Info Tribunal fluffed on FOI, rules High Court

Overlooked public interest in legal privilege case

The Information Tribunal misunderstood part of a Freedom of Information (FOI) Act request and failed to properly adjudicate other parts of it, the High Court has said. The case must be re-considered by the Tribunal.

The Information Tribunal hears appeals from decisions of the Information Commissioner, and Tribunal decisions can be appealed through the courts.

When the Government passed the Financial Services and Markets Act in 2000 the then-Chancellor Gordon Brown declared that the law was compatible with the Human Rights Act.

Evan Owen wrote to the Treasury to ask to see the legal documentation on which that declaration was based. His request was made under the provisions of the FOI Act. The Treasury denied his request, saying that advice from Government advisors the Law Officers was exempt from disclosure under FOI. There is a provision in the FOI Act that exempts information subject to legal professional privilege.

The Information Commissioner's Office (ICO), which can make FOI rulings, agreed that the advice was exempt from disclosure. It also ruled, though, that the Treasury should disclose whether or not Law Officers' advice was held by it. It did not have to disclose what the advice was, only whether or not it had been given, the ICO said.

The Treasury appealed that decision to the Information Tribunal, which backed the ICO's ruling, and to the High Court. It said that even just the fact of whether or not advice had been sought or given could be politically sensitive and damage the confidentiality necessary for legal advice to be effective.

The head of the Attorney General's office Jonathan Guy Jones told the Tribunal why disclosing the information could be damaging.

"To disclose, other than exceptional cases, whether the Law Officers have advised or not would subject this process to inappropriate and undesirable pressure," said his witness statement. "On the other hand it could lead to their advice being sought for the wrong reasons (for example, in order to provide a minister or department with political 'cover', rather than because of the nature of the issue itself): this in turn would risk unduly politicising the role of the law officers and lead to their being held responsible for essentially political decisions."

"On the other hand it could lead to the Law Officers' advice not being sought (e.g. because of the fear this would imply that a department was uncertain about the strength of its legal position and possibly invite legal challenge), even though this would be justified by the issue in question," he said.

In its ruling on the issue the High Court has made no finding on whether or not the information should be disclosed but has asked the Tribunal to re-consider the case. It said that when the Tribunal backed the disclosure of the existence or not of advice it misunderstood some of the case and failed to consider adeqately some of the public interest arguments made in it.

The FOI Act says that members of the public have the right to know if a public authority holds the information they are looking for. The right it not absolute, though, and can be refused if "the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information", the law says.

The Court found that the Tribunal had had a "fundamental misunderstanding" about the convention governing Law Officers' behaviour and its relation to the case which was "at the heart of the Tribunal's concerns".

It also said that the Tribunal did not properly consider the balance of public interest in disclosure or withholding of the information.

"This Tribunal has erred in considering how to approach the strength of the public interest in maintaining the exemption from disclosure of the information whether the Law Officers have advised or not," said Mr Justice Blake's ruling.

The High Court said that the Tribunal had failed to conclude that the meaning of legislation was that real weight should be given to the convention governing Law Officers' behaviour, and that the "general considerations of good govenrment" could weigh heavily in favour of exempting the asked-for information.

The Tribunal also failed by not giving enough weight to expert evidence given to it, and was too much swayed by its misunderstanding of the relationship between the Law Officers' Convention and the FOI Act.

The ruling also said that the Tribunal relied too heavily on the Information Commissioner's analysis of some crucial aspects of the case. "There is substance in the complaint that the Tribunal did not evaluate for itself the strength of the public interest in disclosing whether the law officers had advised the department," the ruling said.

The High Court also said that it was not clear why this case in particular should be treated differently, given that the Information Commissioner and Information Tribunal happily conceded that confirmation of the possession of information should not always be disclosed.

"Neither the Commissioner nor the Tribunal were indicating that in all cases ... could it be said that the public interest in disclosure outweighed the public interest in maintaining the exemption," said Mr Justice Blake. "But if that is so, it is difficult to see what is so special about the present case."

The Court said that it would make no ruling on the substance of the claims, but would ask the Tribunal to rule on them again.

"In my judgment it is constitutionally important that the Tribunal reaches its own decision rather than this court second guess it on the question," said Mr Justice Blake.

See: The ruling

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