First Tribunal decision on policy formulation published

The Information Tribunal's decision on the Evening Standard's request for the minutes of senior management meetings at the DfES regarding the setting of school budgets in England, has been published. The Tribunal rejected the DfES's appeal and upheld the Information Commissioner's decision. The decision is significant as it's the first time the Tribunal has considered the s.35(1)(a) exemption for information relating to the formulation or development of government policy.

Appeal Number: EA/2006/0006
Decision Promulgated: 19th February 2007
Between: The Department for Education and Skills (Appellant) and Information Commissioner (Respondent) and Evening Standard (Additional Party)

The Tribunal said the following principles should guide decisions as to disclosure in cases such as this:

"(i) The central question in every case is the content of the particular information in question. Every decision is specific to the particular facts and circumstances under consideration. Whether there may be significant indirect and wider consequences from the particular disclosure must be considered case by case.

(ii) No information within s.35(1) is exempt from the duty of disclosure simply on account of its status, of its classification as minutes or advice to a minister nor of the seniority of those whose actions are recorded.

(iii) Subject to principle (iv), which we regard as fundamental, the purpose of confidentiality, where the exemption is to be maintained, is the protection from compromise or unjust public opprobrium of civil servants, not ministers. Despite impressive evidence against this view, we were unable to discern the unfairness in exposing an elected politician, after the event, to challenge for having rejected a possible policy option in favour of a policy which is alleged to have failed.

(iv) The timing of a request is of paramount importance to the decision. We fully accept the DFES argument, supported by a wealth of evidence, that disclosure of discussions of policy options, whilst policy is in the process of formulation, is highly unlikely to be in the public interest, unless, for example, it would expose wrongdoing within government. Ministers and officials are entitled to time and space, in some instances to considerable time and space, to hammer out policy by exploring safe and radical options alike, without the threat of lurid headlines depicting that which has been merely broached as agreed policy. We note that many of the most emphatic pronouncements on the need for confidentiality to which we were referred, are predicated on the risk of premature publicity. In this case it was a highly relevant factor in June 2003 but of little, if any, weight in January 2005.

(v) When the formulation or development of a particular policy is complete for the purposes of (iv) is a question of fact. However, s. 35(2) and to a lesser extent 35(4), clearly assume that a policy is formulated, announced and, in many cases, superseded in due course. We think that a parliamentary statement announcing the policy, of which there are examples in this case, will normally mark the end of the process of formulation. There may be some interval before development.. We do not imply by that that any public interest in maintaining the exemption disappears the moment that a minister rises to his or her feet in the House. We repeat – each case must be decided in the light of all the circumstances. As is plain however, we do not regard a “seamless web” approach to policy as a helpful guide to the question whether discussions on formulation are over.

(vi) If the information requested is not in the public domain, we do not regard publication of other information relating to the same topic for consultation, information or other purposes as a significant factor in a decision as to disclosure.

(vii) In judging the likely consequences of disclosure on officials` future conduct, we are entitled to expect of them the courage and independence that has been the hallmark of our civil servants since the Northcote - Trevelyan reforms. These are highly – educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions. The most senior officials are frequently identified before select committees, putting forward their department `s position, whether or not it is their own.

(viii) On the other hand, there may be good reason in some cases for withholding the names of more junior civil servants who would never expect their roles to be exposed to public gaze. These are questions to be decided on the particular facts, not by blanket policy.

(ix) Similarly, notwithstanding past experiences which were recounted to us with a proper anonymity, we are entitled to expect of our politicians, when they assume power in a government department, a substantial measure of political sophistication and, of course, fair – mindedness. To reject or remove a senior official because he or she is identified, thanks to FOIA or for any other reason, with a policy which has now lost favour, whether through a change of administration or simply of minister, would plainly betray a serious misunderstanding of the way the executive should work. It would, moreover, be wholly unjust. We should therefore proceed on the assumption that ministers will behave reasonably and fairly towards officials who promoted – or are believed to have promoted policies which the new incumbent rejects, policies which may not, anyway, reflect the official `s private view. By the same token, new ministers can expect from that official the same level of engagement with the policies which they now wish to pursue.

(x) Likewise, decisions should not assume the worst of the public. The answer to ill – informed criticism of the perceived views of civil servants is to inform and educate the critic, however hard that task may be, not to deny information, simply through fear that it may reflect adversely and unfairly on a particular official.

(xi) A blanket policy of refusing to disclose the names of civil servants wherever they appear in departmental records. cannot be justified because, in many cases disclosure will do no harm to anyone, even if it does little good. Quite apart from cases falling within (iv) above, there will plainly be instances where an individual has advanced particularly sensitive or controversial advice which for whatever reason should not be attributed. It might be appropriate to disclose the advice with the name redacted. Again, each decision will depend on the facts of the case. There must, however, be a specific reason for omitting the name of the official where the document is otherwise disclosable. That reason may not need to be utterly compelling where, as will often be the case, there is little or no public interest in learning the name."

Three further decisions have also been published on the Tribunal's website today:

Appeal Number: EA/2006/0045
Decision Promulgated: 28 February 2007
Between: Norman Baker MP (Appellant) and Information Commissioner (Respondent) and The Cabinet Office and National Council for Civil Liberties (Additional Parties)
Decision: The Tribunal upheld the Commissioner's decision notice dated 11 July 2006 and dismissed the appeal.

Appeal Number: EA/2006/0040
Decision Promulgated: 5 March 2007
Between: The Secretary of State for Work and Pensions (Appellant) and Information Commissioner (Respondent)
Decision: The Tribunal upheld the decision notice dated 5th June 2006 and dismissed the appeal.

Appeal Number: EA/2006/0017
Decision Promulgated: 6th March 2007
Between: Guardian Newspapers Ltd (Appellant) and Information Commissioner (Respondent) and The Chief Constable of Avon and Somerset Police (Additional Party).
Decision: The Tribunal upheld the decision notice dated 22nd February 2006 and dismissed the appeal.