The Tribunal’s recent decision in Makin v IC (EA/2010/0080 & 81) looks at the application of s. 35 FOIA, the qualified exemption for the formulation and development of government policy, in circumstances where the policy in question was effected through parliamentary legislation.  In particular, the requested information concerned the proposal in what was then the Legal Services Bill to continue the exemption of government lawyers from professional regulation, including the requirement to pay for a practising certificate.

The Tribunal considered the application of subsections 1(a), (2) and (4) of s. 35.

It had no hesitation in confirming that s. 35(1)(a) was engaged, relying on the well-established breadth of terms such as “relates to”. For the purposes of s. 35(2), the Tribunal found that no “statistical information” (a working definition of which was taken from the Ministry of Justice guidance of May 2008) was involved.

As regards s. 35(4) – the subsection concerning factual information used to inform decision-making – the Tribunal found that this subsection “should apply where it was relatively obvious that what was being provided was factual information for the purpose of informing the decision–taker on the background”. In adopting this approach, it applied the guidance from the leading case of DWP v Information Commission (EA/2006/0040), where the Tribunal held that, on the spectrum between pure advice and pure fact, “where the information is firstly, so inextricably connected to the deliberative material that it is difficult to distinguish and secondly, where the vast weight of material is non-factual information, we consider Parliament did not intend the sub-section to apply”.

An important point from this case is the Tribunal’s finding that whenever s. 35 is under consideration, public authorities and the IC must consider whether s. 35(4) applies and if so what affect it has on the public interest balancing test. This had not been done in this case.

As to the public interest, a crucial issue was (as is usual with s. 35 cases), when the policy formulation had come to an end. Answer in this case: the date of Royal Assent given to the bill embodying the policy, namely 30 March 2007. In this case, one of the internal reviews was only completed well after this date – but the Tribunal held that the latest relevant date for assessing the public interest was the date when the review ought to have been completed, in accordance with the Code of Practice. This was well before Royal Assent, meaning that the public interest factors applied as if the policy were still in the process of formulation.

In the event, apart from two pieces of information, the Tribunal found that the public interest favoured the maintenance of the exemption. In so doing, it “took the view that the efficacy of the Parliamentary legislative process took precedence in this context… Whilst s. 35 was not aimed directly at protecting the role of Parliament, insofar as Government policy in relation to legislation underpins this particular role of Parliament, they were intertwined”.

A final interesting point is that the Tribunal firmly endorsed the IC’s flexibility to decide that, although information should have been disclosed at the time, it nevertheless ought not to be disclosed due to fresh circumstances that have arisen since the decision of the public authority. In so doing, the Tribunal relied on obiter dicta from the High Court’s decision in Office of Government Commerce v Information Commissioner [2009] 3 W.L.R. 67 (at paragraph 98).


A number of Tribunal decisions have dealt with requests for minutes of cabinet meetings. Section 35 is inevitably relied upon, and arguments about both collective responsibility and confidentiality ensue.


The most famous concerned the decision to go to war in Iraq, which case saw disclosure being ordered by the Tribunal, but vetoed by Jack Straw.


More recently (Cabinet Office v ICO (EA/2010/ 0031)), the Tribunal has ordered disclosure of the cabinet’s meeting on 9th January 1986, in which Michael Heseltine resigned over the Westland Helicopter decision.


The Tribunal agreed that cabinet minutes are of the highest sensitivity, and should only be disclosed in rare cases “where it involves no apparent threat to the cohesive working of Cabinet government, whether now or in the future”. Relevant factors include: the passage of time, the departure of the relevant ministers from active politics, publication of memoirs and ministerial statements describing the meeting, the issue lacking ongoing significance, the ‘objectivity value’ where publicised accounts conflict, and whether the issue is of “particular political or historical significance”.


The last-mentioned factor was one Jack Straw expressly disagreed with when issuing the certificate of veto mentioned above: in other words, his position was that the more momentous a decision, the greater the need for confidentiality.


Many of these factors were, however, at work in the present case: for example, Margaret Thatcher and Michael Heseltine both made (acrimonious) public statements about the meeting at the time, and the meeting has since surfaced in plenty of memoirs. The outcome was that, whilst section 35 was engaged, the public interest favoured disclosure.


No sign of the incumbent Lord Chancellor, Ken Clarke – who, incidentally, was in the cabinet and present for the 1986 Westland Helicopter meeting – reaching for the veto just yet.


The Tribunal concluded its judgment with stringent criticism of the Cabinet Office’s delay in dealing with this request. The Cabinet Office is one of the 33 authorities on the ICO’s first monitoring list – on which, see my post below.


Tony Blair has given an interview in today’s Guardian in which he robustly defends (almost) all of his actions as Prime Minister. Notable exceptions include the ban on fox-hunting and, somewhat surprisingly, the Freedom of Information Act. Thus, Martin Kettle of the Guardian reports: Some things about his record in office he does not defend. One is the Freedom of Information Act. “It’s not practical for government,” he says. “If you are trying to take a difficult decision and you’re weighing up the pros and cons, you have frank conversations. Everybody knows this in their walk of life. Whether you are in business – or running a newspaper – there are conversations you want to have preliminary to taking a decision that are frank. And if those conversations then are put out in a published form that afterwards are liable to be highlighted in particular ways, you are going to be very cautious. That’s why it’s not a sensible thing.”’ Query whether the current PM would be prepared to make a similar declaration. You can find the article here.


In February of this year, Justice Secretary Jack Straw issued the first ministerial veto under s. 53 FOIA. The veto, which met with considerable public controversy at the time, was issued in response to an Information Tribunal decision which required disclosure of minutes of a Cabinet meeting at which the government decided to go to war in Iraq (see further my paper on this issue). Yesterday, Mr Straw announced that he was exercising his powers of veto for a second time. The new veto has been issued in respect of a decision of the Commissioner requiring disclosure of minutes of the Cabinet Ministerial Committee on devolution to Scotland and Wales and the English Regions 1997. In the public announcement of the veto, Mr Straw stated that disclosure of the information in issue would have put the convention of collective cabinet responsibility at ‘serious risk of harm’. He also stated that he considered the circumstances of the case to be exceptional. Notably, similar points had been used to justify the veto in respect of the Iraq minutes. See further the certificate and Mr Straw’s Statement of Reasons and Veto. The effect of the veto is that the appeal against the Commissioner’s decision, which was due to be heard by the Information Tribunal at the end of January 2010, will now be aborted as the effect of the veto is that the decision notice ceases to have effect. The Commissioner has today issued a statement in response to the veto. The statement expresses regret and concern that the veto was issued in circumstances where the Tribunal had yet to adjudicate on the Cabinet Office’s appeal (cf. the Iraq minutes case where the veto was issued subsequent to the tribunal’s decision). The Commissioner will in due course issue a report to Parliament on the matter.

The Law Officers’ Convention and the Ministerial Code – High Court Judgment

The recent judgment in HM Treasury v Information Commissioner and Evan Owen [2009] EWHC 1811 (Admin) saw the High Court quash a decision by the Information Tribunal requiring HM Treasury to disclose whether or not it held advice from the Law Officers on the compatibility of the Financial Services and Markets Bill with the Human Rights Act.

By a long-standing constitutional Convention – recognised in the Ministerial Code – the fact that the Law Officers have been consulted is not disclosed outside government without the consent of the Attorney General. This is specifically accommodated in the qualified exemption under section 35(1)(c) FOIA. The Tribunal, however, had upheld the Commissioner’s decision that the public interest favoured disclosure in this case.

Blake J held that, in so doing, the Tribunal failed to afford due weight to three factors. First, the fact that section 35(1)(c) aimed not to supplant the Convention, but to preserve it subject to a public interest test. Secondly, the views of experienced civil servants on the consequences of departing from the Convention. Thirdly, those factors counting against disclosure that were based on generalised rather than specific harm. The Tribunal had also failed to evaluate for itself the strength of the public interest in disclosure in light of the extensive legal advice that had already been publicised on this issue.

Given that similar factors have been discussed in a number of other High Court judgments referred to by Blake J, this judgment makes a notable contribution to the jurisprudence on the public interest balancing test.

Recent ICO decisions on Freedom of Information

In Decision Notice FS50139215, issued this week, the Commissioner has ordered the Met Police to disclose particular CCTV footage showing the movements of the perpetrators of the terrorist attacks on London on 7 July 2005.

The Met had argued that the footage was exempt from disclosure under sections 30(1)(a) (information held for the purposes of an investigation) and 38(1)(a) (health and safety) of FOIA.

The Commissioner accepted that the exemption in section 30(1)(a)(i) and (ii) of FOIA was engaged. However, he rejected arguments that such disclosure would render meaningful police investigation impossible and that, pending any trial, the CCTV footage should only be disclosed to the CPS, the Courts or other bodies involved in the investigative process.

The Commissioner’s comments on the public interest in full disclosure of any material relating to the 7/7 bombings are of particular interest. He noted, for example, that whilst there had already been widespread media coverage in relation to the bombings, “full disclosure in order to avoid any suspicion of ‘spin’ or ‘cover up’ will continue to be in the public interest regardless of the volume of related information that has previously been disclosed”. On similar lines, he observed that in circumstances in which the 7/7 attacks had been the subject of conspiracy theories, the fact that “disclosure would presumably support the official account of the time line and basic facts of the attacks and reduce any perceived lack of transparency about how this account was formed, along with removing any suspicion of ‘spin’ or ‘cover up’” was a valid public interest factor in favour of disclosure.

The Commissioner rejected the Met’s claim that the exemption under section 38(1)(a) of FOIA (health and safety) was engaged at all, emphasising that the arguments advanced by the Met on this point had lacked detail in relation to the specific CCTV footage in question. He also concluded that, whilst not cited by the Met, the personal data exemption in section 40(2) of FOIA was engaged in respect of footage from which individuals other than the perpetrators of the attacks could be identified. The Met must redact this information, such as by pixellation, before the footage is disclosed.

In other Decision Notices issued this week, the Commissioner has held that:

  • Oxford, Cambridge and Manchester Universities and Kings College and University College, London must disclose information relating to primate research. A complainant had sought such information from a number of universities, including information as to the numbers and species of primates referred to in returns to the Home Office, and as to current research. The Commissioner held that the exemptions relied upon by the universities were not engaged (variously, sections 38 (health and safety), 40 (personal data) and 43 (commercial interests) of FOIA).


  • The Department of Health must disclose civil servants’ submissions to Ministers in relation to proposed variations to consultants’ contracts as part of its ‘modernising medical careers’ initiative. Whilst the exemption in section 35(1)(a) (policy) of FOIA was engaged, the public interest in maintaining the exemption did not outweigh that in disclosure (FS50151464).


  • In contrast, the FCO was entitled to refuse to confirm or deny whether it held particular information as to identification of a voice heard in the video showing the beheading of Ken Bigley in Iraq in 2004. The FCO successfully relied upon sections 23(5) (information supplied by or relating to the security services) and 24(2) (national security) of FOIA (FS50188323).