It is now two-and-a-half years since the Freedom of Information Act 2000 (FOIA) came fully into force, and it is now very much in the media spotlight. Should a breakdown of MPs’ travel expenses be accessible to the general public? To what extent should the formulation of government policy take place in a ‘safe space’ free from public scrutiny? Should the BBC be required to disclose an internal report examining whether it was biased in its reporting of the Israeli-Palestinian conflict? All of these issues have been considered recently by the Information Commissioner and by the Information Tribunal (which hears appeals from the Commissioner’s decisions). They have also been the subject of wider debate among politicians and in the media. They raise an issue that lies at the very heart of FOIA: at what point does a requirement for openness and transparency by public authorities begin to threaten the effective operation of those same authorities?
In three recent appeals under FOIA, the Information Tribunal has considered applications for disclosure of information relating to the formulation of government policy. In each case evidence was advanced by a number of very senior government officials and civil servants as to the dangers inherent in any such disclosure. See Department for School, Children and Families (DfES) v Information Commissioner (concerning information about high-level policy discussions of education funding); DWP v Information Commissioner (concerning an internal assessment undertaken by the Department for Work and Pensions in relation to the introduction of identity [ID] cards); and Office of Government Commerce (OGC) v Information Commission (concerning gateway reviews of the ID card scheme). Although in each case the information was potentially exempt from disclosure under FOIA, the relevant exemptions were qualified not absolute. What this means is that the tribunal had to consider, in the circumstances of each case, whether the public interest in upholding any exemption outweighed the public interest in disclosure.
