Spinal Surgery Complications – A Change in the Law?
The Freedom of Information Act 2000 was intended to make the process of government more open, accountable and transparent. And it has gone some way in achieving these objectives. However, have there also been unintended consequences? Most notably is the fear that the Act has had a 'chilling effect' upon frank and open communication within the range of central and local government bodies and other public authorities subject to the Act, as well as the full and accurate recording of that communication.
In the wake of the furore concerning Michael Gove's use of private email accounts late last year, a further Whitehall investigation has now commenced concerning the alleged use of personal email accounts by officials to avoid requests under the Act. On the face of it, these examples demonstrate that the Act is adversely impacting on how government conducts its day to day business. However, despite extensive academic, judicial and parliamentary scrutiny, the issue is far from clear cut.
An uncertain safe space for policy making: The views of the Information Tribunal
The Information Tribunal considered this issue earlier in the year in the course of its deliberations concerning the disclosure of two Department of Health risk registers (Department of Health v Information Commissioner, Rt Hon John Healey MP and Nicholas Cecil EA/2011/0286 and 0287). The registers fell within the exemption under section 35 of the Act relating to the formulation or development of government policy which, as a -qualified exemption,' required the Tribunal to balance the public interest for and against disclosure.
The Tribunal accepted that Department of Health civil servants must be allowed a -safe space' to engage in frank and candid debate away from the pressures of media scrutiny and public comment. However, it noted that -there may be a need to, in effect, dip in and out of the safe space during the passage of time.' Accordingly, one of the risk registers was withheld on the basis it was requested at a time when Government was re-evaluating its position and the other was ordered to be disclosed as it was requested at a time when the policy seemed settled, albeit the Secretary of State subsequently exercised his ministerial veto under the Act to prevent disclosure.
Approval of the status quo: The conclusions of the Parliamentary Select Committee
This issue same occupied the time of the Justice Select Committee tasked with -post legislative scrutiny' of the Act since it come into full effect in 2005. It heard evidence from 37 witnesses, received 140 written submissions and delivered its report this summer.
Lord O'Donnell, former cabinet secretary, spoke of the uncertainty amongst policy makers as to whether something written down would be subsequently disclosed. In his words, -How do you avoid this problem arising? You basically find a medium which is not covered by FOI. The cost of mobile phone bills goes up between ministers.' Jack Straw, former Home Secretary, was aware that other Government departments had unminuted meetings for fear of future disclosure. It is no secret that Tony Blair considered it one of his greatest mistakes in office. In his evidence to the Committee, he stated that Act went far beyond what was originally intended, commenting that the -original idea was to make available the facts behind the decisions, not the confidential policy debate around those decisions.' He emphasised that the impact of publication was counter-productive to the aims of frankness and openness.
In contrast, the UCL Constitution Unit, having conducted interviews with a large number of officials across central and local government, concluded that the Act had not negatively impacted upon the quality of advice. Nevertheless, it stated that it was also apparent that written records may sometimes not be as correspondingly full and frank as the advice being received.
Faced with continuing uncertainty with respect to the extent and nature of the feared -chilling effect', the Committee approved the status quo in its report so that the -safe space' is not guaranteed but rather competing public interest concerns will continue to need to be weighed in each case. Further, it acknowledged that the ministerial veto would need to be used -from time to time to protect that space.'
At the end of its review, the Justice Select Committee confirmed that the Act has been a success and made only limited recommendations for change. It is clear that the Act is here to stay and requests for disclosure under the Act continue to steadily increase.
In light of the decision of the Information Tribunal and the conclusions of the Committee, individuals working within central or local government may be right to feel uncertain about the nature and extent of the -safe space' for policy making and concerned that communications may be disclosed in future. The ministerial veto provides a safety net but no certainty at the time of sensitive communications. Common sense suggests that this will have some impact upon the way in which government operates, albeit there is insufficient evidence to support Mr Blair's opinion that the operation of the Act is counterproductive to openness and transparency.
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