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Department of Health v. Information Commissioner and Rt Hon John Healey MP and Nicholas Cecil

Case number:
EA/2011/0286 & 0287
Country:
United Kingdom
Date of decision:
5 April 2012
Court / Arbiter:
First-Tier Tribunal, General Regulatory Chamber, Information Rights (reviewable by Upper Tribunal) ( First instance )


Decision:

FOIA exemption on disclosure of information relating to the formulation or development of government policy can be outweighed by a public interest to disclose. Public authority must release risk registers evaluating health policy if the request is made when policy consultation and formulation has been largely completed, but not during a period of consultation and when the register includes more sensitive policy information.


Keywords:
Deliberations / Advice (including free and frank provision of advice within and among public bodies, executive privilege, internal documents, opinions, analyses, reports)
Policy formulation (including draft documents)
RTI law

Case details:

Facts

Two individuals sought information from Department of Health (DOH) in connection with National Health Service reforms outlined by the government in a July 2010 White Paper (para. 3). In November 2010, John Healey, Shadow Secretary of State for Health, requested a copy of the policy’s Transition Risk Register (TRR) (paras. 6-7). Subsequently, in February 2011, Nicholas Cecil, a journalist, sought information on the Strategic Risk Register (SRR) (para. 8).

DOH refused the requests relying on Section 35(1)(a) of FOIA, which, in conjunction with Section 2(2), allows for information relating to “the formulation or development of government policy” to be withheld, to the extent that the “public interest in maintaining the exemption outweighs the public interest in disclosing the information” (paras. 9, 20-21). DOH also redacted the names of four civil servants, relying on FOIA Section 40(2), which exempts certain personal data from disclosure (para. 20).

Decision

The Tribunal balanced the need to create a ‘safe space’ for policy formation during the policy-making process against the public interest in disclosure at the time of the request (paras. 60-61). While the Tribunal acknowledged that sometimes information must be withheld to prevent a chilling effect on policy deliberation, it found that this effect is not always present and can be outweighed by a public interest to disclose (paras. 64, 67, 72-73).

In the case at hand, the Tribunal understood there was a strong public interest in ensuring transparency, given the controversial nature of the health reforms and their effect on millions of Britons (paras. 81, 87). It ordered the release of the TRR, since by time Healey put forward his request (November 2010) a policy decision had already been reached, thus reducing the need for a safe deliberation space (paras. 34, 84, 89). In contrast, the Tribunal denied Cecil’s request for the SRR on the grounds that it constituted information more strongly related to ongoing policy efforts and that, at the time of the request (February 2011), the government was in the process of reevaluating its positions and renewing a consultation phase (paras. 50, 84, 91).

In considering the disclosure of individuals’ names in the TRR, the Tribunal rejected a blanket distinction between junior and senior civil service officials, finding that each individual’s expectation of privacy should be evaluated separately, independently of their title and seniority (paras. 92, 94). It required that the names of three individuals, whose role was similar to those whose disclosure was not objected to, be released. In addition, it ordered the redaction of data pertaining to an individual with only a minor administrative role (paras 95-96).

Note

Following the Tribunal’s decision, Andrew Lansley, Secretary of State for Health, overruled the decision under Section 53(2) of FOIA and withheld the documents, despite the objections of the Information Commissioner. The Commissioner noted his concern that this was the first ministerial veto used outside the context of Cabinet material.

Resources:

Judgment of the Tribunal.

Information Commissioner’s Report on the ministerial veto.