Peering into dark corners
The Freedom of Information Act has been in operation long enough now to see patterns of disclosure and non-disclosure emerging
It is now 18 months since Freedom of Information legislation came into force and one of the most interesting facets of the Scottish and UK Information Commissioners’ decision-making has been the application of the public interest test.
In terms of the Freedom of Information legislation there are certain exemptions which can potentially exclude requested information from disclosure. Many of these exemptions are, however, subject to a public interest test.
This means that, while information may fall under an exemption such as prejudice to the conduct of public affairs or formulation of government policy, the public authority holding it cannot automatically refuse to release it. Rather, the authority must weigh up the public interest in withholding the information against the public interest in disclosure, and the request for information can be refused only if the former is stronger than the latter.
The question of public interest applies in other areas of law. For example, it has often been referred to by the courts in looking at whether or not information relating to celebrities should remain confidential or should be made public. As a result of Freedom of Information we are now finding that public authorities must make these judgments on a regular basis. These judgments have been subject to frequent scrutiny by the commissioners and we are now starting to see a number of principles emerging.
Signif icantly, the Scottish Information Commissioner (SIC) has distinguished information in which the public is interested from information that is in the public interest.
This principle was expressed in a recent decision regarding a journalist’s request for correspondence between the Royal Family
and the Scottish Executive, and internal Executive documents, indicating the Royals’ opinion on the Holyrood project. The SIC found that although the information requested might be of interest to the public, the public interest in protecting communications of the Royal Family, particularly those made in a personal rather than a public capacity, was heavier than that in disclosure.
This was despite the journalist’s arguments that the public had a valid interest in the interaction between the monarchy and the Executive—both of whom are publicly funded—over an important aspect of Scottish public life.
Other SIC decisions on the application of the public interest test show more of a tendency towards disclosure. In a case involving several requests by an individual for information relating to the formulation of the Scottish Executive’s sexual health strategy, the SIC emphasised that there is a presumption that disclosure will be in the public interest. This is in line with the spirit of the act, which is intended to ensure accountability, transparency and the scrutiny of decision-making processes. The onus is on the public authority holding information to demonstrate compelling reasons why it would be in the public interest to withhold it.
In a recent decision that has attracted much publicity, the UK Information Commissioner was forced to weigh highly sensitive public interest considerations. A number of requests had been received by various government departments for information relating to the advice given to the government by the Attorney General in March 2003, to the effect that military intervention in Iraq was legal.
The Information Commissioner consolidated his response to all the requests into one enforcement notice, setting out in detail the conflicting public interest arguments for and against disclosure, and arriving at the conclusion that the public interest dictated the release of certain information, given the government's adoption of an unequivocal stance on a highly controversial issue.
However, the public interest was not strong enough to compel disclosure of un-circulated drafts or information of a tentative, provisional or preliminary nature, such as might reveal legal risks, counter-arguments, or reservations.
The Information Commissioner stressed that this was an exceptional case, and should not be considered as creating a precedent for other decisions.
However, the enforcement notice shows the deep impact that freedom of information has had in the UK, and the vital role that the public interest test has to play in the application of the legislation.
Content supplied by Alison White, a partner with commercial law f irm Shepherd+ Wedderburn.