Case Summary and Outcome

The U.K. Information Tribunal held that section 35 of the Freedom of Information Act of 2000 confers a qualified, not absolute, government policy formulation exemption. Such information is public if there is an overriding public interest in favour of disclosure.

This analysis was contributed by Right2Info.org

Facts

In 2005, Dominic Hayes, education correspondent for the Evening Standard (ES), submitted a request under the Freedom of Information Act of 2000 (FOI Act) for “all minutes of senior management meetings at the Department for Education and Skills (DFES) from June 2002 and June 2003 regarding the setting of school budgets in England”. The DFES disclosed some pieces of information but cited that the remainder of the information was exempt under Section 35(1)(a) of the FOI Act, which limits disclosure of information that “relates to the formulation or development of government policy”. DFES justified the exemption  on the basis that the requested information concerned discussions among the most senior officials in DFES.

Hayes filed a complaint to the Information Commissioner, who held that the requested information did fall under Section 35(1)(a) but that the public interest test applied, and the public interest in disclosure outweighed the public interest in maintaining the exemption. While the Commissioner recognized the public interest in “ensuring frank honest debate and advice in the interests of robust and well-considered policy-making” justifying non-disclosure, he did not believe such concerns applied to the requested information. Nor did the Commissioner accept the DFES’ argument that allowing disclosure would produce a “chilling effect” across the whole civil service. The DFES appealed the Commissioner’s decision to the Information Tribunal.

Decision Overview

This decision was the first time the Tribunal interpreted the application of the policy formulation exemption under Section 35(1)(a) of the FOI Act, as well as the public interest test in relation to that exemption.

First, the Tribunal agreed with the DFES that the language “relates to” policy formulation in Section 35(1)(a) may “safely be given a reasonably broad interpretation” (para. 53). Thus, the DFES “correctly asserted that Section 35(1)(a) applied to all the outstanding material”. However, the Tribunal did not consider that Section 35(1)(a) rendered the requested information exempt, on the basis that disclosure would not have caused much, if any, damage to DFES’ policy formulation. More importantly, the Tribunal pointed out that the exemption was qualified, as opposed to absolute, and that there was a balancing exercise to be carried out between the respective public interests.

The Tribunal began by emphasizing that the party invoking the exception has the burden of proof of showing that the exception applies (para. 61). The Tribunal interpreted the public interest test of Section 2(2)(b) to mean that “the authority must disclose unless the public interest in withholding the information outweighs [or is equal to] the public interest in disclosure” (para. 64). In this case, the Tribunal did not think that the fact that the requested information related to meetings with high-level officials automatically rendered the information exempt under the policy formulation exemption, since such an automatic conferral of exemption would be “tantamount to inventing within section 35(1) a class of absolutely exempt information”. Moreover, while the Tribunal agreed that “frank debate, fearless advice, impartial officials, full record-keeping and ministerial accountability” were undisputedly values “worth preserving,” the Tribunal did not believe that disclosure in the present instance would considerably imperil any of those values. The Tribunal considered it particularly important that the request for information came well after the policy had been implemented. Although the policy formulation concern doesn’t always cease to exist once the policy is implemented, policy considerations also do not continue indefinitely past the point of implementation as part of a “seamless web” of policy development.