Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
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The England and Wales High Court ruled that a government agency must disclose reviews examining the viability of certain programs or projects relating to a controversial identity card program. The Court reasoned that there was a general presumption that “in the absence of a public interest in preserving confidentiality, there is a public interest in the disclosure of information held by public authorities” [para. 69]. The Court further reasoned that the ID card scheme was a matter of great national importance and debate and, as such, a matter of public interest that outweighed the public interest in maintaining confidentiality over the government’s policy formation.
This case analysis was contributed by Right2Info.org.
In 2005, Mark Dziecielewski made a request under the Freedom of Information Act of 2000 (FOIA) for access to gateway reviews. These comprised independent peer reviews supervised by the Office of Government Commerce (OGC) and examining the viability of certain programs or projects pertaining to a controversial identity card program. The OGC denied his request on two grounds: 1) the information was exempt under Article 33 of the FOIA because disclosure would prejudice the exercise of the OGC’s functions; and 2) the information was exempt under Article 35 of the FOIA because the balance of the public interest weighed against disclosure. Dziecielewski then applied for disclosure to the Information Commissioner, who found that neither exemption applied to the gateway reviews and compelled the OGC to disclose the information. Around the same time, Member of Parliament Mark Oaten issued a parliamentary question asking about the status of the identity card program, which was dismissed by the relevant minister. Oaten’s complaint was then denied by the OGC on the same two grounds as set out above. Oaten’s appeal to the Information Commissioner likewise obtained the same outcome, compelling OGC to disclose. The OGC appealed both decisions by the Information Commissioner to the Information Tribunal, which consolidated the two appeals and ordered disclosure of certain parts of the requested information.
The High Court opined on three important issues. First, the Court concluded that the doctrines of parliamentary privilege and separation of powers barred the Court from reviewing the adequacy of the ministerial response to MP Oaten’s parliamentary question. However, the Court conceded that MPs are certainly welcome to make requests for disclosure under the FOIA “outside the framework of a parliamentary question”. It is only when requests are made in the form of a parliamentary question, and the ministerial response provides an interpretation as to the applicability of the FOIA, that a conflict between the legislative and judicial bodies arises.
Second, the Court addressed the Section 33 claim of prejudice. The Court argued that there is a general presumption that “in the absence of a public interest in preserving confidentiality, there is a public interest in the disclosure of information held by public authorities”. Indeed, since parliament in some situations denies there is a public interest weighing against non-disclosure, the Court claimed it would be “unreasonable to attribute to parliament an intention to create a presumption of a public interest against disclosure” (emphasis added).
Third, the Court found that the Section 35 exemption was clearly engaged in respect of the claim of policy formulation. However, since the Section provided for a qualified exemption, as opposed to absolute, the Court performed a Section 2(2) public interest test to determine whether public interests in favor of disclosure outweighed the public interests in favor of exemption. On the one hand, the OGC argued that “the success of [gateway reviews would] be fundamentally undermined” by disclosure; on the other hand, the ID card scheme was a matter of great national importance and debate. Ultimately, the Court agreed with the Information Commissioner’s “find[ing] that the public interest in maintaining the exemption does not outweigh the public interest in disclosure”, as “there has always been a possibility that [gateway reviews] would be [subject to] disclosure under FOIA” and the present gateway review generated particularly compelling national interest.
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