paper here. My colleagues, Tim Pitt-Payne, Julian Milford and Robin Hopkins are all acting in the Gove appeal).

The Commissioner’s comments are of course particularly timely as the Justice Select Committee is on the cusp of publishing its first report on the post-legislative scrutiny (publication is due on 26 July 2012 and will no doubt be commented on in detail by Panopticon). It will be very interesting to see what line the Committee takes on this now extremely politicised issue.

Anya Proops