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ICO blog: What is exceptional?

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Christopher GrahamBy Christopher Graham 
3 September 2012



While exceptional sporting achievements (and exceptional weather) have dominated the nation’s conversations over the past month, it’s been the issue of what is considered ‘exceptional’ when it comes to the Freedom of Information Act that has been attracting our attention at the ICO.

On 31 July, the Attorney General overruled an ICO decision ordering the release of minutes of a Cabinet meeting in 2003, at which military action against Iraq was discussed.

The Freedom of Information Act gives Ministers this last word on disclosure and I’m certainly not disputing that the power of veto is in the law as enacted by Parliament. The problem arises from the contrast between what the Act says and what Parliament was told it meant while the law was being debated. And it all centres on this word ‘exceptional’.

The Statement of HM Government Policy explaining the use of the veto says the circumstances have to be ‘exceptional’ – the word used here not with its usual ‘plain English’ meaning of rare or unusual, but instead in a policy sense of ‘where an exception should be made’.

Having considered the matter carefully, my view is that the circumstances of this case are by no means exceptional, and I’ve said as much in a report placed before Parliament this morning.

In many respects, the use of the ministerial veto is always likely to be controversial. Coming right at the end of the process, it means the appropriate minister re-visiting the very same factors that have already been taken into account, as a matter of course, by the ICO when considering the public interest in disclosing or withholding information. And the Commissioner cannot, in his own calculations of the balance of the public interest, apply any test other than that required in the Act. He can’t take into account the fact that a decision in favour of disclosure might subsequently be vetoed by ministers. That, in itself, would not only be wrong in law, but an abrogation of the responsibilities Parliament has given the Commissioner.

But it is clear that considering the same factors does not necessarily mean coming to the same conclusion. There can be different views not only as to the weight which should be attached to the relevant factors, but also as to whether those factors even favour disclosure.

A good example is the context of this case: the Cabinet’s input into the decision to invade Iraq, which has attracted significant scrutiny and comment. The Attorney General considers that this makes the case ‘precisely one where the benefits of Cabinet confidentiality can be most valuable’, but from our point of view the continuing debate means the case is also one where the public interest in the disclosure of the official record of what took place is particularly great.

The ICO consideration as to where the balance of the public interest lay in this case was further influenced by the length of time that had elapsed since the meeting in question. The request was for minutes from 2003, recording the meetings of former ministers of a political party no longer in power (indeed, the reason the decision to issue a veto falls to the Attorney General is because the case involved the papers of a previous government).

It is important that the Cabinet has room to do its job, and our assessments take that into consideration – indeed, many of our decisions have agreed that Cabinet minutes should remain confidential. But if the veto continues to be routinely exercised whenever the ICO does order the disclosure of Cabinet minutes, particularly when significant time has passed since the decision was made, then it is hard to imagine how freedom of information can ever be used to secure the release of even the most significant proceedings of the Cabinet. And that would be thoroughly unsatisfactory - but, to quote Sellar and Yeatman, ‘exceptionally inevitable’ unless Parliament does something about it.

Because what’s really unsatisfactory is the knowledge that we are condemned to re-run expensive enquiries, reviews, investigations and appeals such as those involved in the Iraq Cabinet minutes saga for as long as the Act and its application are inconsistent with each other.

 

Christopher Graham
Information Commissioner
3 September 2012

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