Case Law: Department of Health v. Information Commissioner, Why we should see Andrew Lansley’s diary in the run up to 2011 NHS reforms – David Hart QC

16 04 2015

Andrew LansleyOn 30 March 2015, the Upper Tribunal gave judgment in the case of Department of Health v. Information Commissioner et al [2015] UKUT 159. Simon Lewis had requested that the Department of Health supply him with copies of the ministerial diary of Andrew Lansley from May 2010 until April 2011, via a Freedom of Information request.

Mr Lewis’s interest in all this is not revealed in the judgment, but I dare say included seeing whether the Minister was being lobbied by private companies eager to muscle in on the NHS in this critical period. But such is the nature of FOIA litigation that it does not really  look at the motive of the requester – and this case does not tell us what the diary showed. Indeed by the time of this appeal, Lewis was untraceable, and the burden of the argument in favour of disclosure was taken up by the Information Commissioner.

The real interest in this decision is in Charles J’s robust agreement with the First Tier Tribunal that the information should be disclosed. In so doing, he fully endorsed the criticisms made by the FTT of the eminent civil servants who gave evidence before the FTT – in trenchant terms, as we shall see. He also gave an interesting account of how the public interest qualification should be applied in response to FOIA requests.

The main argument concerned s.35 of FOIA exempting (on a qualified basis) from disclosure information relating to the formulation or development of government policy, ministerial communications, and the operation of any ministerial private office. The qualification is that the non-disclosure should be in the public interest: s.2(2)(b) FOIA.

The Evidence

The Great and the Good had made written statements about how awful it was if the information were be revealed, but somewhat to the surprise of the parties the FTT directed that the witnesses should attend to be asked about this. They did not impress when questioned.  As Charles J commented

much of what they said warranted a “Mandy Rice Davies” side note.  They are reminders of the secretive culture of the public service that the House of Commons Select Committee reported that FOIA would help to change for good … and thus of an approach that there should be transparency but only on departmental terms which the civil service find convincing but which courts often did not.  They leave out important factors and, taken overall, lack objectivity in that they advance a “party line..”

In the end, he concluded that the evidence of Sir Alex Allen and Mr Paul MacNaught

falls way below the standards that the public and the FTT are entitled to expect of government departments and senior civil servants in advancing public interest arguments.

Strong stuff. In conclusion, their evidence should be “roundly rejected.”

The law

The specific legal interest of the case is that fact that the Department sought to take a “class” objection to the diaries, rather than a “contents” approach. It argued that everything within a certain category of information should not be disclosed, rather than that harm lay in the disclosure of a specific document. Charles J roundly rejected this approach. Indeed he pointed out that, in the related area of public interest immunity certificates, the courts and government had moved away from this approach in 1997 – the judge was all too aware of this because, as he pointed out, he had been advising government at the time. Hence

 It was therefore a matter of some considerable surprise to me to find out that a class approach was being taken in the context of FOIA as it seems to run directly counter to the thinking and underlying intention of Parliament when passing that Act.  Indeed….  the White Paper at paragraph 3.11 made clear that disclosure should be assessed on a “contents” basis.

Hence, in one of the more pithier judicial pronouncements [20]

In my view a class approach is wrong.

The judge then set out in some detail how the public interest defence on contents of documents should be applied. Government must show that the actual information falls within the class description of an exemption, and why the manner in which disclosure of its contents will cause or give rise to a risk of actual harm to the public interest. This stops some of the qualified exemptions preventing the release of, say, anodyne discussion as well as the full and frank exchanges the release of which might be damaging. The judge concluded that there is no presumption in favour of disclosure included in FOIA (contrast the Environmental Information Regulations):

Rather, the position is that if, after a contents based assessment of the competing public interests for and against disclosure has been carried out, the decision maker concludes that the competing interests are evenly balanced he or she will not have concluded that the public interest in maintaining the exemption (i.e. against disclosure) outweighs the public interest in disclosing the information (as s. 2(2)(b) requires).

A high degree of deference to either side is very unlikely to be appropriate when the Information Commissioner is assessing the public interest balance under s.2(2)(b). A further point arose. In the diary were the records of non-ministerial activities. FOIA applies to information “held at the time the request was received.” The Department argued that it did not hold the information within this definition – even though physically the diary was in their possession- because their was not a sufficient connection between the non-ministerial matters and Departmental business. The law on this point was much debated by the judge – [87] -[107]. His conclusion was that

the Minister gave the information to the Department on the express or implied basis that it could be entered into the diary in the way that it was for ….Departmental purposes….  In my view, this establishes a sufficiently direct connection between the content of the entries and the reasons why the Department was given them, recorded them and used them for its purposes (i.e. the operation of the Minister’s private office) to establish that the non-Ministerial information was held by the Department when it was entered into the diary.

Nor did it matter that the diary related to the past. All of the contents of the diary continued to be held by the Department after the passing of the events.

So the bulk of the diary was disclosed – with certain redactions being agreed by consent.

Conclusion

A rather dispiriting account of the continuing secrecy of government, happily countered by a robust and knowledgeable judge, ready to approve the FTT’s criticisms of the senior civil servants wheeled in to defend their position, and equally ready to reject the attempt to institute class-based assertions of non-discloseability once more. FOIA addicts will find much of interest in the learned judgment. But interested citizens will also find the steps taken by the Information Commissioner to uphold disclosure of this information, despite the disappearance of the requester, rather reassuring.

This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks. 


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