Information Commissioner Christopher Graham has called on the government to clarify the Freedom of Information Act – possibly even to amend or re-write it. He wants Whitehall to make clearer the circumstances in which the government can use its veto to prevent disclosure of documents to the public.
The call was made in a Report to Parliament by Graham after Health Secretary Andrew Lansley had vetoed publication of the Transition Risk Register, one of two sensitive documents produced by Lansley's department exposing the risks surrounding NHS reforms.
Rather than exhaust the appeals procedure, Lansley instead issued a certificate to veto publication, claiming that to publish one or both of the documents would damage cabinet government and the doctrine of collective responsibility.
Lansley had furthermore claimed that the public interest supporting release was outweighed by the "public interest in good cabinet government and/or the maintenance of collective responsibility". Ministers needed a ‘safe space' in which they could explore policies with departmental advisers without either fearing that their views would be made public, he claimed.
His arguments, however, were met with a withering commentary in the Information Commissioner's Report to Parliament.
"The government's approach in this matter appears to have most to do with how the law might be changed to apply differently in future," said the report. "This question falls naturally to consideration by the Justice Committee who have been undertaking post-legislative scrutiny of the Act."
The clear implication is that the Information Commissioner's Office (ICO) does not believe that Lansley's justifications for deploying the veto were valid.
The Justice Committee is currently taking evidence on the operation of the Freedom of Information Act since it was passed in 2000. Official pressure has been mounting to restrict the scope of the Act. Jack Straw, the former cabinet minister who introduced the Act, told the Justice Committee in April that it ought to be rewritten to increase secrecy in government decision-making.
A spokesperson for the ICO told Computing that previous vetoes had related only to the release of cabinet minutes, but Lansley had taken the veto into uncharted territory. "It's only ever supposed to be used in exceptional circumstances. This [the Report] is questioning whether this is an exceptional circumstance and also questioning the idea of a ‘safe space'," said the spokesperson.
The government not only needed to clarify the newly introduced concept of a ‘safe place', but also to explain how it applied to the Freedom of Information Act, he explained. That might require new guidelines to explain how the Act ought to be interpreted in future – or it might feed into the growing debate, led by government, over the future of the Act.
Campaigners had lobbied Lansley for two years to release both the Transition Risk Register and the Strategic Risk Register, relating to his controversial healthcare reforms. The documents relate to risks highlighted by his department over the far-reaching reforms to the National Health Service, which some believe could allow privatisation of parts of the NHS.
The Information Commissioner had argued that both documents ought to be released, issuing Decision Notices at the beginning of November 2011 ordering disclosure.
The First-Tier Tribunal, which hears appeals over Freedom of Information Act disclosures, had ruled that while the Strategic Risk Register should remain secret, the Transition Risk Register ought to be published.
Rather than follow the process to its conclusion, Lansley vetoed publication outright, issuing an exemption certificate under section 53(2) of the Freedom of Information Act, overruling the Information Commissioner's Decision Notice.
It is only the fourth time that a government minister has used the veto to prevent publication of a sensitive document under the Freedom of Information Act.
Whenever the veto is used, the Information Commissioner is obliged to produce a Report to Parliament. In his latest report, Graham questions Lansley's justifications for the veto. "On the three previous occasions on which the veto has been exercised, the Commissioner has made clear his view that it is vital that a ministerial certificate should only be issued under section 53 FOIA [Freedom of Information Act] in exceptional cases," he wrote.
The spokesperson for the Information Commissioner added: "This report clearly says that we have concerns about this decision."
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A discussion of the "risk perception gap", its implications and how it can be closed