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Government policy on transparency comes back to haunt the Cabinet Office

Jamie Potter

19 November 2013
In February 2010, the then Labour Government announced its intention to reduce the period in which Cabinet Office papers were considered confidential from 30 years to 20 years.  It therefore included an appropriate amendment to the Public Records Act 1958 in the Constitutional Reform and Governance Act 2010.  This was one of the last policies announced by the former Labour Government and perhaps one of the few to be continued by the Coalition yet the Cabinet Office has still fought tooth and nail to prevent its application to Freedom of Information ("FOIA") requests for Cabinet minutes.  The most recent setback for the Cabinet Office in that fight is the decision of the Upper Tribunal ("UT") in Cabinet Office v Information Commissioner and Gavin Aitchison [2013] UKUT 0526 (AAC).

The case in question concerned a request by a journalist for information relating to the takeover in 1988 by Nestle of Rowntree Mackintosh.  Some information was disclosed, but five documents were not and the Cabinet Office further refused to confirm or deny whether there were Cabinet Office minutes relating to the issue.  The Cabinet Office's refusal was confirmed in its internal review decision made in November 2010, some 22 years after the events in question and 9 months after the announcement of the new policy on the 20 year rule.

On 13 July 2012, before the First-tier Tribunal ("FTT") decision in the instant case, the Coalition announced it would seek to introduce the reduction of the "30-year rule" in a manageable and affordable, and therefore staggered manner, such that the new "20-year rule" would be fully in effect by 2023.  That staggered approach would, however start from 1 January 2013.

The FTT, like the Information Commissioner ordered disclosure of the five documents in dispute, and found that the Cabinet Office could not refuse to confirm or deny whether there were Cabinet papers within the scope of the request.  The FTT, like the parties, accepted that the information was in the scope of the section 35 exemptions for information relating to the formulation or development of government policy, and ministerial communications, but considered the public interest favoured disclosure.  It did so, in part, on the basis of the length of time that had passed since the events in question and the fact that the "30-year rule" was being reduced to a "20-year rule".

Before the UT, the Cabinet Office sought to argue that reliance on the Government's policy in this respect, which was not yet in force, was an error of law.  This was rejected by the UT, finding that the FTT had been perfectly entitled to take into account "the interval of over 22 years" and the "general views expressed on behalf of the government about the reduction of the 30 year rule to a 20 year rule."

The UT also rejected the Cabinet Office's argument that Cabinet minutes should be afforded some form of special status, like legally privileged information, with an effective presumption against disclosure.  In particular, the UT did not consider it appropriate to "put into the jurisprudence any sort of sliding scale of relative weights on the factors behind one of the exemptions in FOIA as compared with others."

In addition, the Cabinet Office asserted that there was no genuine public interest in disclosure behind the generic public interest in transparency.  In this respect, the Cabinet Office had sought to rely upon a press search with limited results to demonstrate a lack of evidence of public concern.  The UT agreed with the FTT that this approach was "misconceived", finding that "the public interest is a matter for the judgment of the Commissioner or a tribunal in the light of the background facts."

Finally, the UT rejected an argument that effectively amounted to an assertion that the very fact an exemption had not been upheld by the FTT demonstrated that the public interest balance had been wrongly conducted.  Indeed, rather than an ever-present "very weighty" need for a safe space for Cabinet discussions, the UT considered there could be circumstances in which disclosure would actually improve conduct, particularly where Cabinet interference would be inappropriate, for example, in relation to a quasi-judicial decision.

As a result the UT upheld the earlier decisions that the five documents should be disclosed and that the Cabinet Office should confirm whether or not it holds relevant Cabinet papers.  However, as is the nature of the FOIA regime, in respect of the Cabinet papers, the Cabinet Office could still seek to rely on other exemptions to prevent disclosure.

This decision highlights again the difficulties for public authorities resisting disclosure where significant time has passed since the creation of the documents in question, not least in light of the government's policy towards increased transparency, including its decision to reduce the 30-year rule.  It is yet to be seen whether the Cabinet Office will continue to seek to prevent the disclosure of documents, which disclosure would actually be entirely consistent with its own transparency agenda.

Jamie Potter

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