An edited version [£] of the letter appeared in The Times on 20 December 2011. The full letter is below.
Sir, It is hard to believe that the Freedom of Information Act is the severe threat to cabinet government that Sir Gus O’Donnell, the cabinet secretary, maintains (‘Keep Cabinet secret’, December 17).
If the government thinks that the public interest favours keeping policy discussions or ministerial communications confidential, it can already appeal to a Tribunal against any decision by the Information Commissioner to order disclosure. There are further rights of appeal to an Upper Tribunal, the Court of Appeal and beyond. If arguing the case is too much trouble, ministers can instead simply veto the decision. As Sir Gus acknowledges, this has twice been done to protect cabinet and cabinet committee minutes. Yet he now seeks further protection precisely for such minutes.
The Tribunal’s decisions explicitly give heavy weight to the public interest in protecting collective cabinet responsibility by withholding evidence of ministerial disagreements. They also assume that disclosing options or advice while these are still under discussion is unlikely to be in the public interest.
When Tony Blair prematurely announced, in 2006, midway through a public consultation on nuclear energy that he had already decided the key issue, the Tribunal nevertheless refused to order disclosure of the briefings he had received or the views of ministers, finding that “they were entitled to be treated as confidential” at the time of the request “and probably for a substantial time thereafter”. Officials’ advice was also withhelsd.
Sir Gus presumably wants the Prime Minister to resuscitate the proposal rejected by the last government, to exclude all cabinet and cabinet committee papers - not just minutes - including exchanges between departments, from FOI for 20 years. This would have kept secret interdepartmental discussions on issues like BSE, permitting disclosure only when it was too late to inform debate, provide accountability or learn from mistakes. Key documents on countless other issues would also be secret for two decades, regardless of the public interest in openness or the fact that when requested they might no longer be sensitive.
The last government rejected this proposal. The present should do the same.
Director, Campaign for Freedom of Information