George Osborne, Nigel Lawson and FOIA – political vs official information

January 20th, 2014 by Robin Hopkins

Government ministers wear two hats (apart from Vince Cable – he seems to like hats, and probably has quite a few). They are public officials, but they are also party politicians. Both of those activities are likely to generate recorded information. FOIA extends to the official information, but not the party political. This is well established in principle, but not straightforward to apply, since the two categories will often overlap. It is also surprisingly untested before Tribunals. Michael Gove was due to test the principle in a 2012 appeal, but that was withdrawn.

The issue has now been considered by the Tribunal in Brendan Montague v IC and HM Treasury (EA/2013/0074): 029 070114 Final Decision EA-2013-0074. The information in dispute was a record of a telephone conversation which took place on a Sunday morning in September 2011 between the Chancellor of the Exchequer, George Osborne, and one of his predecessors, Lord Lawson.

The ICO’s position (and that of HMT) was that some of that information was predominantly party political in nature and was thus not held by HM Treasury for FOIA purposes. The remainder was exempt under section 35(1)(a), i.e. insofar as official business was being discussed, it related to the formulation or development of government policy, and the public interest favoured maintaining the exemption.

The Tribunal disagreed on the first point: while it accepted the principle, it had “no hesitation” in concluding that all of the disputed information in this case was held by HMT for official purposes rather than Mr Osborne’s party-political ones. It was not attracted by dissecting and partitioning the record between the party-political and the official in this instance, and it favoured a restrictive approach to a principle by which information could be taken outside of FOIA’s reach.

On the section 35(1)(a) point, the Tribunal agreed that there was a need for a safe space, given the high-level economic policy issues – including concerning the banking sector – which were being discussed. It was satisfied that the disputed information did not indicate that any impropriety or lobbying was at play.

I appeared for the ICO; my colleague Julian Milford appeared for HMT. No further analysis from me, given my involvement in the case, but I post it here because of the relative novelty of the political/official information point which, one suspects, will rear its head in other cases in future.

Robin Hopkins @hopkinsrobin



February 13th, 2012 by Robin Hopkins

I blogged before Christmas about the ICO’s guidance on the circumstances in which emails sent from private accounts could come within the scope of FOIA. That guidance was prompted by a complaint to the ICO alleging that the Secretary of State for Education had used a private email account to communicate about departmental business. The complainant was the Financial Times‘ Chris Cook. A few hours ago, he published one of the emails about which he complained:

The ‘Goudie’ referred to in the email is 11KBW and Panopticon’s own James Goudie QC; the litigation prompting Mr Gove’s ‘aaargh!’ is the Building Schools for the Future judicial review, heard in January 2011, whose large cast of counsel included a smattering of Panopticonners (James Goudie, Rachel Kamm and me).

I also discussed the ICO’s guidance in an editorial comment piece, written at the end of 2011 and appearing in the latest issue of the Freedom of Information Journal: FOI Journal Vol 8 issue 3.

Robin Hopkins