Case Summary and Outcome

The U.K. Information Tribunal held that information communicated between governmental officials and lobbyists is subject to disclosure under the Freedom of Information Act of 2000 (FOIA), as there exists a strong public interest in ensuring that bribery or corruption does not take place in such interactions and that individuals have an opportunity to put forward alternative positions to those being advanced by lobbyists. The Tribunal recognized that its decision might produce a “chilling effect” by discouraging “frankness and candor” in interactions between government officials and third parties but reasoned that “less weight” ought to be placed on such drawbacks in light of the considerable benefits of disclosure.

This case analysis was contributed by Right2Info.org.

Facts

In 2005, Friends of the Earth (FOE) requested under the FOIA from the predecessor to the Department of Business, Enterprise and Regulatory Reform (DBERR) information regarding meetings and correspondence between senior government officials in DBERR and employees of the business lobbyist organization, the Confederation for British Industry (CBI). In particular, it requested 1) dates of the meetings, 2) names and/or positions of participants, 3) minutes and 4) correspondence between parties. DBERR refused to disclose certain requested items of information, including names of non-DBERR staff, some minutes and e-mails. Upon FOE’s complaint, the Information Commissioner issued a Decision Notice ordering disclosure of certain withheld documents (para. 40). DBERR appealed the Decision Notice on the grounds that three exemptions under the Act applied: (1) formulation of government policy under Section 35, later substituted by inhibition of free and frank discussion under Section 36(2); (2) confidential information under Section 41; and (3) personal information under Section 40.

Decision Overview

Firstly, the Tribunal concluded that “the reasonable opinion was that disclosure of the information ‘would’ inhibit free and frank provision of advice or exchange of views” under Section 36(2) of the Act. However, the Tribunal noted the qualified exemption to Section 36 and said that any such inhibition ought to be “taken . . . into account in applying the appropriate weight to be given to the public interest in maintaining this exemption, when applying the public interest test” under Section 2(2) of the Act.

Secondly, the Tribunal concluded that certain meeting records between the DBERR and third parties fell under the absolute exemption for confidential information in Section 41 of the Act. Even though the meeting records were recorded by the DBERR and technically not obtained by the third parties, the Tribunal reasoned that precluding the meeting records from the exemption would wrongly “privilege the accident of form (or record) over content” (para. 78).

Lastly, with respect to the absolute exemption for personal data under Section 40(2), the Tribunal concluded that senior officials, as “spokespersons” of an organization, could have “no expectation of privacy” and therefore could have their names disclosed (para. 101). On the other hand, junior officials “who are not spokespersons for their organizations or merely attend meetings as observers or stand-ins for more senior officials, should have an expectation of privacy”.

The public interest test, to be applied in the case of the disputed information falling under the qualified exemption of Section 36(2), weighed largely in favour of disclosure. Although the Tribunal recognized that “the government needs . . . [a] private space for ministers and civil servants deliberations as it formulates and develops policy,” the Tribunal declined to “extend this private space to deliberations with third parties outside government” when those third parties were not “genuine advisors to government” but rather lobbyist organizations. Rather, the Tribunal declared there to be a “strong public interest in understanding how lobbyists, particularly those given privileged access, are attempting to influence government so that other supporting or counterbalancing views” can be brought to the fore and transparency in all deliberations is ensured. Disclosure would also promote “accountability, public debate, better public understanding of public authorities’ decision and informed and meaningful participation by the public in the democratic process”. However, the Tribunal allowed that an exception might arise in situations where the government is looking to “test ideas with informed third parties out of the public eye”.

The Tribunal recognized that its decision might produce a “chilling effect” by discouraging “frankness and candor” in interactions between government officials and third parties. However, the Tribunal reasoned that “less weight” ought to be placed on such drawbacks in light of the considerable benefits of disclosure.