Line to take - LTT110 - Drafts of documents where final versions are complete

• FOI/EIR: EIR
• Section/Regulation: reg 12(4)(d)
• Issue: Drafts of documents are unfinished documents, even where final versions are complete
• Source: Information Tribunal
• Details: DfT / ICO (5 May 2009)
• Related Lines to Take: LTT129
• Related Documents: EA/2008/0052 (DfT)
• Contact: LB/GF
• Date: 28/09/2010
• Policy Reference: LTT110
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Drafts are unfinished documents, they remain unfinished even upon completion of a final version. Therefore, requests for drafts will engage the exception regulation 12(4)(d) (although the public interest test required by regulation 12(1)(b) still needs to be considered).

In considering the public interest test, the Commissioners position is that once a final version of a document has been completed. it is likely that the public interest in maintaining the exception will diminish (although not disappear entirely).

Further Information

Regulation 12(4) provides:

“For the purposes of paragraph (1 )(a), a public authority may refuse to disclose information to the extent that—

(d) the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data”

The Commissioner's position that drafts are unfinished documents for the purposes of regulation 12(4)(d), and remain unfinished even upon completion of a final version, is guided by the Tribunal's decision in DfT v ICO (EA/2008/0052) (also known as the Eddington decision). The Tribunal disagreed with the position originally taken by the Commissioner in the related decision notice (FER0156849). In this case, the applicant had requested a draft of a report prepared by an independent advisor to government, Sir Rod Eddington. At the time the request was made, the final version of the report had been published.

The decision notice had originally stated that:

"...the draft report cannot be regarded as 'material in the course of completion' as the final version of the study had already been published prior to the request being made, and as such the material contained in the draft report would now be considered to be completed. Furthermore, the Commissioner does not believe that the request relates to incomplete data for the same reasons".

However, the Tribunal disagreed, accepting the appellant’s arguments (paragraphs 67-79) that "the Draft Report clearly constituted an unfinished document at the time of the request and still remains so following the publication of a final version" (paragraph 67).

The Tribunal disputed the Commissioners original position, stating that if no draft of any document could ever fall within the exception at regulation 12(4)(d), "this would be an unfortunate conclusion as it would mean that such drafts could not be subjected to the public interest balancing exercise" (paragraph 80). The Tribunal stated that "The fact that the Draft Report itself related to another document does not change that position. Its status does not change simply because a final version exists" (paragraph 81) and concluded that "the Draft Report is, by its very name and giving the words their logical meaning, an unfinished document".

The Tribunal also accepted the appellant's argument that the Commissioner erred in his reliance on regulation 14(4) in his decision notice as providing further reason for why the Draft Report could not fall within the exception at 12(4)(d). Caseworkers should note that regulation 14(4) is only relevant where another public authority is preparing the information (paragraph 73). The Commissioner will follow the decision of the Tribunal.

Public interest test

Once ascertained that a regulation 12(4)(d) is engaged, caseworkers will need to give consideration to the public interest test.

LTT129 considers safe space arguments in relation to policy formulation. The Commissioner considers there is similarly a public interest in protecting safe space (thinking space) and drafting space inherent in regulation 12(4)(d). Applying the same principles as are accepted in relation to policy development, there is a public interest in enabling officials to get on with the job in hand without having to defend a preliminary position, or comment externally on what are only drafts and may not reflect fully formulated or agreed positions.

The Commissioner considers that once a final version of a document is completed, the need for the protection of safe space in which to think and draft no longer exists.

Once the final version of a document is published, the Commissioner’s view is that generally, any prejudicial effect related to the sensitivity of the information included in a draft will be likely to reduce. This will, however, differ from case to case - a judgment will have to be made based on the content of the information and the extent to which the draft contains information or reveals position not covered in the final published version. How recent the publication of the final version of the document is and how recently the draft was produced will be other factors that will need to be taken into consideration — the more time that has passed, the more the public interest in maintaining the exception is likely to have diminished.

In considering the public interest test in the DfT case, the Tribunal gave little credence to the appellant’s point that outside experts would be deterred from making their services available to the government if draft documents were to be disclosed under FOIA, pointing out that the type of person who would carry out such policy development would have the ability to carry out the task with the pre-requisite thoroughness and robustness (paragraph 115) and would not be deterred by a fear of disclosure (paragraph 125). The Commissioner agrees with this position, but it should be noted that these points are associated with ‘chilling effect’ arguments, rather than the concept of ‘safe space’ which the Tribunal had considered them under.

There is also a public interest argument inherent in 12(4)(d) in favour of avoiding un-adopted positions being exposed to public scrutiny even after drafting is complete, so as to avoid public resources being expended in explaining or justifying draft documents or interim positions. Balanced against this of course, would be the strong counter argument that there is a public interest in exposing draft positions so that the public is given a fully informed picture of the policy making process, promoting transparency and accountability in relation to the activities of public authorities. Generally, unless a public authority can provide specific reasons why a particular un-adopted position shouldn't be exposed after publication of the final draft, we would give more weight to the counter argument.