Government appealing ruling on disclosure of 20+ year old Rowntree takeover papers

The Government are reported to be seeking to appeal against the recent decision by the Information Rights Tribunal (Cabinet Office v IC, EA/2011/0263) ordering the disclosure of information relating to the controversial takeover of Rowntree Mackintosh by Nestle in 1988. At the time of the request the disputed information was at least 22 years old.

The decision to appeal is illogical given the Government's decision to proceed with reducing the "30 year rule" to 20 years. The decision to move to a 20 year rule was taken by the previous Labour Government, following a review by Paul Dacre. The Coalition Government confirmed it would go ahead with the policy on 7 January 2011.

Lord McNally recently announced that the Government intended to start implementing the change in 2013, with two years' worth of records being transferred to the National Archives every year until the transition is complete in 2023. He also confirmed there would be a corresponding reduction in the maximum lifespan of a number of FOI exemptions including section 35. He said:

The change to a "20-year rule" is a key part of our Transparency Agenda and will see a wealth of historical material opened to the public much earlier than under current arrangements. The aim is to provide greater openness and accountability, strengthening democracy through more timely public scrutiny of government policy and decision-making. 

Yet the Cabinet Office is now seeking to appeal a decision ordering the disclosure of information from 1988, even though the Government has accepted that 20 year old policy discussions should not be exempt.

The Cabinet Office refused to disclose five documents about the takeover under sections 35(1)(a) and (b) citing the need to protect collective responsibility. It also refused to even confirm or deny whether the takeover had been discussed by the cabinet. However, the Tribunal concluded the public interest favoured disclosure of the information:

71. We accept that government must be given a protected safe space for policy formulation and development. However in the circumstances of this case we find that there is very little evidence that merger policy or the Ministerial Code were under active policy review during the time period. In any case merger policy is very different today to that in 1988. Therefore we find the need for a safe space was diminished and accordingly the weight we should attribute to this public interest factor.

73. In contrast the public interest in transparency and openness in this case seems to us to be very weighty indeed. This is not only for the reasons given by the Commissioner and Mr Aitchison [the requester], and the likely continuing consequences for employment in the confectionary industry in York. There is also a weighty public interest in knowing that when a Minister of the Crown is charged with exercising a quasi-judicial function (as was the case with the decision which fell to Lord Young to take about the takeover of Rowntree), the quasi-judicial role of the decision maker was not compromised by improper political or other pressures.

Draw your own conclusions!

Commissioner orders extracts from note of Blair/Bush telephone discussion to be disclosed

The Information Commissioner has ordered the Foreign and Commonwealth Office to disclose extracts from a note of a telephone conversation between Tony Blair and George Bush on 12 March 2003, shortly before the decision to go to war against Iraq (Decision Notice FS50341647). The Commissioner found that the exemptions for international relations (sections 27(1)(a) and 27(2)) and ministerial communications (s.35(1)(b)) applied to the information. In respect of information supplied by President Bush to Prime Minister Blair, he found the public interest in withholding the information outweighed the public interest in disclosure. However, for information that wasn't obtained from the US, which concerned the Iraq issue only from the UK perspective, the public interest favoured disclosure.

83. After careful consideration, and in circumstances where the respective public interest considerations are very finely balanced, the Commissioner is of the view that the public interest in maintaining the section 27 exemption to protect the confidentiality of the information provided by the US (in the form of information provided to Mr Blair by President Bush), outweighs, by a significant, but by no means overwhelming margin, the public interest arguments in favour of disclosure of this information, persuasive and weighty though they are.

84. The Commissioner emphasises that his decision with regard to the information contained in the document consisting of information obtained from a State (US) other than the United Kingdom, has been made because the Commissioner believes that the short-term and specific public interest benefits of releasing this particular information (important though they are) would be outweighed by the risk posed to the long-term integrity and maintenance of the relationship between the UK and the US, particularly that between Prime Minister and President.

85. However, the strength of the public interest attached to this specific information is such that the Commissioner considers that the public interest balance (assessed under either section 27 or section 35(1)(b) must be determined differently with regard to the information contained in the document which is not information obtained from the US (i.e. information which does not disclose the confidences given by President Bush, or reveal, directly or otherwise, the confidential information provided to the UK in the telephone discussion.) Once that information (the majority of the information contained in the document) is protected via appropriate redactions, the public interest arguments for disclosure of the remaining information at least equalise (and in the Commissioner’s view appreciably exceed) the public interest arguments in favour of maintaining the section 27 or section 35(1)(b) exemptions.

86. The Commissioner considers that such was the gravity and controversy of the decision by Prime Minister Blair to commit the country to the military action taken in Iraq, then any information which might provide the public with an insight or awareness of the Prime Minister’s thinking during the critical period when the decision was finalised, and its implications for the UK carries with it a powerful and compelling public interest in disclosure. It is for this reason that the Commissioner has decided to order partial disclosure of the information in this case, such disclosure being limited to select extracts of the information which concern the Iraq issue only from the UK perspective, and which do not reveal any confidences or information given by the US, nor prejudice UK relations with either the US, the UN or any other countries.

The original request for information in this case was for records of governmental discussions which took place between the UK, France and the US following the television interview of President Chirac on 10 March 2003. The FCO initially withheld all of the requested information, but disclosed 5 of the 6 documents, including a note of a discussion between Prime Minister Blair and President Chirac, during the course of the Commissioner's investigation, accepting that the balance of public interest had shifted in favour of disclosure following evidence heard by the Iraq Inquiry. The disclosed documents were placed in the public domain on the Iraq Inquiry website.