PL&B FOI E-news, Issue 51

  1. Government uses FOI veto again
  2. New guidance from the ICO on what to record when considering an exemption
  3. Royal Mail to release performance statistics

1. Government uses FOI veto again

Justice Secretary Jack Straw announced on 10 December a ministerial veto under S 53 with regard to an ICO decision to order disclosure of 1997 Cabinet Committee minutes on devolution.

Jack Straw said: “ conclusion rests on an assessment of the public interest in disclosure and non-disclosure of these Cabinet minutes, and of the exceptional nature of the case. Whilst the convention of collective Cabinet responsibility is only one part of the public interest test, in my view disclosure of the information in this case would put the convention at serious risk of harm. As an integral part of our system of government the maintenance of the convention is strongly in the public interest and must be given appropriate weight when deciding where the balance of the public interest lies. “

“Having done that, and having taken into account all of the circumstances of this case, I have concluded that the public interest falls in favour of non-disclosure and that this is an exceptional case where release would be damaging to the convention of collective responsibility and detrimental to the effective operation of Cabinet government. Consequently, this case warrants the exercise of the veto.”

An appeal against the Commissioner’s decision, scheduled to be heard by the Information Tribunal on 25 January 2010, will now be aborted. The ICO’s statement said: ‘The Information Commissioner regrets that the Tribunal’s role has been disregarded at this stage. On the only previous occasion when the veto was exercised, in relation to Cabinet minutes on the declaration of war on Iraq, the Tribunal had heard the appeal and had upheld the Information Commissioner’s decision. ‘

The Campaign for the Freedom of Information also issued a statement: ‘If the government had intended to use the veto it could have done so when the Commissioner’s decision was issued, nearly six months ago.’

‘One possibility may be that the government wanted to avoid a Tribunal decision appearing in spring 2010 forcing ministers to disclose or veto the release of the devolution papers just before or during a general election campaign. The actual timing of the veto - announced on the day the House of Commons published a highly contentious batch of MPs’ expenses - is likely to have reduced press coverage of the issue.’

The Information Commissioner has confirmed that he will report to Parliament whenever the ministerial veto is exercised. He will give evidence on 5 January to the Justice Committee on ‘Operation of the Ministerial FOI veto (Cabinet Minutes) and FOI caseload’.

2. New guidance from the ICO on what to record when considering an exemption

This new guidance, published on 17 December, indicates what the ICO recommends should be recorded when section 36 is considered before using an exemption under the Freedom of Information Act (2000) or the Environmental Information Regulations (2004) where release of information would prejudice the effective conduct of public affairs. It covers:

  • Identification of a person or body qualified to express an opinion on what should be exempt;
  • Evidence that the opinion has been expressed;
  • Correctly detailing what opinion has been expressed;
  • Recording the process by which the opinion was obtained; and
  • Recording the public interest test balancing exercise.

Download the guidance.

3. Royal Mail to release performance statistics

The Information Commissioner’s Office (ICO) has ordered Royal Mail to disclose recent performance figures about the delivery of first and second class mail. Royal Mail claimed the figures could help competitors acquire a detailed understanding of Royal Mail’s performance in a highly competitive market. The ICO says, however, that this information will not be of significant use to Royal Mail’s competitors, and has ordered it to be released on public interest grounds.

See the decision notice.

For further details on the Privacy Laws & Business UK Newsletter, please click here.

Copyright Privacy Laws & Business 2009