Line to take - LTT42 - No inherent public interest in s35

• FOI/EIR: FOI
• Section/Regulation: s2, s35
• Issue: No inherent public interest in s35
• Source: Information Tribunal
• Details: DfES I The Evening Standard (19 February 2007); DWP / Oaten (05 March 2007); OGC / Oaten (11 April 2008); Scotland Office (08 August 2008); Scotland Office (05 August 2008)
• Related Lines to Take: LTT15, LTT43, LTT46, LTT127, LTT129, LTT132
• Related Documents: EA/2006/0006 (DfES), EA/2006/0040 (DWP), FS5075489 (DfES), [2008] EWHC 737 (admin) (OGC), EA/2007/0070 (Scotland Office), EA/2007/0128 (Scotland Office)
• Contact: RM / LA
• Date: 07/11/2008
• Policy Reference: LTT42
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

There is no inherent public interest in withholding information that falls within the type of information covered by a class based, qualified, exemption.

Further Information

DFES Case and s35(1)(a)

In DfES v the Commissioner& the Evening Standard the Tribunal had established that the minutes of a series of meetings did fall within the class of information described by s35(1)(a) — formulation & development of government policy. The Tribunal then addressed what is the correct approach when considering a class of documents to which Parliament has applied a qualified exemption (para’s 60 — 66).

In broad terms the DfES argued that in creating class based exemptions parliament had accepted that “any disclosure of information within this class caused some damage...to the public interest”. (para 45)

This was rejected by the Tribunal which found that there was no inherent damage caused by disclosing information covered by such a class based exemption, i.e. there is no inherent public interest in withholding the information.

“...inclusion within such a class of information simply indicates the need and right of the public authority to examine the question of the balance of public interests when a request... is received.” - Tribunal at para 63.

“The weighing [of the public interest] exercise begins with both pans empty and therefore level.” - Tribunal at para 65.

If, after the weighing exercise is complete, the scales are still level the public authority must disclose. “Such an equilibrium may not be a purely theoretical result: there may be many cases where the apparent interests in disclosure and maintaining the exemption are equally slight.” - Tribunal at para 64.

This approach means that even if there is only slight public interest in disclosure, this may still be sufficient for the Tribunal and the Commissioner to order disclosure. Indeed in this particular case the Tribunal commented, at para 87, that the information was “... unlikely to prove of major importance to any public debate on the issue”.

It is noted that the Tribunal had already accepted that the wording of s35 had the potential to capture a large amount of information and so it seemed perverse to the Tribunal that such a potentially large amount of information could be considered inherently harmful to disclose.

The Tribunal’s language when considering this matter suggests this approach to weighing up the public interest test would apply to all class based, qualified, exemptions. However in practice this approach will be most relevant to s35.

In DWP v the Commissioner which also related to the application of s 35(1)(a) the DWP ran a similar argument to that of the DIES. It contended that s35 was comparable to s 42 — LPP (para 60), i.e. that s35(1)(a) “was an exemption of particular importance...[and that] greater weight should be attached to the public interests in favour of maintaining the exemption in order to protect Government space for deliberation on policy”. The Tribunal rejected this comparison.

High Court ruling

The High Court has also considered this issue and endorsed the above approach in the case of OGC v The In formation Commissioner.

It commented at para 79 that “I do not think that section 35 creates a presumption of a public interest in non-disclosure. It is true that section 2 refers to “the public interest in maintaining the exemption”, which suggests that there is a public interest in retaining the confidentiality of all information within the scope of the exemption. However, section 35 is in very wide terms, and interpreted literally it covers information that cannot possibly be confidential. For example, a report of the Law Commission being considered by the Government with a view to deciding whether to implement its proposals would be or include information relating to “the formulation or development of government policy”, yet there could be no public interest in its non-disclosure. It would therefore be unreasonable to attribute to Parliament an intention to create a presumption of a public interest against disclosure. I therefore agree with the view expressed by the Information Tribunal in The Department for Education and Skills v the Information Commissioner and the Evening Standard’

Scotland Office cases and s35(1)(b)

In Scotland Office v The Information Commissioner (EA/2007/0070) the Tribunal applied the same principle in relation to s35(1)(b). It commented (at paragraphs 85 & 86) that “To the extent that the Appellant is suggesting that because of the importance of the convention [of collective Cabinet responsibility], there is some form of presumption against disclosure of such information implicit in that exemption, or that the public interest in maintaining the exemption under section 35(1)(b) is inherently weighty, we must disagree. The notion that there is a public interest against disclosure inherent in section 35(1)(a) because of the status of any such information, was rejected both in the DFES and DWP cases. It was also rejected by the High Court in OCG (which we note was not limited to section 35(1)(a)), and we see no justification for a different finding in relation to section 35(1)(b).

In Scotland Office v The Information Commissioner (EA/2007/01 28) the Tribunal similarly commented that “it is not possible to raise the exemption to a de facto absolute one simply because the information relates to, or is, ministerial communications.”

See also LTT127 scope of s35(1)(a) & (b), LTT129 safe space, and LTT132 Public interest in protecting collective Cabinet responsibility for further discussion on when the convention of collective Cabinet Responsibility will be relevant and how to approach the public interest test in this context.