It has been an admirable trend of Tribunals in FOIA cases over the last few years that they have been increasingly sceptical of assertions on the part of public authorities that disclosure will provide chilling effects on their activities. An inevitable pattern forms of an insistence that the sky will fall in if information is released, information is released (or leaked), and the sky appears not to fall in. Government grinds on. But Judge Jacobs has provided a little more comfort for such arguments in DWP v Information Commissioner, Slater & Collins  UKUT 535 (AAC). The case related to various risk register documents related to Universal Credit.
Before the FTT (see here) the DWP’s evidence was criticised for failing to provide any concrete evidence of ways in which this chilling effect had manifested itself across Government and noted that a different, but related, document had been leaked and had not appeared to have any chilling effect. Judge Jacobs was not impressed by this. He condemned the reasoning as sufficiently irrational to amount to an error of law because it had required evidence of something which would be very unlikely to be able to be evidenced (i.e. there wouldn’t be a paper trail of civil servants being circumspect) and because it compared the disputed information with a document it hadn’t seen (the leaked document). That error was sufficiently important to impugn the judgment as a whole, even though it was just one paragraph in a lengthy decision.
One can see the point about drawing conclusions from a document the Tribunal had not actually seen, but the other aspect of the criticism is more problematic. There might be expected to be some evidence of a chilling effect, if only by a comparison of the way in which civil servants worked before and after relevant events. Civil servants have duties to advise frankly which Tribunals have been rightly slow to conclude they would avoid complying with. The Justice Select Committee has previously found little evidence of such a chilling effect across Government (see the summary here). It is particularly difficult to see how the approach is especially consistent with that of Charles J in Department of Health v Information Commissioner & Lewis  UKUT 159 (AAC), in which a Departmental tendency to indulge in a Mandy Rice-Davies approach was noted, along with a cautionary requirement for specific evidence of harm (see my commentary here). In short, the approach of Judge Jacobs is a little too close for comfort to allowing bare assertions of a nebulous chilling effect provided by a professional civil service. One must recognise the difficulties of proving a counter-factual, but whether Slater or Lewis more accurately casts the balance is a matter for some debate.
Judge Jacobs also noted that evidence will need to consider what officials ought to do as an aspect of the Tribunal’s predictive duties in relation to the actual effect of disclosure. More unusually, he also indicated a willingness (obiter) to open up the question of the trouble that can be caused by the media taking a selective approach to what it publishes and putting its own spin on that material as a relevant aspect. The ICO has long taken a clear line – applied in numerous cases by the FTT – that subsequent use and possible misrepresentation is, essentially, tough. Public authorities have to take it on the chin as part of the wider debate and can publish it with explanatory material which mitigates the risk of decontextualizing. Given the ability of people to take pretty much any sentence out of context, this would appear to be a very anti-disclosure line of reasoning of very broad scope and it will be interesting to see if it is returned to in future cases in which it matters more directly.
In the meantime, Judge Jacobs appears to have adopted the words of House Stark on the chilling effect: “Winter is Coming”.
Julian Milford appeared for the DWP and Robin Hopkins for the ICO.