Two requests were made for the release of reports on the
Government's identity cards system but the Office of Government
Commerce (OGC) refused them, saying that the balance of public
interest lay in their non-disclosure.
The Information Commissioner's Office (ICO) said that under the
FOI Act the requests were legitimate and ordered the disclosure of
the information. The Tribunal has now backed the ICO.
The Tribunal said not only that these reports should be made
available, but that the OGC was attempting to ensure that all such
reports were given an automatic exemption from disclosure. This was
wrong, said Tribunal chairman John Angel.
"Although [OGC lawyer] Mr Tam says he is not putting forward a
case for [reports] to be subject to an absolute exemption under
FOIA it seems very like that to us," said Angel in the ruling. "He
says that the combined extent of the harm which will flow from
disclosure is so overwhelming that there can be very few exceptions
and then only possibly after a long period of time, say 30
years."
All major Government projects must now be subjected to reports
at crucial stages of their development before proceeding to the
next stage. Designed to detect and solve problems earlier rather
than later, these are called gateway reports.
The OGC argued that workers' honesty in the reports was
contingent on their remaining confidential. "[Tam's] whole argument
is based on the fact that the GR [gateway report] system can only
continue to be successful if disclosure is not a realistic
possibility," said Angel.
But the Tribunal said that Parliament had had the opportunity to
exempt the reports from the Act and had chosen not to, so the
Tribunal should not allow the OGC to assert that an exemption
exists.
"The FOIA has been around for seven years, from before the start
of GRs," he said. "Parliament in its wisdom has absolutely exempted
certain information from the Act, but it has not exempted GRs as
such in this way."
Angel was scathing about assurances reportedly given to
participants that their comments would not be made public.
"We cannot understand how the OGC appears to have given such
internal assurances that reports would not be disclosed under the
FOI Act," he said. "There has always been a possibility that GRs
would be disclosed under the FOI Act. GRs are all about the
management of risk. We would have thought that FOIA would have been
factored into that risk assessment because cases like this appeal
were foreseeable.
"To have developed a system on the apparent assumption that
there was little or no risk of disclosure is at the very least
unprofessional and at variance with one of the aims of GRs which is
to encourage and support, in effect, more professionalism in the
way programmes and projects are undertaken.," said Angel.
The Tribunal said that some reports would qualify for exemption
from the Act. Angel said that it was unlikely that the "floodgates
would open" and all the reports would be made public.
"The Tribunal has considered all the circumstances of this case
and finds that the public interest in maintaining the exemption
does not outweigh the public interest in disclosure," said Angel.
"In other words we uphold the Commissioner’s Decision Notices in
this case.
He ordered that the information be released, but delayed the
release by 14 days so that the Tribunal could decide whether or not
the names of the interviewees should be blanked out.
