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ID card reviews must be published, rules Information Tribunal again

The Government will have to publish controversial reports on its identity card scheme after the Information Tribunal backed the Information Commissioner's order to publish at the end of a protracted legal wrangle.23 Feb 2009

Anti-ID cards activist Mark Dziecielewski had requested the publication of the reports under the Freedom of Information (FOI) Act. The reports are the result of 'gateway reviews', which are undertaken at certain points in the massive ID cards project.

The reviews are said to be critical of the progress of the project at the time they were undertaken, in 2006. The reviews were undertaken by the Office of Government Commerce (OGC).

The OGC has opposed the publication of the reviews. It has appealed previous rulings by the Information Commissioner and the Information Tribunal ordering publication.

Last year the High Court found fault with the way the Information Tribunal came to its conclusion and ordered a fresh ruling on the issue.

That ruling has now been published and the Tribunal has said that the reviews must be published but with the names of all the contributors and interviewees to the report hidden.

The OGC had initially rejected the request for publication of the reviews, arguing that publication would impair the function of the reviews. If people knew they were to be published, it said, they would not be honest in their assessment of the project's progress when being interviewed for the review.

The Tribunal rejected that argument, and said that an argument could be made that publication would encourage interviewees to ensure that their evidence was "candid and complete".

"In the Tribunal’s view there can be no doubt that there is a public interest in seeing that the Gateway Review Process itself in fact works," it ruled. "Many readers of the requested information would, the Tribunal feels, be reassured by disclosure that the system does work and that the Reports do in fact represent a thorough, though robust form of review of an ongoing project. If disclosure is ordered as to the Reports in this case, it is hard to see how this particular public interest would not be furthered."

In ordering the publication of the reviews with names obscured, the Information Tribunal emphasised that it was not trying to set a precedent for all gateway reviews to be published.

"Neither the Commissioner nor the Tribunal believes that all Gateway Reviews should be disclosed. This decision applies only to the two Gateway Reviews which have been requested to be disclosed," it said.

The Tribunal said that the names of all people in the report should be obscured, but not their job functions of grades within the civil service. The publication of the reports should happen within 28 days, it said.

The OGC said that it had not yet decided how to react to the ruling.

"The Information Tribunal has concluded that neither they nor the Information Commissioner believe all Gateway Reviews should be disclosed. It has made clear that its decision refers only to this specific request and does not set any precedent," said an OGC statement. "We are currently assessing the detail of the Information Tribunal’s decision and will respond in full in due course."

The High Court had sent the case back to the Information Tribunal because of a constitutional problem. The first ruling had been partially based on a report produced by a Parliamentary Select Committee.

Evidence drawn from Select Committees is not allowed in court cases because the other party must try to argue with the evidence. If the court finds in favour of the party arguing with that evidence then it has overruled a wing of Parliament. The courts cannot pass judgment on the Parliament that the UK's people have elected.

"In raising the possibility of its reliance on the opinion of the Select Committee, the Tribunal potentially made it the subject of submission as to its correctness and of inference, which would be a breach of Parliamentary privilege," said Mr Justice Stanley Burton in the High Court ruling.