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Focus on Regulation

Do as we say, not as we do: Cabinet Office fails to avoid transparency again

The Cabinet Office has again failed to justify its attempts to avoid the transparency it so often vociferously promotes.

Last week, we reported on the Upper Tribunal’s dismissal of the Cabinet Office’s appeal which effectively sought to avoid the application of the government’s own policy on the reduction of the “30-year rule” to a “20 year rule” for Cabinet Papers.  This week, the First-tier Tribunal (the “FTT“) has rejected the Cabinet Office’s attempts to avoid disclosure of the number of times the Reducing Regulation Committee has met in the case of Cabinet Office v Information Commissioner (EA/2013/0119, 27 November 2013).

In one of its first actions after being elected, the Coalition Government established a Cabinet sub-committee, the Reducing Regulation Committee (the “RRC“) tasked with overseeing the Government’s policy of cutting unnecessary red-tape.  In August 2012, an individual made a request under the Freedom of Information Act 2000 (“FOIA“) for the number of times the RRC had met since it had been established.  The Cabinet Office rejected that request on the basis that it fell within the section 35 FOIA exemption for information relating to the formulation or development of government policy and ministerial communications.  That rejection was maintained on internal review.

A complaint was made to the Information Commissioner (the “Commissioner“), which accepted that the exemption applied, but considered that the public interest favoured disclosure.  In particular, the Commissioner pointed to considerable information about the RRC in the public domain, and further that the Government had invited considerable public involvement in the policy of reducing red tape.  The Commissioner rejected the Cabinet Office’s arguments that disclosure would lead to a misunderstanding as to the amount of work being done, undermine the work of the RRC or damage collective Cabinet responsibility.

The FTT rejected similar arguments made by the Cabinet Office concluding that “the public interest in maintaining the exemption is so weak that that it does not equal, let alone outweigh, the, admittedly light, public interest in disclosure.”  In reaching this conclusion, the FTT considered two issues of potential general application.

The first issue related to the public interest in maintaining class-based exemptions, as opposed to prejudice-based exemptions.  The FTT accepted, and apparently the Cabinet Office did not oppose, the Commissioner’s argument that, when considering the public interest balance in respect of class-based exemptions, both sides of the scale start empty – there is no inherent public interest in maintaining those exemptions, as there is in the case of prejudice-based exemptions where the prejudice required to establish the exemption applies is automatically part of the public interest in maintaining the exemption.

This means that if a public authority cannot identify any harmful consequences that would arise from disclosure, then disclosure should automatically be ordered because if there is no public interest in maintaining the exemption it cannot “out-weigh” the public interest in disclosure, even if that public interest is also negligible or non-existent: one empty pan cannot outweigh the other.

The second point of general application related to the Cabinet Office’s argument that the information in question could be “misinterpreted by journalists and the public as a measure of the government’s focus on regulatory simplification and the priority it attributed to it“.  The FTT rejected this argument on the basis that it was open to the Cabinet Office to provide an explanation, and that explanation would not require the disclosure of further sensitive information, not least because of the extensive information already in the public domain.

Although this assumption may be proved wrong if and when the information is released, it is difficult to avoid the conclusion that the Cabinet Office has effectively disclosed the answer to the original question, first by fighting this case, and second by the arguments it has chosen to run.  Would disclosure really have been so objectionable if the RRC had met regularly and often?

It is also difficult to reconcile the Cabinet Office’s approach in this, and other, cases to the Government’s own transparency agenda, which encourages all public authorities to release as much data as possible into the public domain.  It would appear, however, that the Cabinet Office, in conducting its own balance, has decided that the potential embarrassment from disclosure outweighs any charges of hypocrisy: very much a case of do as we say, not as we do.