Case Summary and Outcome

The U.K. First-Tier Tribunal of the General Regulatory Chamber for Information Rights held that a Transitional Risk Register (“TRR”), relating to sweeping changes to the country’s National Health System (“NHS”), should be disclosed under the Freedom of Information Act (“FOIA”) but that a Strategic Risk Register, relating to the changes, was exempt from disclosure.

The Court said that the non-disclosure of information relating to the formulation or development of government policy can be outweighed by a public interest to disclose. A public authority must release risk registers evaluating health policy if the request is made when policy consultation and formulation has been largely completed, but not during a period of consultation and when the register includes more sensitive policy information.

It reasoned that the public interest in transparency outweighed the public interest in the Government having safe space to formulate and develop its policy on NHS reforms at the time of the TRR request because the Report largely covered operational and implementation risks being faced by the Department of Health (“DOH”)  to deal with the introduction of new policies but not direct policy considerations. On the other hand the Court found that the public interest in the Government having safe space to formulate and develop its policy on NHS reforms at the time of the SRR request outweighed the public interest in transparency and disclosure because the request was made at a time when the government was engaged in ongoing policy deliberations.

This case analysis was contributed by Right2Info.org.

Facts

Two individuals sought information from the DOH in connection with NHS reforms outlined by the government in a July 2010 White Paper. In November 2010, John Healey, Shadow Secretary of State for Health, requested a copy of the DOH’s TRR and subsequently, in February 2011, Nicholas Cecil, a journalist, sought information on the SRR.

The DOH refused the requests relying on Section 35(1)(a) of FOIA, which, in conjunction with Section 2(2), allows for information relating to “the formulation or development of government policy” to be withheld, to the extent that the “public interest in maintaining the exemption outweighs the public interest in disclosing the information”. DOH also redacted the names of four civil servants, relying on FOIA Section 40(2), which exempts certain personal data from disclosure.

Healey and Cecil complained to the Information Commissioner (“IC”) who accepted that s.35(1)(a) FOIA was engaged in relation to the TRR and SRR but that the public interest balance favoured disclosing the registers.

The DOH appealed.

Decision Overview

The Tribunal balanced the need to create a ‘safe space’ for policy formation during the policy-making process against the public interest in disclosure at the time of the request. While the Tribunal acknowledged that sometimes information must be withheld to prevent a chilling effect on policy deliberation, it found that this effect is not always present and can be outweighed by a public interest to disclose.

In the case at hand, the Tribunal understood there was a strong public interest in ensuring transparency, given the controversial nature of the health reforms and their effect on millions of Britons. It ordered the release of the TRR, since by the time Healey put forward his request (November 2010) a policy decision had already been reached, thus reducing the need for a safe deliberation space. In contrast, the Tribunal denied Cecil’s request for the SRR on the grounds that it constituted information more strongly related to ongoing policy efforts and that, at the time of the request (February 2011), the government was in the process of reevaluating its positions and renewing a consultation phase.

In considering the disclosure of individuals’ names in the TRR, the Tribunal rejected a blanket distinction between junior and senior civil service officials, finding that each individual’s expectation of privacy should be evaluated separately, independently of their title and seniority. It required that the names of three individuals, whose role was similar to those whose disclosure was not objected to, be released. In addition, it ordered the redaction of data pertaining to an individual with only a minor administrative role.