Government loses 'pollutant of publicity' FOI case

Chimney spewing out smoke Image copyright Istock

The Cabinet Office has lost a tribunal case where it argued that publicly revealing how often a cabinet committee meets would harm the workings of government by introducing the "pollutant of publicity".

Last week the Information Rights Tribunal rejected the government appeal, in a strongly worded judgment which described the Cabinet Office's approach as "irresponsible", its key witness as "evasive and disingenuous", and her evidence as "of no value whatsoever".

The long-running freedom-of-information dispute focuses on the Reducing Regulation Committee (RRC), a cabinet sub-committee set up in July 2010 to oversee regulatory reform and the drive to scrap unnecessary bureaucratic "red tape". Many important ministerial decisions are taken through the cabinet committee system.

The case stems from a BBC FOI request made over three years ago in August 2012, asking how many times this committee had met. The Cabinet Office refused to say, on the grounds that doing so would undermine collective responsibility and expose ministers to the pressure of public opinion on whether the frequency of meetings was adequate.

'Pollutant'

The term "pollutant of publicity" was deployed at the tribunal by the government's lawyer, James Eadie QC, who as First Treasury Counsel or "Treasury Devil" is the barrister picked to fight the government's most important cases.

The tribunal dismissed his argument, saying it could see no evidence of a "pollutant" effect likely to distort the actions of ministers. But it reserved its most forceful language for the Cabinet Office's main witness.

The Cabinet Office put forward one of its senior officials, Helen MacNamara, director of the Economic and Domestic Affairs Secretariat. She maintained that ministers would change their behaviour if the frequency of cabinet committee meetings became public.

She also argued "the information is more likely to mislead than inform" and that there was already enough material publicly available on the work of the RRC.

However, the tribunal clearly did not find her a persuasive witness.

'Incredulous'

She refused to say what discussions, if any, she had had about this with ministers, and the tribunal judgment accuses her of being "evasive and disingenuous on the issues she purported to have considered".

On another part of her testimony the tribunal says it is "incredulous" that she was "offering this evidence if she does not know the relevance of it". At a further point it states she "yet again failed to support this assertion with any tangible evidence".

It concluded that her evidence was "fundamentally flawed and of no value whatsoever to us" on the central issue of the case.

The tribunal also describes the Cabinet Office as "irresponsible" in expecting Ms MacNamara's evidence to count as support for the proposition that disclosing the number of RRC meetings would cause harm. It concluded that the Cabinet Office case was "materially flawed" and "unpersuasive".

'Fighting politicos'

The tribunal argued that "we find it hard to accept or believe that hard bitten, street-wise, fighting politicos would scurry about trying to fill a mental quota of meetings simply because this release had taken place."

It therefore dismissed the government's position that "the figure is too sensitive to be released".

In doing so it upheld the earlier finding of the Information Commissioner, who ruled in May 2013 that it was in the public interest to reveal the frequency of RRC meetings. The commissioner said it would help public understanding of the committee's work.

The case has taken over three years since the BBC's initial FOI request because it has passed through an extensive and convoluted series of legal stages. After the Information Commissioner decided the figure should be released, the government appealed to the tribunal for the first time which backed the commissioner.

The Cabinet Office then took the case on some issues of legal procedure to the Upper Tribunal, bringing in its top litigator, the Treasury Devil, Mr Eadie. This was regarded within legal circles as a sign of the importance that the government attached to the dispute.

The government won its Upper Tribunal hearing on a procedural point, with the result that the case then had to be considered again by the lower tier of the tribunal, leading to the judgment issued last week.

Proclaimed

A Cabinet Office spokesperson said: "We are disappointed with this judgment and are considering next steps, including appealing".

As it happens it is known that the RRC met at least once, since its initial meeting in July 2010 was actually proclaimed in a government press release at the time.

The future of FOI policy is currently being considered by a government-appointed commission. In its call for evidence, the commission raised the idea that all material relating to ministerial communications and policy formulation might be made absolutely exempt from FOI.

If such a change came into force, it would mean that the government could reject future FOI requests for how often cabinet committees meet, without any possibility that it could be overruled by the Information Commissioner or the tribunal.

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