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

The Herald Business - - Professional Brief -

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.

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