PL&B FOI E-news, Issue 41

1. UK minister uses FOIA veto for first time to withhold cabinet minutes

The UK Justice Secretary, Jack Straw, used the ministerial veto power in the Freedom of Information Act for the first time on 24 February to override the ruling of the Information Tribunal that cabinet minutes about Iraq should be disclosed. The Justice Secretary said that he used the veto to ensure that ministers could speak frankly in cabinet.

Commenting on the government’s decision to use its veto power to stop the publication on Cabinet minutes relating to decision to go to war in Iraq, Richard Thomas, Information Commissioner, said on 24 February:

“My Decision to order disclosure of the Cabinet minutes was made under the Freedom of Information Act on public interest grounds. It was upheld by the Information Tribunal. It was made clear by the Tribunal and by me that this was an exceptional case.
“The government has chosen not to appeal the Tribunal’s decision to the High Court, but instead has exercised its right of veto under the FOI Act. However, it is vital that this is also an exceptional response. Anything other than exceptional use of the veto would threaten to undermine much of the progress made towards greater openness and transparency in government since the FOI Act came into force.

“I shall be studying the text of the Secretary of State’s Certificate and Statement of Reasons which I received today. Using the power available to me under section 49(2) of the Freedom of Information Act, I will shortly lay a report before Parliament to record the circumstances leading to this outcome. This will be in line with previous commitments I have made and the interest shown by past Select Committees in the potential use of the veto.”

The Campaign for the Freedom of Information condemned the veto. The Campaign said the government should have abided by the Information Tribunal’s decision on the release of the cabinet minutes - or appealed against it, but not overruled it. It said the UK Freedom of Information Act had one of the most elaborate appeals processes in the world, involving the Information Commissioner, the Information Tribunal, the High Court and if necessary the Court of Appeal and House of Lords.

The Campaign’s director Maurice Frankel said the Campaign “was concerned that having been used once, the veto might now be used in other cases involving the examination of policy at lower levels in government.” The Campaign also pointed out that in Australia the Labour government has just introduced a bill to remove the ministerial veto from Australia’s Freedom of Information Act. In New Zealand, cabinet papers and minutes are often disclosed under the Official Information Act or published by government.

A full analysis will appear in the next issue of Privacy Laws & Business UK.

2. Salary scales of senior staff should be published, ICO says

Senior public officials’ salary bands should be publicly available as a matter of routine, according to new Guidance published on 23 February by the Information Commissioner’s Office (ICO).

The ICO Guidance, When should salaries be disclosed?, explains that salary details, bonuses and performance related pay should be in the public domain to the nearest £5,000 band when there is a legitimate public interest. Disclosing exact salaries will only be required in exceptional circumstances.

The ICO says that staff responsible for major policy and financial initiatives can expect greater scrutiny of their pay than more junior employees.

3. Law Lords support Tribunal in Sugar vs BBC on news coverage of the Middle East

The Law Lords have upheld the Information Tribunal’s decision in the case of Sugar vs BBC. The decision of 11 February 2009, taken by a majority of three to two, states that the Information Tribunal had jurisdiction in the matter as BBC can, in this case, be regarded as a public authority.

Mr Sugar’s FOI request was for a report regarding the BBC’s news coverage of the Middle East, in particular the conflict between Israel and the Palestinians.

The BBC can still take the case to the High Court on a point that the Tribunal’s decision was wrong in law.

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