The Freedom of Information Act: Exposing the Inner Workings of Government?

11 April 2012

The Information Tribunal’s decision concerning the disclosure of two Department of Health risk registers relating to the Government’s highly controversial reforms to the NHS was published last week. This highlights the potential for government policy documents to be disclosed under the Freedom of Information Act 2000, whether sooner or later.

Although the risk registers fell within the exemption under s35(1)(a) of the Act concerning the formulation or development of government policy, this is subject to countervailing public interest considerations in favour of disclosure. In circumstances where NHS reforms were being rapidly introduced with a view to making savings of up to 25% of total NHS turnover, the strength of public interest in disclosing the registers was clear.

The more difficult assessment was in relation to the public interest against disclosure. The Tribunal accepted that civil servants must be able to engage in frank and candid debate away from the pressures of media scrutiny and public comment.  In order to reconcile the competing public interests, following earlier decisions concerning section 35(1)(a), the Tribunal confirmed that the Department of Health must be allowed a “safe space” to consider various policy options. With respect to the legislative process, as in this case, it commented that “there may be a need to, in effect, dip in and out of the safe space during the passage of time so the government can continue to consider its options.” Giving careful consideration to the chronology of events, the Tribunal ordered the disclosure of the risk register requested at a time when consultation had ceased and policy seemed settled. In contrast, the other risk register was able to be withheld on the basis it was requested at a time when the reforms were being strongly questioned in Parliament and the Government was re-evaluating its position.

Accordingly, for those seeking information subject to the section 35(1)(a) exemption, it is clear that the timing of the freedom of information request is critical. And for those within government departments, where there is sufficient public interest, disclosure of documents relating to the development of policy may be inevitable. 

Department of Health v Information Commissioner, Rt Hon John Healey MP and Nicholas Cecil EA/2011/0286 and 0287

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