FOIA remains a potent tool for enhancing transparency on issues of great public importance. Two recent decisions – concerning the Chilcot Inquiry and the post-prime ministerial activities of Tony Blair – are good current illustrations.
Chilcot: no special treatment for important government issues
Cabinet Office v IC and Lamb  UKUT 0476 (AAC) concerned a request by Dr Lamb in 2014 for information about the criteria used to decide the form and membership of the Chilcot Inquiry. The Inquiry had been set up in 2009 and was still running at the time of the request. (As an aside, Dr Lamb has used FOIA assiduously and effectively on Iraq War-related matters in the past; his requests for the relevant Cabinet minutes gave rise to two ministerial vetoes).
The request was refused under section 35(1)(a) FOIA, with the Cabinet Office advancing both ‘safe space’ and ‘chilling effect’ arguments. The IC disagreed with the former but upheld the refusal on the latter ground. Dr Lamb succeeded before the First-Tier Tribunal following a determination on the papers.
The Cabinet Office sought permission to appeal to the Upper Tribunal, but Judge Wikeley has refused permission: the Cabinet Office’s case is deemed unarguable. Notably, he rejected arguments that he characterised as ‘perilously close to a submission that the FTT should defer to the views of the public authority and the Commissioner where the latter coincide’; that a FTT conclusion about when the relevant government policy (about the Inquiry’s make-up) crystallised was assailable as an error of law (it was really a question of fact); that the chilling effect should be given greater weight on serious issues e.g. where the Prime Minister has been involved, or that information on such important issues was somehow in a special class.
On this last point, Judge Wikeley commented that while the issue may be one of great importance to the Cabinet Office “that does not mean Government departments are entitled to a free pass to the next level of the appellate hierarchy” (paragraph 36).
Blair: unreasonable section 36 opinion
Lamb saw the UT uphold the decision of a FTT panel chaired by Chamber President Peter Lane. Judge Lane presided over the FTT in the recent decision in Malnick v IC (EA/2016/0055). Mr Malnick, the Deputy Investigations Editor of The Daily Telegraph, asked the Advisory Committee on Business Appointments (ACOBA) for information on its correspondence with Tony Blair over the period 2005-09 concerning private sector roles which Mr Blair proposed to take up after stepping down as Prime Minister.
The request was refused under sections 36(2) FOIA (prejudice to free and frank provision of advice/exchange of views between public officials like Mr Blair and ACOBA) and 40(2) personal data.
The IC agreed, but Mr Malnick’s appeal to the FTT succeeded. Notably, the FTT agreed that the opinion of the qualified person – Baroness Browning – was unreasonable. She had failed to have regard to relevant considerations. She had also publicly explained to a Parliamentary Committee that outgoing public officials were incentivised by the court of public opinion from engaging with ACOBA before taking up private sector appointments. She explained publicly that investigative journalism was crucial to uncovering such matters. Her subsequent failure to have regard to her own public stance meant her section 36 opinion was unreasonable.
The FTT’s analysis is striking. Those who rely on section 36 opinions should pay careful attention.
The FTT added that even if section 36(2) had been engaged, the public interest would have favoured disclosure: “Mr Blair’s business and commercial interests have spawned a wider, important debate about the interface between political life and the world of business and commerce” (paragraph 49).
Interestingly – and perhaps frustratingly – the FTT remitted the matter to the IC to make a fresh decision on section 40 (personal data). The Upper Tribunal has previously given guidance about the limited circumstances in which the FTT can remit to the FTT…
Leaving aside that last point, these two recent cases are excellent illustrations of the public value and effective use of FOIA. There are proposals afoot to make appeals against IC decisions much harder.
If the system does came to be changed in a way that shuts out the likes of Dr Lamb and Mr Malnick, the public would be much the worse off.
Robin Hopkins @hopkinsrobin