Line to take - LTT130 - "Chilling effect" arguments

• FOI/EIR: FOI, EIR
• Section/Regulation: s35, s36, reg 12(4)(e)
• Issue: "Chilling effect" arguments
• Source: Information Tribunal
• Details: DfES / The Evening Standard (19 February 2007); Scotland Office (08 August 2008); FCO (22 January 2008); HMT (07 November 2007); Evans / MOD (26 October 2007); Scotland Office (05 August 2008); FOE / ECGD - IT (20 August 2007); FOE / ECGD - High Court (17 March 2008); DWP (05 March 2007); Baker / DCLG (1 June 2007); O’Brien / BERR (7 October 2008); Cabinet Office / Lamb (27 January 2009)
• Related Lines to Take: LTT43, LTT61, LTT104, LTT128, LTT129, LTT131, LTT132, LTT133
• Related Documents: EA/2006/0006 (DfES), EA/2007/0070 (Scotland Office), EA/2007/0047 (FCO), EA/2007/0001 (HMT), EA/2007/0128 (Scotland Office), EA/2006/0073 (ECGD IT), [2008] EWHC 638 (ECGD High Court), EA/2006/0040 (DWP), EA/2006/0043 (Baker), EA/2008/0011 (O’Brien), EA/2008/0024 & EA/2008/0029 (Lamb)
• Contact: LA
• Date: 03/11/2008
• Policy Reference: LTT130
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

‘Chilling effect’ arguments should not be dismissed out of hand as “ulterior considerations” but should be given appropriate weight in the Public Interest Test dependent on the circumstances of the case and the information in question.

The term ‘chilling effect’ can cover a number of related scenarios, which argue a progressively wider impact on the frankness and candour of debate. As the impact of the ‘chilling effect’ argued gets progressively wider, the Commissioner considers that it will be more difficult for convincing arguments of this nature to be sustained.

Arguments that disclosure under FOIA may equally lead to better quality advice and improved decision making, may also be relevant and should also be considered in the circumstances of the case.

Further Information

Chilling effect arguments:

‘Chilling effect’ arguments are usually made in relation to the public interest test under s35 FOIA. However (as per LTT128) they may also apply to some s36 cases and to some information falling under Regulation 12(4)(e) of the EIR. They are described in Scotland Office v the Information Commissioner (EA/2007/0070) as arguments about “the risk to candour and boldness in the giving of advice which the threat of future disclosure would cause”.

They are related to, but not the same as “safe space” arguments, and care should be taken to differentiate between these two concepts. ‘Safe space” arguments are about the need for a “safe space” to formulate policy and debate ‘live’ issues” without being hindered by external comment and/or media involvement. The Commissioner’s view is that, whilst part of the reason for needing a “safe space” is to allow free and frank debate, the need for a “safe space” exists regardless of any impact on the candour of debate of involved parties, which might result from a disclosure of information under FOIA (see also LTT129 safe space arguments). “Chilling effect arguments are directly concerned with the argued loss of frankness and candour in debate / advice which, it is said, would lead to poorer quality advice and less well formulated policy and decisions, and would result from disclosure of information under FOIA.

The guiding principle (see LTT43) most relevant to this argument is (vii) robustness of officials. The term ‘chilling effect’ can cover a number of related scenarios, which argue a progressively wider impact on frankness and candour

• In relation to s35(1)(a) - the idea that disclosing information about a given policy, whilst that policy is still in the process of being formulated and developed, will affect the frankness and candour with which relevant parties make future contributions to that particular policy debate.

• In relation to s35(1)(b) — the idea that disclosing information falling under s35(1)(b) that relates to a “live issue” will affect the frankness and candour with which Ministers continue to debate that same issue.

• In relation to s35(1)(a) - the idea that disclosing information about a given policy, whilst that policy is still in the process of being formulated and developed, will affect the frankness and candour with which relevant parties will contribute to other future, different, policy debates.

• In relation to s35(1)(b) — the idea that disclosing information falling under s35(1)(b) that relates to a “live issue” will affect the frankness and candour with which Ministers debate other, different “live issues” in the future.

• In relation to s35(1)(a) - the idea that disclosing information relating to the formulation and development of a given policy (even after the process of formulating and developing that policy is complete), will affect the frankness and candour with which relevant parties will contribute to other future, different, policy debates.

• In relation to s35(1)(b) — the idea that disclosing information falling under s35(1)(b) that relates to an issue which is no longer “live” will affect the frankness and candour with which Ministers debate other, different “live issues” in the future.

It is conceivable that similar views, arguing a progressively wider “chilling effect”, could also be presented in relation to the Public Interest Test under s35(1)(c) and (d).

The Tribunals response to such arguments

The Tribunal has generally endorsed the approach of considering such arguments in the context of the circumstances of the case, with particular reference to the potential disclosure in question.

It has also, however, consistently given less weight to such arguments than has been argued by the Public Authorities concerned and has been dismissive of the weight that should be attached to such arguments in the majority of cases it has heard so far. Comments made by various different Tribunals in this respect are provided below. It should be noted that these comments were all made in cases where the public authority was arguing a relatively wide ranging ‘chilling effect’, and maintaining that release of information relating to one issue / policy would affect the candour of debate on other, unrelated issues / policies

Department for Education and Skills v the Information Commissioner (para 75):

“[principle] (vii) In judging the likely consequences of disclosure on officials’ future conduct, we are entitled to expect of them the courage and independence that has been the hallmark of our civil services since the Northcote — Trevelyan reforms.”

Foreign and Commonwealth Office v The Information Commissioner (para 26)

“we adopt two points of general principle which were expressed in the decision in HM Treasury v the Information Commissioner EA/2007/0001. These were first, that it was the passing into the law of the FOIA that generated any chilling effect, no Civil Servant could thereafter expect that all information affecting government decision making would necessarily remain confidential … Secondly, the Tribunal could place some reliance in the courage and independence of Civil Servants, especially senior ones, in continuing to give robust and independent advice even in the face of a risk of publicity.”

Scotland Office vthe Information Commissioner EA/2007/0128 (para 71)

“We share the scepticism expressed by other Panels of this Tribunal as to the extent of the “chilling” effects predicted in relation to the impact of disclosure in relation to internal government deliberations”

Scotland Office v the Information Commissioner (EA/2007/0070) (para 89)- in relation to s35(1)(b):

“No evidence has been put before us to show that because of the potential for disclosure under FOIA, Ministers have changed the way in which they communicate, to have taken less robust positions in debate or have been less candid in expressing their views in writing. In other words, there is no evidence that the “chilling effect” feared has actually materialised. This is of course as it should be. In line with the views expressed by the Tribunal in DFES, we consider that we are entitled to expect of our Ministers, as elected politicians, a degree of robustness and for them not to shy away, in cabinet discussion, from taking positions and expressing those positions candidly, for fear that their views may, in certain circumstances, become public."

In O’Brien v the Information Commissioner and BERR, Mr Hilton, a witness for the public authority conceded in cross-examination that

“he could not identify any actual instance of a disclosure made under the freedom of information Act having affected the quality of any advice given or the way they performed their duties in general He accepted that since the freedom of information regime was obligatory disclosures made under it would not damage the necessary trust between ministers and civil servants and that there was no reason to be concerned that ministers would be led to disengage from their officials as a consequence of it. He accepted that his concerns about the risk to the quality of government decision-making resulting from cumulative disclosures under the Act were speculative” (para 35).

High Court ruling

In the Tribunal decision in Friends of the Earth v The Information Commissioner and Export Credits Guarantee Department— in relation to Regulation 12(4)(e) of the EIR- the IT had commented at paragraph 61 that:

“It is not enough in this Tribunal’s view to fall back on appeal that revelation of all information otherwise thought to be inviolate would have some sort of “chilling effect”. The Commissioner and the Tribunal have been charged with the responsibility of resolving on a case by case basis where the proper balance should be struck regardless of such ulterior considerations.”

This decision was appealed to the High Court and Mr Justice Mitting, whilst finding that the Tribunal’s overall decision had been made in accordance with the law, was critical of the Tribunals’ approach as expressed at paragraph 61. He said (para 38)

“Likewise, the reference to the principled statements of Lord Turnbull and Mr Britton as “ulterior considerations” was at least unfortunate. The considerations are not ulterior; they are at the heart of the debate which these cases raise. There is a legitimate public interest in maintaining the confidentiality of advice within and between government departments on matters that will ultimately result, or are expected ultimately to result, in a ministerial decision. The weight to be given to those considerations will vary from case to case. It is no part of my task today to attempt to identify those cases in which greater weight may be given and those in which less weight may be appropriate. But I can state with confidence that the cases in which it will not be appropriate to give any weight to those considerations will, if they exist at all, be few and far between.”

It should be noted that in this case the policy in question could arguably have been considered as still “live” as, at the date of the request, the application for the ECGD to guarantee funding for the Sakhilin LNG project (to which the information related) was still undecided.

The ICO’s current position

In accordance with the comments made in the ECGD High Court case ‘chilling effect’ arguments should not be dismissed out of hand as “ulterior considerations” but should be given appropriate weight in the Public Interest Test dependent on the circumstances of the case and the information in question. It should not be assumed that all disclosures will inevitably have the same consequences. As stated in the DfES case (para 75, principle i)) and commended as a statement of principle in the ECGD High Court case:

“The central question in every case is the content of the particular information in question. Every decision is specific to the particular facts and circumstances under consideration. Whether there may be significant indirect and wider consequences from the particular disclosure must be considered case by case.”

The Commissioner would expect public authorities to provide convincing arguments for each kind of impact being argued with reference to the particular disclosure being considered.

With regard to the narrowest impact that has been argued - the effect of disclosure of information relating to a given policy / issue, whilst that policy /issue is still “live”, on the particular policy-making process / issue in question — so far this issue has not been directly addressed by the IT, as the public authorities concerned have tended to argue a wide ranging “chilling effect”. Consequently ,in cases heard so far the Tribunal has concentrated on the effect that such a premature disclosure might have on the “safe space” required for debate, rather than specifically considering any effect on frankness and candour that might result. However, as stated above the Commissioner accepts that part of the reason for needing a “safe space” is to allow free and frank debate to take place. The Commissioner would generally give some weight to arguments that disclosing information relating to a particular policy whilst that policy is still being formulated / developed, could effect the frankness and candour with which relevant parties would continue to contribute to that particular policy making process. Likewise for information relating to Ministerial communications, requested whilst the issue which the information concerns is still a “live” issue. He considers that this approach is consistent with the Tribunal’s general acceptance of the need for a “safe space” for policy debate. How much weight should be afforded to such arguments in the Public Interest Test, and whether or not the public interest in maintaining the exemption outweighs the public interest in favour of disclosure would, of course, depend on the strength of other arguments and the individual circumstances of the case.

As the impact argued gets wider however, the Commissioner considers that it will be more difficult for convincing arguments to be sustained and this may particularly be the case for the widest ranging arguments — that disclosures relating to policies where the process of formulation or development is complete and historic issues would affect the frankness and candour of contributions to future live policies / debates.

It should be borne in mind that the Tribunal has given little weight to general arguments about wide ranging “chilling effects” that are not specifically related to the information in question. Whilst there may be cases where the Commissioner would accept that a wider “chilling effect” would occur, such arguments should not be accepted as general ‘arguments of principle’ and a public authority would need to make a convincing case as to why disclosure of the information in question would have this wider effect.

The importance of the timing of the request

In light of the progressively wider effects that may be argued, the Commissioner considers that the timing of the request will be important in relation to ‘chilling effect’ arguments (as it is in relation to ‘safe space’ arguments”). The Tribunal’s acknowledgement of the importance of the timing of the request in relation to any argued loss of frankness and candour is indicated in the IT comment in

Friends of the Earth v The information Commissioner and Export Credits Guarantee Department:

“The Tribunal is simply not willing to accept that disclosure of the 2003 inter-departmental responses in March 2005 was likely to pose a threat to the candour of further deliberations” (para 74)

This case was a Regulation 12(4)(e) EIR case and the information in question related to Government Department comments on an application to the ECGD to finance the Sakhalin II oil pipeline project.

In Cabinet Office v Lamb the Tribunal commented (at para 74) that “When considering how to behave in future Cabinet Ministers will be aware that, as a result of the decision to make this type of information the subject of a qualified, not an absolute exemption, the risk of disclosure ii appropriate circumstances has existed since January 2005. Their attitude will no doubt also be affected by the frequency with which disclosure is made and the reasons given for ordering it. Early disclosure as a mater of routine will clearly have a greater impact than if it is seen that disclosure is ordered only in cases that merit it and then only after a reasonable passage of time.”

Arguments against the ‘chilling effect’

Arguments have been made that far from producing a ‘chilling effect’ leading to poorer quality advice and decision making, knowing that advice might be subject to future disclosure under FOIA could actually lead to better quality advice being provided.

This argument was put forward by counsel for the Commissioner in The Secretary of State for Work and Pensions v The Information Commissioner at paragraph 90. “He suggested that the new law would have concentrated the mind of civil servants in a beneficial way to ensure a more rigorous approach to any analysis or predictions the safest thing for the prudent civil servant, faced with the prospect of disclosure, is to make sure that he/she does the best job and puts forward figures that can be defended , not just to the Home Office, but, if necessary, in the course of public debate... the prospect of public disclosure is actually capable of importing a greater degree of rigour into the process.” Whilst the Tribunal did not indicate what weight it had given to this argument, its decision was that the information in question should be released

In the ECGD case the Tribunal stressed that “its determination of the public interest test, relate specifically to the disclosure of the information requested by FoE” (para 75) and then went on b say (at para 76) that it “feels most strongly that disclosure of the type of information in question is, if anything, likely to improve the quality of the deliberative process” (para 76).

The Tribunal also considered this argument In Baker v the information Commissioner and the Department for Communities and Local Government which was a regulation 12(4)(e) EIR case. Here witnesses for the public authority conceded in cross-examination that following FOI training local authority employees “had become more rigorous and disciplined in recognition of the fact that what they wrote might become the subject of public scrutiny — they were more aware of the need ... to get it right”

The Commissioner view is that, in line with the approach of considering how much weight should be given to ‘chilling effect’ arguments depending on the information in question and the circumstances of the case, arguments about the prospect of disclosure leading to improved advice / debate should also be considered in this case specific way.