An anti-ID card activist and a Liberal Democrat MP asked for
copies of confidential reports into the progress of the ID card
project run by the Home Office. They were refused, but the
Information Commissioner backed their case and ordered the release
of the papers, called Gateway Reports.
The Government appealed to the Information Tribunal, which also
backed the release of the papers earlier this month. It has now
appealed to the High Court in an effort to keep the reports secret.
The Information Commissioner's Office (ICO) has said it will defend
the case in the High Court.
Gateway Reports were designed as a safety mechanism for large
government projects. They are intended as an honest assessment of
the cost and likelihood of success of projects carried out at
crucial junctures in projects' development.
The OGC has argued that the reports must stay confidential in
order to be effective because if they were going to be made public
then civil servants would not give an honest assessment of a
project's failings.
The Information Tribunal said it was not comfortable with any
blanket exemption for Gateway Reports.
"Although [OGC lawyer] Mr Tam says he is not putting forward a
case for [reports] to be subject to an absolute exemption
under [the Freedom of Information Act] it seems very like
that to us," said Tribunal chairman John 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."
Angel said that if Parliament had wanted a blanket exemption to
apply, it would have mandated that in the Freedom of Information
Act.
"[The OGC] does not agree with the Tribunal's findings on where
the public interest lies in relation to what information should be
disclosed and what it is appropriate to withhold," said an OGC
statement. "In the Government's view, disclosure would seriously
undermine the effectiveness of the Gateway process, as
confidentiality is essential to the whole process.
“The Gateway process is a crucial management tool to improve the
success of the government's projects and programmes. In the
Government's view it is not in the public interest to put that
effectiveness at risk through disclosure of the information
contained in the two reports concerned in this case," said the
statement.
The ICO said that it understood the Government's position, but
believed that it had not got the balance of public interests right.
"In reaching his decision, the Information Commissioner was aware
of the importance the government attaches to the Gateway Review
process and the balance between public accountability and
transparency, and maintaining public confidence in the robustness
and effectiveness of the Gateway Review process," said an ICO
statement.
"However in these cases he was not persuaded that the Gateway
Review process would be damaged by the disclosure of this
information. The Commissioner concluded that disclosure is likely
to enhance public debate of issues such as the programme’s
feasibility and how it is managed," said the statement.
The appeal against the Tribunal ruling will not be a re-run of
the entire case; the OGC can only appeal on specific points of
law.
Influential House of Commons committee the Public Accounts
Committee has already recommended that Gateway Reports be made
public, as has the Work and Pensions Committee.
It emerged in the Tribunal hearing that Government employees had
been told that their comments to the Reports would remain
confidential. This approach was attacked by Angel.
"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.
