Winning the Public Interest Argument

The aim of this page is to help people making FOI requests to persuade FOI Officers and/or the ICO performing the Public Interest Test that the public interest lies in favour of disclosure.

This page will list examples of arguments that can be used especially focussing on ones that have already been used successfully to get information released.

Extract from the Act

FOIA requires that:

“... a public authority shall have regard to the public interest – (a) in allowing public access to information held by the authority, and (b) in the publication of reasons for decision held by the authority.”

General factors in favour of disclosure from the Information Commissioner

Commissioner lists the following public interest factors that would encourage the disclosure of information but recognises that it is "not exhaustive and there may be other factors which should be taken into account depending upon the request for information"

• furthering the understanding of and participation in the public debate of issues of the day. This factor would come into play if disclosure would allow a more informed debate of issues under consideration by the Government or a local authority.
• promoting accountability and transparency by public authorities for decisions taken by them. Placing an obligation on authorities and officials to provide reasoned explanations for decisions made will improve the quality of decisions and administration.
• promoting accountability and transparency in the spending of public money. The public interest is likely to be served, for instance in the context of private sector delivery of public services, if the disclosure of information ensures greater competition and better value for money that is public. Disclosure of information as to gifts and expenses may also assure the public of the personal probity of elected leaders and officials.
• allowing individuals and companies to understand decisions made by public authorities affecting their lives and, in some cases, assisting individuals in challenging those decisions.
• bringing to light information affecting public health and public safety. The prompt disclosure of information by scientific and other experts may contribute not only to the prevention of accidents or outbreaks of disease but may also increase public confidence in official scientific advice.

Other factors listed in the old MoJ guidance

• Open policy making may lead to increased trust and engagement between citizens and government.
• The desirability of citizens being confident that decisions are taken on the basis of the best available information.
• Knowledge that the arguments relating to a debate will be disclosable will in fact improve the quality of those arguments. Far from inhibiting the frank provision of advice, there might be circumstances where the prospect of disclosure would enhance the quality of advice.
• The response to new policy initiatives may improve, and government generally may become 'better'.
• More open policy making can result in better policy formulation. A wider range of views and opinions, including expert knowledge, may be canvassed.
• As knowledge of the way government works increases, public contribution to the policy making process could become more

effective and broadly-based.

• The public interest in knowing that ministers are adhering to the Code which regulates their conduct.
• The information would expose wrongdoing on the part of government.
• The information would demonstrate that wrongdoing had been effectively dealt with.
• The substance of the information may relate closely to a matter of public importance about which public debate could be informed by its disclosure

Cabinet Minutes of Iraq War Decision

"In contrast to the factors put forward by the Cabinet Office the Commissioner considers several public interest factors to favour disclosure. Though intermixed, they can be summarised in the following terms:

• The gravity and controversial nature of the subject matter
• Accountability for government decisions
• Transparency of decision making
• Public participation in government decisions"

Fairness

"The public interest should normally be treated as distinct from matters of purely private or personal interest. Some public interest considerations may however apply for the benefit of individuals, for example: - ... the public interest in individuals receiving fair treatment, in accordance with the law, in their dealings with public services." Public Interest Test Process

Health

"it is important that, as far as is possible, the public has confidence in the way that resources are assessed and allocated. In particular, it is important that they are confident that NICE has made decisions in accordance with its published procedures. Where difficult recommendations have been made it is essential that the public is confident that decisions have been made on the basis of the best evidence available." FS50082569

Justice

"There is a competing general public interest in disclosure which is strengthened by the more specific public interest in “open justice” so that the details of cases brought before courts and tribunals should normally be in the public domain unless there is good reason for confidentiality." FS50080369

Planning

"The fact that the Secretary of State’s decision represents the final stage (subject to appeal to the courts or judicial review) seems to us, if anything, to increase the desirability of full disclosure, rather than to decrease it."[1]

"we consider that full disclosure of the deliberations underlying a decision on a complex matter is arguably more important than in the case of a simple one, where the issues may be more immediately evident." [2]

Privacy

"The public interest should normally be treated as distinct from matters of purely private or personal interest. Some public interest considerations may however apply for the benefit of individuals, for example: - • the public interest in public services respecting privacy principles in their handling of information about the private affairs of citizens; ..." Public Interest Test Process, which appears to have been influence by Information Commissioner (Queensland)- Public Interest Balancing Tests in the Freedom of Information Act

Stopping Spin

In Lord Baker v the Commissioner and the Dept for Communities and Local Government (EA/2006/0043) the Tribunal commented that transparent provision of the full information behind a decision removes any suspicion of ‘spin’ and therefore promotes confidence in public authorities: ‘by making the whole picture available, it should enable the public to satisfy itself that it need have no concerns on the point’.[EA/2006/0043]