JusticeSupplementary submission to the Commons Justice Committee by Prof Robert Hazell, the Constitution Unit, School of Public Policy, UCL June 2012

FREEDOM OF INFORMATION AND CABINET PAPERS

1. This is a brief and late submission about the need for a specific exemption for Cabinet papers. It is generally agreed that Ministers do need a safe space in which they can discuss, disagree and deliberate in private. The Information Commissioner and Tribunal undermined that safe space in 2009 with their decision to order disclosure of the 2003 Cabinet minutes on the invasion of Iraq. Although disclosure was subsequently vetoed by the government, the Information Commissioner’s decision sent shock waves round Whitehall, and ministers have felt since then that nothing is safe. As one former Cabinet minister whom we interviewed said to us:

“If I were back in government and I thought that internal submissions or Cabinet papers were likely to be released then I would insist no written records were made—and that would be completely contrary to the need for proper records in government.”

2. We discussed in our oral evidence to the Committee whether there has in fact been a chilling effect. A chilling effect can take several forms, including a reduction in the frankness of official advice; erosion of a safe space for ministers to deliberate; or deterioration in the quality of the official record. Our evidence of whether or not there has been a chilling effect is set out in:

Hazell and Busfield-Birch, “Opening the Cabinet door: Freedom of Information and Policy Making” [2011] Public Law 260–283, at pp 280–282 (extract at Annex B)

Hazell, Worthy and Yong, The Impact of the FOI Act on Central Government in the UK, Palgrave 2010, at pp 161–172, 256, 262–3.

3. Those studies show that there is very little hard, first hand evidence of a chilling effect caused by FOI. But the belief persists, particularly among ministers and their close advisers, that FOI has eroded the safe space which they need to argue and deliberate with each other in private. The fear may not be wholly rational, but it needs to be addressed if ministers are to retain confidence in FOI as the general regime governing disclosure of government information. Fear of crime (again, not always rational) can be just as blighting in restricting people’s behaviour as crime itself. So it is with FOI. Ministers need reassurance that discussion in Cabinet or its committees will be protected from disclosure. I have come to the conclusion that the best way to provide that reassurance is to provide a specific exemption for Cabinet papers.

4. An alternative way to protect Cabinet papers would be through greater use of the ministerial veto. It would provide similar reassurance, if ministers decided to exercise the veto every time that a request was made for Cabinet papers. That would be one way of creating a de facto exemption for Cabinet documents. But it would be playing a cat and mouse game with requesters, and with the Information Commissioner, if that became the regular practice. The more open and honest way, if it is agreed that Cabinet papers need protection, is to create a specific exemption for them.

5. The exemption would be a class exemption, which would apply to all documents or information coming within that class. It would not be harm based; nor would it be subject to a public interest test. The main question in framing the exemption is how to define it sufficiently narrowly that it protects only the papers and deliberation of Cabinet and its Committees, without going wider or being susceptible to abuse (eg by submitting a paper to Cabinet simply to claim the exemption). These issues have been considered in Australia, Canada and Ireland, which all have a specific exemption for Cabinet papers. Details are in Annex A, with the greatest detail about Australia, because that seems the best model to follow. In Canada Cabinet papers are completely excluded from the operation of the Act, which is much too wide; and in Ireland the exemption also appears to go too wide.

6. Australia has the clearest exemption for Cabinet papers, in s 34 of their FOI Act. It has been recently reviewed, and in 2010 it was slightly tightened up. It covers:

A document submitted to Cabinet, or prepared for submission to Cabinet.

Official records of Cabinet.

Documents prepared to brief a minister for Cabinet.

Drafts of Cabinet submissions, minutes or briefing papers.

Any document whose disclosure would reveal Cabinet deliberations or decisions.

How the exemption is interpreted in practice is described in the detailed Guidance Notes issued by the Australian Information Commissioner, also reproduced in Annex A.

7. I am not suggesting that the Justice Committee should seek to draft an exemption for Cabinet papers in the UK. I have merely sought in this submission to make the case that:

Ministers clearly fee uncomfortable about the lack of protection for Cabinet papers and discussions.

The ministerial veto could be used systematically to block the release of Cabinet papers, but that would be an abuse of the veto, which should be used exceptionally, not routinely.

A better course would be to provide a specific exemption for Cabinet and Cabinet Committee papers.

The Australian FOI Act provides a working model of such an exemption.

20 June 2012

Annex A

EXEMPTION PROVISIONS FOR CABINET PAPERS IN AUSTRALIA, IRELAND AND CANADA

Australia

FOI Act 1982 (originally)

Cabinet documents

34. (1) A document is an exempt document if it is:

(a)a document that has been submitted to the Cabinet for its Consideration or is proposed by a Minister to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Cabinet;

(b)an official record of the Cabinet;

(c)a document that is a copy of, or of a part of, or contains an extract from, a document referred to in paragraph (a) or (b); or

(d)a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.

(6) A reference in this section to the Cabinet shall be read as including a reference to a committee of the Cabinet.

FOI Act as amended in 2010

Taking into account amendments up to Parliamentary Service Amendment (Parliamentary Budget Officer) Act 2011.

34 Cabinet documents

General rules:

(1)A document is an exempt document if:

(a)both of the following are satisfied:

(i)it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted;

(ii)it was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or

(b)it is an official record of the Cabinet; or

(c)it was brought into existence for the dominant purpose of briefing a Minister on a document to which paragraph (a) applies; or

(d)it is a draft of a document to which paragraph (a), (b) or (c) applies.

(2)A document is an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection (1) applies.

(3)A document is an exempt document to the extent that it contains information the disclosure of which would reveal a Cabinet deliberation or decision, unless the existence of the deliberation or decision has been officially disclosed.

Exceptions

(4)A document is not an exempt document only because it is attached to a document to which subsection (1), (2) or (3) applies.

Note: However, the attachment itself may be an exempt document.

(5)A document by which a decision of the Cabinet is officially published is not an exempt document.

(6)Information in a document to which subsection (1), (2) or (3) applies is not exempt matter because of this section if the information consists of purely factual material, unless:

(a)the disclosure of the information would reveal a Cabinet deliberation or decision; and

(b)the existence of the deliberation or decision has not been officially disclosed.

Australian Information Commissioner’s Guidance Notes

Cabinet documents (s 34)

5.48 The Cabinet exemption in s 34 of the FOI Act is designed to protect the confidentiality of the Cabinet process and to ensure that the principle of collective ministerial responsibility (fundamental to the Cabinet system) is not undermined. Like the other exemptions in Division 2 of Part IV, this exemption is not subject to the public interest test. The public interest is implicit in the purpose of the exemption itself. The 2010 amendments to the FOI Act introduced some changes to the scope of this exemption.

5.49 “Cabinet” for s 34 purposes means the Cabinet and Cabinet committees (see the definition of Cabinet in s 4(1)). It does not include informal meetings of ministers outside the Cabinet. In any case of doubt whether a body is a Cabinet committee, the Department of the Prime Minister and Cabinet should be consulted.

5.50 Agencies should note that the Cabinet Handbook requires agencies to consult the Department of the Prime Minister and Cabinet on any Cabinet-related material identified as being within the scope of an FOI request. As the custodian of Cabinet records (current and former governments), the Secretary of the Department of the Prime Minister and Cabinet is required to provide evidence in support of Cabinet-related exemptions made under the FOI Act.

Documents included in exemption

5.51 The Cabinet exemption applies to the following classes of documents:

(a)Cabinet submissions that:

(i)have been submitted to Cabinet; or

(ii)are proposed for submission to Cabinet; or

(iii)were proposed to be submitted but were in fact never submitted and were brought into existence for the dominant purpose of submission for the consideration of Cabinet (s 34(1)(a)).

(b)official records of the Cabinet (s 34(1)(b));

(c)documents prepared for the dominant purpose of briefing a minister on a Cabinet submission (s 34(1)(c)); or

(d)drafts of a Cabinet submission, official records of the Cabinet or a briefing prepared for a minister on a Cabinet submission (s 34(1)(d)).

5.52 The exemption also applies to full or partial copies of the categories of documents listed in paragraph 5.51 above as well as a document that contains an extract from those categories (s 34(2)).

5.53 Any document containing information which, if disclosed, would reveal Cabinet deliberations or a decision is exempt unless the deliberation or decision has been officially disclosed (s 34(3)). The words “officially disclosed” are not defined in the FOI Act and should be given their ordinary meaning. A key element is the official character of the disclosure. Disclosure will commonly be as a result of specific authorisation by the Cabinet itself, and may be undertaken by the Prime Minister, the Cabinet Secretary or a responsible minister. An announcement made in confidence to a limited audience is not an official disclosure for this purpose.

5.54 If a document falls within one of the categories in ss 34(1), 34(2) or 34(3) it qualifies for exemption. Agencies need not consider what harm might flow from disclosure.

Documents excluded from exemption

5.55 There are three exceptions to the general Cabinet exemption rules:

a document is not exempt merely because it is attached to a Cabinet submission, record or briefing (s 34(4));

the document by which a Cabinet decision is officially published is not itself exempt (s 34(5)); or

purely factual material in a Cabinet submission, record or briefing is not exempt unless its disclosure would reveal a Cabinet deliberation or decision and the decision has not been officially disclosed (s 34(6)).

5.56 Cabinet notebooks are expressly excluded from the operation of the FOI Act (see definition of “document” in s 4(1)).

Documents created for submission to Cabinet

5.57 To be exempt under s 34(1)(a), a document must have been created for the dominant purpose of being submitted for Cabinet’s consideration and must have actually been submitted or be proposed by a sponsoring minister to be submitted. Documents in this class may be Cabinet submissions or attachments to Cabinet submissions.

5.58 The inclusion of the “dominant purpose” test was an important change in the 2010 amendments to the FOI Act. Section 34(4) introduces a limit on the Cabinet exemption by making it clear that a document is not exempt only because it is attached to a Cabinet submission. For example, if, at the time a report is brought into existence there was no purpose of submitting it to Cabinet, but it is later decided to submit it to Cabinet,the report will not be covered by s 34(1)(a) because it will not have been brought into existence for the dominant purpose of submission to the Cabinet. It may, however, still be exempt under s 34(3) if its disclosure would reveal an unpublished Cabinet deliberation or decision.

5.59 The use of the word “consideration” rather than “deliberation” indicates that the Cabinet exemption extends to a document prepared simply to inform Cabinet, the contents of which are intended merely to be noted by Cabinet.

5.60 Whether a document has been prepared for the dominant purpose of submission to Cabinet is a question of fact. The relevant time for determining the purpose is the time the document was created.

Official record of the Cabinet

5.61 The term “official record of the Cabinet” in s 34(1)(b) is not defined. The document must be an official record of the Cabinet itself, such as a Cabinet Minute. A document must relate, tell or set down matters concerning Cabinet and its functions in a form that is meant to preserve that relating, telling or setting down for an appreciable time. Agencies should consult the FOI Coordinator of the Department of the Prime Minister and Cabinet when deciding whether a document is an official record of the Cabinet (see paragraph 5.50).

Cabinet briefings

5.62 A document that is brought into existence for the dominant purpose of briefing a minister on a submission to Cabinet within the meaning of s 34(1)(a) is an exempt document (s 34(1)(c)). The briefing purpose must have been the dominant purpose at the time of the document’s creation.

Draft Cabinet documents

5.63 Section 34(1)(d) provides that a draft of a Cabinet submission, an official record of the Cabinet or a Cabinet briefing is exempt. “Draft” is not defined.

Copies and extracts

5.64 A document is exempt from disclosure to the extent that it contains a copy or part of or an extract of a document that is, itself, exempt from disclosure for one of the reasons specified in s 34(1) (see s 34(2)). In practice, this means a document that comprises or contains a copy of, part of or an extract from a Cabinet submission, a Cabinet briefing or an official record of the Cabinet. A copy or extract should be a quotation from, or exact reproduction of, the Cabinet submission, official record of the Cabinet or the Cabinet briefing.

5.65 It is important to note that coordination comments merit special attention. Normal practice is that such comments are drafted separately from the submission to which they relate by the agencies making the comments. Agencies’ coordination comments are then incorporated into the submission which is submitted to Cabinet for consideration. The AAT has held that a document comprising a copy of coordination comments which were later incorporated into a Cabinet submission was exempt under the previous version of s 34(2) on the basis that it was an extract from the minister’s Cabinet submission.

Documents disclosing a deliberation or decision of Cabinet

5.66 Section 34(3) exempts documents to the extent that their disclosure would reveal any deliberation or decision of the Cabinet unless the existence of the deliberation or decision has been officially disclosed.

5.67 “Deliberation”in this context has been interpreted as active debate in Cabinet, or its weighing up of alternatives, with a view to reaching a decision on a matter (but not necessarily arriving at one). In Re Toomer, Deputy President Forgie analysed earlier consideration of “deliberation” and concluded:

Taking its [Cabinet’s] deliberations first, this means that information that is in documentary form and that discloses that Cabinet has considered or discussed a matter, exchanged information about a matter or discussed strategies. In short, its deliberations are its thinking processes, be they directed to gathering information, analysing information or discussing strategies. They remain its deliberations whether or not a decision is reached. [Cabinet’s] decisions are its conclusions as to the courses of action that it adopts be they conclusions as to its final strategy on a matter or its conclusions as to the manner in which a matter is to proceed.

Purely factual material

5.68 Section 34(6) provides that, in a document to which ss 34(1), 34(2) or 34(3) applies, information is not exempt if it is purely factual material unless:

(a)the disclosure of the information would reveal any deliberation or decision of the Cabinet, and

(b)the fact of that deliberation or decision has not been officially disclosed.

5.69 Purely factual material includes material such as statistical data, surveys and factual studies. A conclusion involving opinion or judgement is not purely factual material. For example, a projection or prediction of a future event would not usually be considered purely factual.

5.70 The qualification to the “purely factual material” exception to the exemption has changed from “officially published” to “officially disclosed”. The AAT in Re Toomer considered the meaning of “officially published” in the context of the exclusion of documents by which a Cabinet decision was officially published. The AAT did not specifically consider the term in the context of the predecessor of the factual material exception in s 34(6), but it is clear that the AAT contemplated publication through a document. The Information Commissioner takes the view that the change in wording from “officially published” to “officially disclosed” reflects an intention to broaden the concept of publication to include officially sanctioned disclosure by means other than a formal document—for example, by an oral statement from a minister. It is still a requirement, however, that the disclosure results from the performance of one of the functions of the person or body responsible for disclosing it (such as the Cabinet or the responsible minister) and makes the decision generally known. An agency should consult the Department of the Prime Minister and Cabinet before releasing any Cabinet-related document (see paragraph 5.50).

Cabinet records in Ireland

The definition of record is given as:

Section 2: “record” includes any memorandum, book, plan, map, drawing, diagram, pictorial or graphic work or other document, any photograph, film or recording (whether of sound or images or both), any form in which data (within the meaning of the Data Protection Act, 1988) are held, any other form (including machine-readable form) or thing in which information is held or stored manually, mechanically or electronically and anything that is a part or a copy, in any form, of any of the foregoing or is a combination of two or more of the foregoingand a copy, in any form, of a record shall be deemed, for the purposes of this Act, to have been created at the same time as the record.

The exemption covering cabinet discussions, is “Meetings of the government”, where records are frequently referred to:

Section 19.(1) A head shall refuse to grant a request under section 7 if the record concerned:

(a)has been, or is proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General and was created for that purpose,

(aa)consists of a communication:

(i)between two or more members of the Government relating to a matter that is under consideration by the Government or is proposed to be submitted to the Government; or

(ii)between two or more such members who form, or form part of, a group of such members to which a matter has been referred by the Government for consideration by the group and the communication relates to that matter:

(b)is a record of the Government other than a record by which a decision of the Government is published to the general public by or on behalf of the Government; or

(c)contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary to the Government or the Assistant Secretary to the Government for use by him or her primarily for the purpose of the transaction of any business of the Government at a meeting of the Government.

(2) A head shall refuse to grant a request under section 7 if the record concerned:

(a)contains the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement; and

(b)is not a record by which a decision of the Government is published to the general public by or on behalf of the Government.

(3) Subject to the provisions of this Act, subsection (1) does not apply to a record referred to in that subsection:

(a)if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public;

(b)if the record relates to a decision of the Government that was made more than 10 years before the receipt by the head concerned of the request under section 7 concerned; or

(c)if the record relates to a communication to which subsection (1)(aa) applies and the communication was made more than 10 years before the receipt by the head concerned of the request under section 7 concerned.

(4) The Secretary General to the Government shall, in each year after the year 2003, furnish to the Commissioner a report in writing specifying the number of certificates issued by him or her in the preceding year under paragraph (b) of the definition of “Government” in subsection (6).

(5) Where a request under section 7 relates to a record to which subsection (1) applies, or would, if the record existed, apply, and the head concerned is satisfied that the disclosure of the existence or non-existence of the record would be contrary to the public interest, he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.

(6) In this section: “decision of the Government” includes the noting or approving by the Government of a record submitted to them; “record” includes a preliminary or other draft of the whole or part of the material contained in the record.

“Government” (except in paragraphs (a) and (b)) includes:

(a)a committee of the Government, that is to say, a committee appointed by the Government whose membership consists of:

(i)members of the Government; or

(ii)one or more members of the Government together with either or both of the following:

(I)one or more Ministers of State;

(II)the Attorney General; and

(b)a committee of officials:

(i)that is appointed by the Government for the purpose of assisting the Government in relation to a particular matter that has been submitted to the Government for their consideration;

(ii)that is requested by the Government to report directly to them in relation to the matter; and

(iii)in relation to which the Secretary General to the Government certifies in writing at the time of its appointment that it is a committee of officials falling within this paragraph;”officials” means two or more of the following persons:

(a)a person holding a position in the Civil Service of the Government or the Civil Service of the State;

(b)a special advisor within the meaning of section 19 of the Ethics in Public Office Act 1995;

(c)a person who is a member of any of such other (if any) classes of person as may be prescribed.

Cabinet records in Canada

Section 3: “record” means any documentary material, regardless of medium or form; Cabinet records are excluded from the Access to Information Act 1982.

Confidences of the Queen’s Privy Council for Canada

Section 69. (1) This Act does not apply to confidences of the Queen’s Privy Council for Canada, including, without restricting the generality of the foregoing:

(a)memoranda the purpose of which is to present proposals or recommendations to Council;

(b)discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;

(c)agenda of Council or records recording deliberations or decisions of Council;

(d)records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;

(e)records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d);

(f)draft legislation; and

(g)records that contain information about the contents of any record within a class of records referred to in paragraphs (a) to (f).

Definition of “Council”

(2) For the purposes of subsection (1), “Council” means the Queen’s Privy Council for Canada, committees of the Queen’s Privy Council for Canada, Cabinet and committees of Cabinet.

Marginal note: Exception

(3) Subsection (1) does not apply to:

(a)confidences of the Queen’s Privy Council for Canada that have been in existence for more than twenty years; or

(b)discussion papers described in paragraph (1)(b)

(i)if the decisions to which the discussion papers relate have been made public, or

(ii)where the decisions have not been made public, if four years have passed since the decisions were made.

Annex B

EXTRACT FROM HAZELL AND BUSFIELD-BIRCH “OPENING THE CABINET DOOR: FREEDOM OF INFORMATION AND GOVERNMENT POLICY MAKING” [2011] PUBLIC LAW 260–282

Impact of FOI on Advice and Deliberation: the “Chilling Effect”

The final section of this article examines the vexed question of whether FOI has led to a deterioration in the quality of official advice or ministerial deliberation, because of fears that the records might subsequently be disclosed. In all countries which have introduced FOI such fears have been widely expressed, but firm evidence is hard to come by. An early study of FOI in Australia, Canada and New Zealand certainly reported concerns that the quality of submissions to Ministers had suffered, but warned that “it is impossible to find any evidence to substantiate them”.1 A later official review in Canada did not mention a chilling effect: but this might be because policy advice in Canada is so well protected.2 White’s recent study of New Zealand reported widespread acceptance of a chilling effect, but gave few concrete examples.3 And it was because of fears about a chilling effect that the Irish government amended their FOI Act in 2003 to provide stronger protection for Cabinet papers.4

What is meant by the “chilling effect”?

There can be no doubt about the widespread fears of a chilling effect, but there is a serious lack of hard evidence. Two recent studies in the UK have sought to fill this gap by interviewing some 80 officials and ministers and systematically asking them for such evidence.5 They began by defining more precisely what is meant by a chilling effect, and came up with four different components:

A reduction in the candour and frankness of official advice.

An erosion of a “safe space” for ministers to deliberate, argue and disagree with each other in private.

Deterioration in the quality of the official record.

A reduction in the willingness of third parties to supply information to government if it is liable to be disclosed.

These components are interlinked. Underlying them is a fear that if there is a reduction in the quality of advice and information going to ministers, there may be a corresponding reduction in the quality of ministers’ decisions, because they will be based on inadequate information.

Evidence of a chilling effect

In the UK as elsewhere there is a widespread belief that FOI potentially has a chilling effect. In evidence to the Information Tribunal the former Cabinet Secretary Lord Turnbull said that disclosure of DFES board minutes would represent a “major perceived threat to the role and integrity of the Civil Service which would significantly alter the way in which the executive conducted its business. Disclosure of minutes of bodies as close to ministers … had not been foreseen and would strike at the heart of civil service confidentiality.”6

Similar views were expressed in interviews by officials and by ministers. But so far neither officials nor ministers have witnessed any decline in the substantive quality of official advice. Not one of the 80 interviewees admitted to that, although an official acknowledged a change in the way advice is sometimes couched:

The FOI won’t change the way I behave very much. I think I am a bit more careful about the way I record things. But it’s more a tactical response than a substantive one. I would certainly seek to avoid language which if it were revealed might cause offence. And I’d cut out the casual asides. But it doesn’t change the way I would substantively work with Ministers.7

A small number of officials also acknowledged a deterioration in the quality of the official record:

I am afraid I am very negative about the FOI. It is used a lot in my area by pressure groups who are opposed to what we are seeking to do. There are a lot of “fishing trips”, trying to get information which they can use in public, or even in the courts, to undermine our policy. And they will use any information received very selectively …

I’ve told my team to make sure in future we minimise what we write down and minimise what we keep …8

And there was strong evidence that ministers were particularly concerned about the damaging effects of disclosing Cabinet records:

I am not in favour of releasing Cabinet documents under FOI. I just don’t think anyone would put anything in writing if that were to happen. If I were back in government and I thought that internal submissions or Cabinet papers were likely to be released then I would insist no written records were made—and that would be completely contrary to the need for proper records in government.9

Is the chilling effect caused by FOI?

But despite the strength of these feelings, there was very little hard evidence from the interviews of changes in behaviour. The official who sought to minimise the official record was an exception; the large majority of officials interviewed noted no substantive change in their own or other civil servants’ behaviour as a result of FOI. But there was a more diffuse feeling of changes in working practices, which tend to be associated with FOI. When searching for evidence of FOI being the cause, a wide range of other possible factors emerged which might also cause a chilling effect or reduce the official record:

Fear of leaks: agreed by several interviewees to be a more important deterrent than the likelihood of FOI.

The risk of judicial review, Ombudsman investigation, or public inquiry.

Pressures of time and fewer resources leading people to cut corners.

Changes in ministerial behaviour (sofa government).

Changes in technology (email instead of formal correspondence).

Declining standards and of learned behaviour (the near collapse of departmental registries and filing systems; senior people coming into Whitehall from business backgrounds, with no experience of civil service standards of record-keeping).

Most officials acknowledged that FOI was at most one additional factor, reinforcing existing trends. Two final quotes can help to summarise the extent to which FOI has a chilling effect. The first emphasises the wider changes in working practices:

FOI reinforces a trend that was there already … So FOI is just another weight in the scale, if you like, making people be more cautious about what they commit to paper or even more to the computer.10

The second emphasises the organisational imperative for proper record keeping in a large bureaucracy. For government to work properly civil servants:

need to have stuff on files because they need (a) to protect themselves, to record things (b) to communicate with people … and (c) if they are going to hand over the file they need to have sufficient in the file. So life has to go on, and proper procedures …11

FOI is the latest in a series of changes which cumulatively have had a major effect in the way the civil service works, and records its work. As the latest change, it tends sometimes to be the whipping boy for those who deplore these wider changes; but there is very little hard evidence that FOI alone is responsible for a chilling effect. It is one amongst half a dozen factors which have led to major changes in working practices in Whitehall, and a consequential decline in record keeping.

Conclusion: How open is the UK compared with other countries?

In conclusion we return to the comparative analysis with which this article began, to ask how much policy information and advice is disclosable in the UK compared with other countries. In evidence to the Commons Justice Committee in 2010 Jack Straw maintained that the UK had “the most stringent and powerful Freedom of Information provisions of almost any jurisdiction in the world”.12 He was doing so in the context of defending his use of the ministerial veto, and he went on to say that the government would not have accepted the changes to strengthen the FOI Act during its parliamentary passage if the ministerial veto had not been there as a counter balance.

How justifiable is Straw’s claim, and is it undermined by his use of the veto? The first thing to say about the veto is that its use in the UK has been modest by international standards. Australia, New Zealand and Ireland also provide for a ministerial veto in their FOI legislation, but they have used it a lot more frequently, especially in the early years. In the first five years of operation of the FOI Act in the UK the veto had been used only twice. Ireland also used the veto only twice in the first five years. But in the same period the veto was used 14 times in New Zealand, and 48 times in Australia.13 So British use of the veto has been relatively restrained.

Second, the close comparison in this article of the exemption provisions for policy deliberation and advice, and their interpretation in the case law, again shows the UK coming off quite favourably. The UK Act is certainly less restrictive in relation to Cabinet papers than those regimes which have a specific exemption for Cabinet records. Canada is the most restrictive; but Australia and Ireland are also more restrictive than the UK, in having a mandatory exemption for Cabinet records, and giving such records a wide definition (although in Australia that is about to change). Jack Straw was not talking comparatively when he mentioned that the agenda of a Cabinet Committee has been disclosed in the UK, as well as a lot of inter-ministerial correspondence.14 But he could have added that a Cabinet Committee agenda could not have been disclosed in Australia, Canada or Ireland; and inter-ministerial correspondence could not be disclosed if it might reveal any deliberation of Cabinet or Cabinet Committee. A lot of inter-ministerial correspondence is sent round Cabinet Committee circulation lists, and so would not be disclosed in the other countries, but is disclosable in the UK.

The third and final point to make is about the operation of the exemptions for the formulation of government policy and the free and frank provision of advice. In the UK s.35 and s.36 are both subject to a public interest test, and our analysis of the case law shows that the Information Commissioner has repeatedly used the public interest test as a powerful lever to order disclosure. There have been 150 such cases which applied to central government in the first five years, and in around 60% of them the Commissioner has held that on balance the public interest in disclosure outweighed the arguments for withholding. That has sent very powerful signals round Whitehall.

It is never easy to draw precise comparisons about the application of slightly different legal provisions, but the evidence presented in this article suggests that by comparison with Australia, Canada and Ireland the UK is a lot more open in requiring disclosure of policy advice and deliberation. Recent and high level papers, including ministerial advice and correspondence have been ordered to be disclosed. Of the five countries considered here, only New Zealand has a more open regime. For the UK to rank second in a league table of five is not a bad record only five years after entering the game.

1 R Hazell, “Freedom of Information in Australia, Canada and New Zealand”(1989) 67 Public Administration 189, at p.204.

2 Access to Information: Making it work for Canadians, June 2002, Ch.4.

3 N White, Free and Frank: Institute of Policy Studies, Victoria University of Wellington (2007), p.231.

4 Report of High Level Review Group on FOI Act 1997, June 2002 at paras 2.2 and 3; Minister of Finance press release on publication of FOI (Amendment) Bill on 28 February 2003.

5 R Hazell, B Worthy and M Glover The Impact of Freedom of Information on central government in the UK: Does FOI Work? Palgrave Macmillan, 2010: Ch.11. P Waller, R Morris, D Simpson and R Hazell, Understanding the Formulation and Development of Government Policy in the Context of FOI. London: Constitution Unit, 2009 Ch.7.

6 DFES v Information Commissioner and Evening Standard, EA 2006/0006, 19 February 2007 para.27.

7 P Waller, R Morris, D Simpson and R Hazell, Understanding the Formulation and Development of Government Policy in the Context of FOI. Constitution Unit, 2009, para.7.20.

8 P Waller, R Morris, D Simpson and R Hazell, Understanding the Formulation and Development of Government Policy in the Context of FOI. Constitution Unit, 2009, para.7.18.

9 P Waller, R Morris, D Simpson and R Hazell, Understanding the Formulation and Development of Government Policy in the Context of FOI. Constitution Unit, 2009, para.7.24.

10 R Hazell, B Worthy and M Glover Does Freedom of Information Work? The Impact of FOI on central government in the UK. Palgrave Macmillan, 2010: chap 11.

11 R Hazell, B Worthy and M Glover Does Freedom of Information Work? The Impact of FOI on central government in the UK. Palgrave Macmillan, 2010: chap 11

12 Commons Justice Select Committee, 10 March 2010, Q 94.

13 R Hazell and B Worthy, “Assessing the Performance of Freedom of Information”, Government Information Quarterly (forthcoming).

14 Commons Justice Select Committee, 10 March 2010, Q 99.

Prepared 25th July 2012