With a variety of local and regional elections coming up in May, and the EU referendum in June, purdah and the sensitivity of the pre-election period is at the forefront of many people’s minds. So how does this work with the handling of FoI requests by public authorities and national Commissioners? The issue hit the headlines in Scotland over the last week, with much debate concerning the position taken by the Scottish Information Commissioner (SIC) as to the determination of FoI decisions in the pre-election period.
The position adopted by the SIC, as reported in The Scotsman and Herald as that of a policy, initially to apply the purdah principle, with the SIC’s office reported as having taken the position that she had “decided not to issue any decisions which might put forward a critical view of the Ministers” prior to elections. After clarification was sought, the SIC further explained the policy on the basis of impartiality: “the Commissioner must be seen to be impartial … to avoid any suggestions of bias”.
So how do these different principles relate to each other, and should other public authorities and national Commissioners follow the SIC’s approach? There may be some doubts. Parliament provided no exemption for politically embarrassing information. The statutory time-limits do not seek to implement any sort of purdah principle. A policy along the lines adopted by the SIC runs the risk of falling foul of the rule of improper purpose in Padfield v Minister [1968] AC 997, 1030, 1032-33 and M v Scottish Ministers [2012] UKSC 58, paras 42-47.
As to the SIC’s two justifications of the policy, again there are doubts. Seeking to apply purdah or any similar concept to FoI is problematic. Purdah applies to executive branches of government, of which the FoI Commissioners are not part. The alternative justification of “impartiality” is also difficult. It may be thought that the safest route to impartiality lies in deciding each FoI application without drawing any distinction based on the arm of government or public authority to which the information relates.
The issue has generated vigorous debate in Scotland. It is yet to be seen whether any such or similar approach would be adopted South of the border.
Jonathan Auburn
ja@11kbw.com