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.
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