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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Office of Government Commerce v Information Commissioner (Rev 1)  EWHC 737 (Admin) (11 April 2008)
Cite as:  ACD 54,  EWHC 774 (Admin),  QB 98,  EWHC 737 (Admin),  3 WLR 627
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QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
| OFFICE OF GOVERNMENT COMMERCE
|- and -
|- and -
|HER MAJESTY'S ATTORNEY GENERAL on behalf of THE SPEAKER OF THE HOUSE OF COMMONS
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Timothy Pitt-Payne (instructed by the Office of the Information Commissioner) for the Respondent
Martin Chamberlain (instructed by the Treasury Solicitor) for the Intervener
Hearing dates: 3, 4, 5 March 2008
Crown Copyright ©
Stanley Burnton J :
(a) The Gateway process had delivered a public benefit, in that it had accounted for over £700 million of savings in the SRO2 period.
(b) It depends on candour and confidentiality. Senior Responsible Owners (i.e., the civil servants with responsibility for projects, universally referred to as SROs) will be deterred from requesting a gateway review if an adverse review is liable to become public; members of project boards and others who are interviewed for the purposes of a gateway review will be less outspoken if their views are liable to be published; and gateway reviewers will be less forthright in their reports if there is a danger of disclosure to the public.
(c) Disclosure could undermine the still live policy development process relating to identity cards.
To ask the Chancellor of the Exchequer what traffic light status was awarded to the identity card scheme by the Office of Government Commerce at the gateway review 1 stage.
The ID Cards programme has not yet undergone a Gate 1 Review. It has, however, undergone two OGC Gate 0 Reviews, in June 2003 and January 2004 respectively. The traffic light status awarded by these reviews is exempt from disclosure under the Freedom of Information Act 2000 as disclosure would be likely to prejudice both the ability of OGC to examine the effectiveness, efficiency and economy with which other Government Departments exercise their functions and also the formulation and development of Government policy. I believe the public interest in disclosure of such information is outweighed by the public interest in non-disclosure.
I find the reasons provided to justify withholding this information inadequate. I specifically asked for the scheme's traffic light status rather than any of the detail of the OGC's work. Given the unprecedented scale, expense and constitutional implications of the scheme, I believe there is a clear public interest case for disclosure. I note that the independent assessment conducted by the London School of Economics warns that the scheme may run over the budget by several billion; the public is surely therefore entitled to know whether the project is on course.
I would therefore ask you to review your decision not to provide the information requested.
Mr Oaten's letter was responded to by the Director, Customer Systems and Services of the OGC, who said that the Chief Secretary had asked for a review of the decision, and that the review would be conducted in accordance with the OGC's Freedom of Information internal review procedure. The result of the review was communicated to Mr Oaten by letter from John Healey MP, the Chief Secretary to the Treasury, dated 22 June 2005. It concluded that the information sought was subject to the exemptions in sections 33 and 35 of the Act, and that the need for candour and confidentiality in relation to gateway reviews was such that it would not be in the public interest for the information requested to be disclosed.
"Mr Healey advised the commission by letter dated 26 September 2005 that the initial response provided to the Parliamentary Question was consistent with that which would have been given had a Freedom of Information request been made. He also confirmed that the complainant's letter of the 16 March 2005 requesting an internal review was dealt with as an FOI request. It should be noted that the Commissioner does not consider a Parliamentary Question to be a valid request for the purposes of the Act. Alternatively the Commissioner takes the view that the request for an internal review to the Treasury Minister can be treated as the freedom of information request. In considering the application for a decision by the Commissioner under s.50(2) of the Act, the Commissioner has decided that the complainant has effectively exhausted the internal complaints procedure and the Commissioner is therefore able to make a decision under s.50."
The issues before me
(a) The Tribunal failed to identify a material and substantial public interest justifying disclosure notwithstanding its decision that both section 33(1) and (2) and section 35 applied to the information in question. It therefore erred in the application of section 2 of FOIA.
(b) The Tribunal failed to apply its finding that disclosure would prejudice the OGC's exercise of its functions when making its decision under section 2.
(c) The Tribunal erred in failing to take as its starting point for the purposes of section 35 that, on a proper construction of the Act, disclosure of information falling within such an exemption is of itself to be regarded as harmful to the public interest.
(d) The Tribunal wrongly characterised the case of the OGC as seeking to maintain an absolute exemption from disclosure, and thus inconsistent with the statutory provision of qualified exemption.
(e) The Tribunal's conclusion on the application of section 2 erred in law, in that:
(i) The Tribunal had regard to an irrelevant consideration, namely its criticism of the training provided by the OGC in relation to gateway reviews and the application of FOIA.
(ii) The Tribunal had regard to a further irrelevant consideration, namely the extent to which potential harm from disclosure could be diminished by the OGC changing its procedures for carrying out Reviews The Tribunal (at paragraphs 52 and 89 of the decision) had regard to an irrelevant consideration, namely the extent to which the potential harm from disclosure could be minimised if the OGC adopted different practices in undertaking and reporting on gateway reviews.
(iii) The Tribunal failed to have regard to a relevant consideration, namely the availability of other means of public scrutiny of government procurement projects and programmes by the work of the National Audit Office and the Parliamentary Accounts Committee.
(f) The Tribunal wrongly concluded (at paragraph 85 of the decision) that the public interest that is the subject of sections 33 and 35 was diminished by the fact that a Parliamentary Bill relating to identity cards had been introduced, and therefore, as the Tribunal considered, the Government's policy relating to identity cards had been decided. This was particularly erroneous because the Bill was in the nature of an enabling measure, leaving many questions of policy to be determined later when subordinate legislation was introduced.
(g) The Tribunal failed to address the existence or extent of the public interest in the disclosure of the information in question. If the Tribunal accepted the submissions of the Commissioner set out in paragraph 78 of its decision, it failed to explain the basis of its conclusion that the public interest test under section 2 required disclosure, or why the generic considerations relied on by the Commissioner were not appropriately addressed elsewhere or would be furthered by disclosure.
(h) The Tribunal erred in relying on the opinion of the Parliamentary Select Committee on Work and Pensions, which advocated disclosure of gateway reviews to it rather than to the public.
(i) The finding of the Tribunal to the effect that the evidence of the OGC as to the importance of maintaining confidentiality was "unconvincing" was perverse, given the experience of the OGC's witnesses and their evidence to the effect that confidentiality was needed and the absence of any evidence to the contrary, moreover, the Tribunal's decision at paragraphs 88 and 89 discloses a misunderstanding of their evidence.
(a) The assumption by the Information Commissioner or Information Tribunal of jurisdiction to consider the adequacy of a Ministerial reply to a Parliamentary question would infringe Article 9 of the Bill of Rights 1689 and the wider principle of Parliamentary privilege. The Freedom of Information Act 2000 confers no such jurisdiction.
(b) The Tribunal infringed Article 9 of the Bill of Rights and/or the wider principle of Parliamentary privilege:
(i) by relying on the conclusions of the Parliamentary Select Committees as authority supporting its decision on a contested issue before it; and
(ii) by examining the extent to which the Government had complied with public commitments given to a Select Committee.
The second point (Use of Parliamentary Material in the Tribunal's Decision) raises an issue of considerable practical importance, both for information requesters and for public authorities, in relation to proceedings in the Tribunal, which in my view it is important for the Court to be aware of. The Tribunal does not seek to question or impeach any proceedings in Parliament, and recognises that it has no power to do so. However, parties before the Tribunal, and the Tribunal itself, find that the explanations and information provided by knowledgeable members of Parliament, for example in Select Committee reports, are of very great utility in helping the Tribunal reach its decisions on whether information should be released under the Freedom of Information Act. The Tribunal's work would be significantly hampered and artificially constrained if the Tribunal were prohibited from referring to such material. It should be possible to make such reference, for the assistance which it affords, without that involving the "impeaching or questioning of proceedings in Parliament" as properly understood. (I have in mind particularly paragraphs 10, 14 and 19 of the opinion in the recent Privy Council case of Toussaint v Att Gen of St Vincent.) To derive assistance from statements made in Parliament, so as the better to understand executive action, does not amount in my view to questioning or challenging those statements. If parliamentary material is admissible in a judicial review to explain executive action that took place outside Parliament, it should equally be admissible to explain the position taken by a Government department outside Parliament on issues of disclosure under the Freedom of Information Act.
Discussion: the first decision of the Tribunal
the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament.
In addition to article 9 itself, there is a long line of authority which supports a wider principle, of which article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges... As Blackstone said in his Commentaries on the Laws of England, 17th ed. (1830), vol. 1, p. 163:
"the whole of the law and custom of Parliament has its original from this one maxim, 'that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.'"
In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of—(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
That Act, therefore, declares what had previously been regarded as the effect of article 9 of the Bill of Rights 1689 and section 16(3) of the Act of 1987 contains what, in the opinion of their Lordships, is the true principle to be applied.
For these reasons (which are in substance those of the courts below) their Lordships are of the view that parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House, subject to any statutory exception such as exists in New Zealand in relation to perjury under section 108 of the Crimes Act 1961.
But their Lordships wish to make it clear that if the defendant wishes at the trial to allege the occurrence of events or the saying of certain words in Parliament without any accompanying allegation of impropriety or any other questioning there is no objection to that course. (Italics added.)
One of the questions I have to consider is: what is meant by "other questioning", and what is the effect of this prohibition?
"… I think that the way in which the court complies with Article 9 of the Bill of Rights 1689, and with the law of the privileges of Parliament, is not by refusing to admit evidence of what was said in Parliament, but by refusing to allow the substance of what was said in Parliament to be the subject of any submission or inference."
This would seem to be at least one of the origins of the formulation in paragraph (c) of section 16(3) of the Parliamentary Privileges Act 1987. The other may have been the reference in the judgment of Brown J in Church of Scientology of California v Johnson-Smith  1 QB 522 to the submission of the Attorney-General:
But the Attorney-General limited what he said about the probable attitude of Parliament to the use of Hansard by agreement by saying that Hansard could be read only for a limited purpose. He said it could be read simply as evidence of fact, what was in fact said in the House, on a particular day by a particular person. But, he said, the use of Hansard must stop there and that counsel was not entitled to comment upon what had been said in Hansard or to ask the jury to draw any inferences from it. …. But the general principle is quite clear I think, and that is that these extracts from Hansard which have already been read must not be used in any way which might involve questioning, in a wide sense, what was said in the House of Commons as recorded in Hansard.
The judgment of Brown J was approved by the House of Lords in Pepper v Hart.
In Prebble it was stated that section 16(3) contains the true principles to be applied, a view shared by the Joint Committee on Parliamentary Privilege (H.L. Paper 43-1) (1998 - 1999) which recommended a statutory provision confirming "as a general principle" the traditional view of article 9, i.e. that it is a blanket prohibition on the examination of parliamentary proceedings in court. "The prohibition applies whether or not legal liability would arise: p. 28, para. 85."
It is in my judgment firmly established that courts are precluded from entertaining in any proceedings (whatever the issue which may be at stake in those proceedings) evidence, questioning or submissions designed to show that a witness in parliamentary proceedings deliberately misled Parliament. To mislead Parliament is itself a breach of the code of parliamentary behaviour and liable to be disciplined by Parliament: see Church of Scientology of California v. Johnson-Smith  1 Q.B. 522; Pickin v. British Railways Board  AC 765 at p. 800 per Lord Simon of Glaisdale. For the courts to entertain a question whether Parliament had been deliberately misled would be for the courts to trespass within the area in which Parliament has exclusive jurisdiction.
I have stressed this feature of parliamentary privilege because of the way in which this case has developed. As will appear, the Court of Appeal seem to have taken the view that parliamentary privilege is mainly relevant to cases where a party applies to strike out a court action on the grounds that the relief claimed in that action in some way trenches on conclusions reached in parliamentary proceedings. Although no doubt such cases may arise, they are, I believe, rare compared with those in which a party to litigation wishes to challenge the accuracy or veracity of something said in parliamentary proceedings. In such a case, the other party does not apply to strike out the whole of the plaintiff's action: the action will often be about something quite different to that under consideration in Parliament. The other party applies to prevent the giving of that specific evidence or the challenging of a particular witness. If parliamentary privilege is held to exclude such evidence normally the only result (serious though it may be) is that the case is decided in the absence of that evidence.
… The normal impact of parliamentary privilege is to prevent the court from entertaining any evidence, cross-examination or submissions which challenge the veracity or propriety of anything done in the course of parliamentary proceedings. Thus, it is not permissible to challenge by cross-examination in a later action the veracity of evidence given to a parliamentary committee.
"Veracity" is apt to include accuracy.
32. Sub-sections (a) and (b) of the section cited from the Australian statute are uncontroversial. But sub-section (c), if read literally, is extremely wide. It would seem to rule out reliance on or a challenge to a ministerial statement itself on judicial review of the decision embodied in that statement (which was permitted in R v Secretary of State for the Home Department ex parte Brind  1 AC 696, and to which no objection has been raised in the present case), or to resolve an ambiguity in legislation (Pepper v Hart  AC 593), or to assist in establishing the policy objectives of an enactment (Wilson v First County Trust Ltd  1 AC 816). It would also prohibit reliance on reports of the Joint Committee on Human Rights, which, as Mr Lewis' submissions rightly state, have been cited in a number of appellate cases in this jurisdiction: a very recent example is R v F  EWCA Crim 243 at paragraph 11. As Lord Nicholls of Birkenhead observed in Wilson, "there are occasions when courts may properly have regard to ministerial and other statements made in Parliament without in any way 'questioning' what has been said in Parliament, without giving rise to difficulties inherent in treating such statements as indicative as the will of Parliament, and without in any other way encroaching upon Parliamentary privilege by interfering in matters properly for consideration and regulation by Parliament alone". I therefore do not treat the text of subparagraph (c) of the Australian statute as being a rule of English law.
My view is that I should not place reliance on the PASC report for an entirely different and more fundamental reason, which is that, in the words of the Privy Council in Prebble, the courts and Parliament are both astute to recognise their respective constitutional roles. It is for the courts, not the Select Committee, to decide whether the Secretary of State has acted unlawfully in rejecting the findings and recommendations of the Ombudsman in this case. I note and respect the views of the Select Committee but in the end they are not of assistance on the questions of law which I have to determine.
This passage of the judgment of Bean J was not commented upon in Bradley in the Court of Appeal  EWCA Civ 36.
115. Toussaint clarifies, and in my view limits, the exclusion resulting from an allegation of impropriety. It establishes that it is proper for a claimant to rely on evidence of what was said by a Minister in Parliament to show what was the motivation of the executive's action outside Parliament, in that case the compulsory purchase of Mr Toussaint's land. He alleged that the compulsory purchase was discriminatory or illegitimate expropriation: an allegation of impropriety. He was entitled to rely on the Minister's statement to show what was the true motivation for the compulsory purchase. It is to be noted that Mr Toussaint did not allege that the Minister had misled Parliament; to the contrary, it was alleged that what he said to Parliament disclosed his true motivation. The allegedly wrongful act in that case was not the statement to Parliament, but the compulsory purchase to which it related: see paragraphs 19 and 20 of the judgment of the Judicial Committee. Mr Toussaint was similarly entitled to rely on what the Minister said to Parliament in support of his allegation that the purpose stated in the declaration for compulsory purchase was a sham: paragraph 23.
117. …In general, the opinion of a Parliamentary Committee will be irrelevant to the issues before the Court (as in R (Bradley) v Secretary of State for Work and Pensions  EWHC 242 (Admin) …
120. In my judgment, the Speaker's submissions, and the authorities to which I have referred, demonstrate the importance of identifying the purpose for which evidence of proceedings in Parliament is relied upon. Like Bean J in Bradley, it is the relevance of that material as well as its origin that the Court must consider. It is necessary to consider whether this material would otherwise be admissible on or relevant to the determination of the Claimants' substantive claims, before deciding whether its origin precludes their adducing it in evidence.
121. Whether the increase in APD was retrospective is to be determined objectively, by reference to the terms of the provision effecting the increase and its practical financial effects. Whether a Parliamentary Committee did or did not consider it to be retrospective is, in my judgment, irrelevant to the legality of the increase, and on that account its opinion is inadmissible.
122. Whether any witness gave a complete or an incomplete account of APD or its increase or the effects of the increase to a Parliamentary Committee is also irrelevant to the determination of the substantive issues before me. It is for Parliament, not the Courts, to assess the completeness and reliability of such evidence. This Court is not concerned with such matters, which do not affect or go to the lawfulness of the increase.
123. Similarly, whether the Parliamentary procedure by which the increase was introduced was appropriate has no bearing on its legality. That is most certainly not a matter for judicial investigation or comment.
124. The efficacy or otherwise of APD as an environmental measure is also, in my judgment, a question which, if relevant, is to be determined on the basis of evidence and argument before the Court, and not on the basis of the opinion of anyone whose evidence is not before the Court. There is, however, no reason why the Claimants cannot take from what has been said to or by a Select Committee points that can be put before the Court. For example, what was said by the Financial Secretary to the Treasury to the Select Committee on the Environment is not rocket science, but something that would be obvious to anyone who gave the matter some thought. The points he made can be made independently, without reference to his statement.
125. Thus, in the end, I do not think that the Parliamentary material referred to by the Claimants, which I have looked at de bene esse, as such advances their case.
… Legislation is the function of Parliament, and an Act of Parliament is immune from scrutiny by the courts, unless challenged on the ground of conflict with European law. Subordinate legislation derives its legality from the primary legislation under which it is made. Primary legislation that requires subordinate legislation to be approved by each House of Parliament does not thereby transfer from the courts to the two Houses of Parliament, the role of determining the legality of the subordinate legislation. …
In Prebble's case it was stated that section 16(3) contains the true principles to be applied, a view shared by the Joint Committee on Parliamentary Privilege (HLP 43-1) (1998-1999) which recommended a statutory provision confirming "as a general principle" the traditional view of article 9, i.e. that it is a blanket prohibition on the examination of parliamentary proceedings in court. "The prohibition applies whether or not legal liability would arise": p 28, para 85.
I accept Mr Chamberlain's submission that that reference was made in the special context of an examination of the scope and effect of Parliamentary privilege, on which it is important for Parliament and the courts to agree if possible. However, there have been many other such references by the Court. In Bentley itself in the Court of Appeal, Sir John Chadwick referred to the Report of the Select Committee on the Parliamentary Commissioner for Administration at paragraph 64 of his judgment, with which the other members of the Court of Appeal agreed. Again, however, that report concerned Parliamentary proceedings and the jurisdiction of Parliament. In R v F  EWCA Criminal 243  QB 960, at , the reference was incidental and irrelevant to the issues before the Court. In Conway v Rimmer  AC 910, Lord Reid referred to a statement made by the Lord Chancellor in the House of Lords in order to ascertain the practice of the Government in claiming what was then called Crown privilege, and is now public interest immunity.
Other grounds of appeal
The public interest in disclosure and the public interest in maintaining the exemption: grounds (a), (c) and (g)
1. General right of access to information held by public authorities
(1) Any person making a request for information to a public authority is entitled–
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him.
(2) Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14.
In adopting or reviewing a publication scheme, 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 decisions made by the authority.
29. It can be said, however, that there is an assumption built into FOIA that the disclosure of information by public authorities on request is in itself of value and in the public interest, in order to promote transparency and accountability in relation to the activities of public authorities. What this means is that there is always likely to be some public interest in favour of the disclosure of information under the Act. The strength of that interest, and the strength of the competing interest in maintaining any relevant exemption, must be assessed on a case by case basis: section 2(2)(b) requires the balance to be considered "in all the circumstances of the case".
35 Formulation of government policy, etc
(1) Information held by a government department or by the National Assembly for Wales is exempt information if it relates to–
(a) the formulation or development of government policy,
(b) Ministerial communications,
(c) the provision of advice by any of the Law Officers or any request for the provision of such advice, or
(d) the operation of any Ministerial private office.
(2) Once a decision as to government policy has been taken, any statistical information used to provide an informed background to the taking of the decision is not to be regarded–
(a) for the purposes of subsection (1)(a), as relating to the formulation or development of government policy, or
(b) for the purposes of subsection (1)(b), as relating to Ministerial communications.
(3) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1).
(4) In making any determination required by section 2(1)(b) or (2)(b) in relation to information which is exempt information by virtue of subsection (1)(a), regard shall be had to the particular public interest in the disclosure of factual information which has been used, or is intended to be used, to provide an informed background to decision-taking.
33 Audit functions
(1) This section applies to any public authority which has functions in relation to–
(a) the audit of the accounts of other public authorities, or
(b) the examination of the economy, efficiency and effectiveness with which other public authorities use their resources in discharging their functions.
(2) Information held by a public authority to which this section applies is exempt information if its disclosure would, or would be likely to, prejudice the exercise of any of the authority's functions in relation to any of the matters referred to in subsection (1).
(3) The duty to confirm or deny does not arise in relation to a public authority to which this section applies if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice the exercise of any of the authority's functions in relation to any of the matters referred to in subsection (1).
(1) Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either–
(a) the provision confers absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information,
section 1(1)(a) does not apply.
(2) In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that–
(a) the information is exempt information by virtue of a provision conferring absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
(3) For the purposes of this section, the following provisions of Part II (and no others) are to be regarded as conferring absolute exemption–
Sections 33 and 35 are not among the provisions listed under subsection (3), and thus create qualified rather than absolute exemptions.
The Tribunal wrongly criticised the OGC's case as seeking to maintain an absolute exemption from disclosure; and the Tribunal had regard to an irrelevant consideration, namely its criticism of the training provided by the OGC in relation to gateway reviews.
"In summary, the prospect of disclosure had the potential to prejudice the quality of Gateway reviews. These perform an important role in ensuring that public authorities are using their resources in an efficient and effective way and there is therefore a strong and vital public interest in maintaining their efficacy. The general working assumption is that the Conclusion and Summary of findings, the Findings and Recommendations, the RAG Status, the list of interviewees, and the summary of recommendations should be withheld citing s 33 of the Act and where held by the auditee, using s 35/s36 in the alternative."
I do not find this objectionable. The evidence of Sir Peter Gershon, who had been the first chief executive of the OGC between April 2000 and March 2004 and had introduced gateway reviews, and of Derek Baker, who had been the Director of Managed Service Operations of the OGC, was to the same effect: see the transcript of day 1 at pages 25 to 26 and 61 to 65. A similar approach to that of the OGC was taken by the Department for Trade and Industry in relation to investigations under the Companies Act 1967 into the affairs of companies, and was considered by the Tribunal, differently constituted, in Appeal no. EA/2006/007. In that case, the complainant sought disclosure of the purpose of for which an investigation had been instituted. The Department refused disclosure, relying on the qualified exemption in section 30. The Tribunal did not criticise the Department's approach, which came very close to a claim for absolute exemption, and upheld the Department's refusal. Indeed, in paragraph 87 of its instant decision, the Tribunal suggested that the disclosure of the gateway reviews in question would not necessarily lead to their disclosure in other cases.
The Tribunal failed to have regard to a relevant consideration, namely the availability of other means of public scrutiny of government procurement projects and programmes by the NAO and the Parliamentary Accounts Committee
Failure to appreciate that the Government's decision to introduce the Identity Bill to Parliament did not mean that its policy in relation to identity cards had been decided
The timing of a request is of paramount importance to the decision. We fully accept the DFES argument, supported by a wealth of evidence, that disclosure of discussions of policy options, whilst policy is in the process of formulation, is highly unlikely to be in the public interest, unless, for example, it would expose wrongdoing within government. Ministers and officials are entitled to time and space, in some instances to considerable time and space, to hammer out policy by exploring safe and radical options alike, without the threat of lurid headlines depicting that which has been merely broached as agreed policy. We note that many of the most emphatic pronouncements on the need for confidentiality to which we were referred, are predicated on the risk of premature publicity. In this case it was a highly relevant factor in June 2003 but of little, if any, weight in January 2005.
The underlining is in the original.
The finding that the OGC's evidence as to the importance of maintaining confidentiality was unconvincing was perverse.
Conclusion on the first decision
The second decision
(1) Any person making a request for information to a public authority is entitled–
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him.
(2) Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14.
It can be seen that subsection (1) refers to and is confined to information held by the public authority at the time of the request. When deciding under section 50 "whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part I", the Commissioner is similarly restricted to the information held by the authority at the date of the request. If the authority did not hold that information at the date of the request, Part I did not require it to inform the complainant that it did hold the information, and Part I did not require it to disclose it.
Information Tribunal Appeal Numbers: EA/2006/0068 and 0080
For the Appellant: Mr Robin Tam QC.
For the Respondent: Mr Timothy Pitt-Payne
The Tribunal upholds the decision notices dated 31st July 2006 and 5th October 2006, except that we find that section 33 as well as section 35 FOIA is engaged, and dismisses the appeals.
REASONS FOR DECISION
Background to Gateway Reviews
9. In 1998, against a background where many large, complex, novel and often IT-enabled civil programmes and projects had missed their delivery dates, run over budget or failed to fulfil requirements, the Government asked Sir Peter Gershon (Sir Peter) to review civil procurement in civil government. The Review of Civil Procurement in Central Government, April 1999 (the Gershon Report) recommended that a common strategic framework should be established within which all central government departments would conduct their procurement activities.
10. The Government accepted the recommendations of the Gershon Report and in 2000 the OGC was set up with Sir Peter as its first Chief Executive. The OGC introduced a number of initiatives to promote best value for money in government procurement, the central of which was the Gateway process, through which programmes and projects are examined at critical stages in their life cycle to provide assurance that they can progress successfully to the next stage.
11. As Sir Peter explained in his written evidence to the Tribunal, the Gateway process is now mandatory across Central Civil Government departments and Executive Agencies and that others such as the Ministry of Defence, the NHS and local government have adopted the process on a voluntary basis. The process is set out in detail in the OGC Gateway Process Review Pack.
12. A Gateway Review (GR) is a review of a delivery programme or procurement project carried out at a key decision point by a team of experienced people who are independent of the team running the project. Each programme or project has a Senior Responsible Officer (SRO), a senior individual in the department concerned who takes on personal responsibility for its success. SROs use Risk Potential Assessments to determine the level of risk associated with a programme or project and this helps determine the composition of the GR team and the extent of its independence from the department.
13. GR's are conducted on a confidential basis for the SRO. Typically (and this was the case in the Gate Zero Reviews that are the subject of this appeal) the review teams are made up of three people (the Reviewers) who take four days to conduct the on-site review. Reviewers are mainly senior civil servants or outside consultants with extensive experience of the area under review. The members of the review team conduct their interviews on a confidential basis with interviewees (the Interviewees) and present their findings in a non-attributable manner in the report to the SRO. The review team has access to all the stakeholders in a project and, for high risk projects, Ministers and Permanent Secretaries are usually interviewed. At the end of each day, the review team provides a progress report to the SRO and, before they leave the site on the final day, the team presents him/her with a draft report. The SRO has the opportunity to correct factual errors but the substance of the report, its recommendations and their RAG status (see paragraph 17 below) are not open to negotiation. In brief, the philosophy of the Gateway process is that an independent review team should come in, conduct a quick peer review, and leave behind a short, clear and sometimes blunt report that is easily digested by the SRO who can put it to immediate use in pursuit of the success of the project or programme.
14. The number and nature of GR's has evolved since 2000. There are now five numbered Gates during the life cycle of a project which, for this purpose, is defined as a piece of work designed to achieve specified outputs within a specified period of time and within planned cost, quality and resource constraints. Three of the reviews are conducted before the award of the contract, one examines the implementation of the service and one confirms the operational benefits.
15. A major upgrade of the process resulted in the introduction in January 2004 of Gate Zero Reviews, although there is evidence that they had started to be used earlier than this date but the process was not formalised until later. Gate Zero Reviews, two of which are the subject of this appeal, are undertaken only for programmes. A programme is defined in the Cabinet Office's Review of Major Government IT Projects as a portfolio of projects that aim to achieve a strategic goal of the lead government department, and that is planned and managed in a coordinated way. Gate Zero Reviews may be repeated through a programme's life and such reviews might typically be undertaken during the phase when the programme is being defined, when the programme is being implemented and when the programme has been completed.
16. Some programmes are more important than others. Some are deemed "mission-critical", such as the Identity Cards programme that is the subject of these two appeals, because they are essential to the successful delivery of a legislative requirement, a key departmental target, or a major policy initiative announced or owned by the Prime Minister or a Cabinet Minister. Also additionally "mission-critical" is used to define programmes or projects whose failure would have catastrophic implications for a delivery of a key public service or national security.
17. A "key" programme is a mission-critical programme that the Prime Minister's Office regards as having the greatest reputational risk or operational impact on government as a whole. The Chief Executive of the OGC is required to give the Prime Minister regular reports on the status of these programmes. As at December 2006 there were 15 such key programmes, one of which was the Identity Cards programme.
18. About June 2002, the R(ed) A(mber) G(reen) status (RAG Status) was introduced to prioritise review recommendations. Red means that immediate action must be taken. Amber means that action must be taken before the next review. Green means that the recommendation is considered beneficial to the project but not essential for its success. The overall RAG status of a review is derived from the RAG status given to the individual recommendations: one or more reds produces an overall RAG status of red; no reds but one or more ambers produces an overall RAG status of amber; and no reds or ambers produces an overall RAG status of green.
19. Since April 2003, a project or programme given an overall red RAG status in consecutive reviews triggers what is known as a "double red" Gateway procedure. The Chief Executive of the OGC sends a letter to the Permanent Secretary of the Department concerned, with a copy (since June 2005) to the National Audit Office (NAO). Since February 2006 the NAO has passed on information about "double reds" to the Chairman of the Public Accounts Committee (PAC).
20. The Tribunal was provided with evidence that GR's, of which there have been several thousand conducted since the process was introduced, have succeeded in improving the extent to which government projects are delivered on time, to quality and to budget. This has produced substantial benefits: it is claimed that GR's saved the Exchequer some £1.5 billion between 2003 and 2005.
21. In addition to GR's, internal reviews that mirror the Gateway process are undertaken by departments and their agencies. We were shown a funnel and pipe shaped diagram of these in relation to a particular department and how they relate the various OGC review gates. The internal reviews are carried out without external help in contrast to GR's where Reviewers come from outside the department. We were informed in evidence that the Interviewees are often more candid, open and critical than they are during GRs.
Opportunities for public scrutiny
22. There are several ways to scrutinise procurement projects and programmes publicly. The NAO, headed by the Comptroller and Auditor General (C&AG), is totally independent of Government and scrutinises public spending on behalf of Parliament. It audits the accounts of all central government departments and agencies, as well as a wide range of other public bodies, and reports to Parliament on the economy, efficiency and effectiveness with which they have used public money. On the basis of reports by the C&AG, the PAC (whose main function under the National Audit Act 1983 is to examine whether the sums of money agreed by Parliament for public spending are properly spent) subjects departments to rigorous and public scrutiny.
23. In addition to the PAC with its government-wide remit on public spending, each government department is also subject to scrutiny by a Parliamentary Departmental Select Committee whose role is to examine 'the expenditure, administration and policy' of the relevant department and its 'associated public bodies'. Committees determine their own subjects for inquiry, gather written and oral evidence and make reports to the House of Commons to which the Government replies. In the course of this hearing, the Tribunal was referred to the inquiry conducted by the Select Committee on Work and Pensions that reported in 2004 on Management of Information Technology Projects: Making IT Deliver for DWP Customers. It considered, amongst other things, the arguments for and against publishing GR's.
24. GR's are conducted 'live' and make recommendations while the programmes/ projects are still going forward. In contrast the NAO, the PAC and other Parliamentary Select Committees conduct historical audits and reviews whose recommendations are generally based on lessons learnt usually after the programme/project has been launched and often after it has been completed. In particular the NAO conducts retrospective audits that are looking at value for money rather than actually seeking to contribute to the successful delivery of the programme/project. Whereas NAO audits and PAC and Select Committee reports and proceedings are public and undertaken on a retrospective basis, GR's have remained private, are current reviews and look forward.
25. In evidence we were informed that GR's had been taken into account by the NAO, the PAC and Select Committees, but without disclosing the contents of the reviews. However the 27th PAC Report 2004-05 published on 6th April 2005 concluded that:
"this Committee believes that, to further enhance external scrutiny, there is a strong case for the publication of Gateway review reports, particularly given the repeated failures of public sector IT-enabled projects and programmes in recent years. "
Also the Work and Pensions Select Committee in its 3rd Report of the 2003-04 Session published in July 2004 recommended that;
"the Government should publish GR's with appropriate safeguards or failing that to set out how Parliament otherwise can be provided with the level of information it needs in order to scrutinize adequately questions of value for money from major IT contracts."
26. The Government response to the PAC in the form of the Treasury minutes of the 19th and 27th PAC reports presented to Parliament in November 2005 also record that despite the conclusions reached in the previous paragraph that:
"The OGC does not agree with routine publication of Gateway reports. However, it does not operate a "blanket" exemption for Gateway information. Under the Freedom of Information Act 2000 each request for information is considered on a case-by case basis and the public interest is carefully considered in each case. Where information is disclosed simultaneous publication on the OGC website is also considered."
27. In its Response to the Work and Pensions Select Committee, published in October 2004, the Government said:
"The Government recognises the concerns of the Committee with respect to the information provided to Parliament on IT projects and IT contracts. It takes seriously the need to consider requirements under the Freedom of Information Act 2000 (FOI) and Parliament's need for sufficient information to perform effective scrutiny. Equally, however, the Department and the OGC have been frank about their concerns around the provision of commercial information and the publication of OGC Gateway Reviews. There are legitimate concerns around the need to protect Government departments' onward programme of competitive supply, and to protect the inherent value of the openness and candour of the OGC Gateway Review process currently afforded by confidentiality. "
The evidence presented to the Tribunal was that no GR had been disclosed under FOIA.
Witnesses before the Tribunal
28. Mr Tam on behalf of the OGC called 7 witnesses. Sir Peter Gershon who was the first Chief Executive of the OGC. He was the instigator of the introduction of the Gateway Review process by Central Government. Keith Boxall, the Head of Standards and Practice at the Identity Passport Service, who has had experience of implementing projects both before and after the introduction of the Gateway Review Process. Derek James Baker, Director of Managed Services Operations at the Better Projects Directorate of the OGC, who was formerly Gateway Project Director responsible for developing and rolling out the Gateway programme across Central Civil Government, developing and maintaining the design of the Gateway process and communicating the benefits of that process throughout Central Civil Government. Andrew Edwards a retired civil servant with more than 31 years experience, mostly at the Treasury. Since his retirement he has provided consultancy services to Government Departments and has led many GR's. Bernard Herdan, the Executive Director for Service Planning and Delivery at the Identity and Passport Service (IPS), who is responsible for all IPS operational delivery and for planning future evolution of services and capabilities. Anthony Melville Deputy Chief Constable of Devon & Cornwall Constabulary and finally Stephen Harrison Acting Executive Director, Strategy at the IPS.
29. These witnesses provided extensive evidence about the introduction and operation of the Gateway Review Process from the perspective of policy makers and project and programme initiators, managers, SROs, Reviewers and Interviewees both in relation to central government departments and other authorities who use the GR process on a voluntary basis. Their evidence forms the basis of the sections of this decision under the headings the 'Background to Gateway Reviews' and the 'Public Interest Test: Factors in favour of maintaining the exemption'. In a nutshell this evidence describes the GR process and how it works and their view of the future should GR's be disclosed under FOIA. In relation to the latter we would summarise their evidence as overwhelmingly of the view that notwithstanding the risk that GR's might be disclosed, they all considered that even the remotest possibility of disclosure would undermine the whole system which, it is claimed, has resulted in major benefits for government projects including substantial savings.
30. Mr Pitt-Payne on behalf of the Commissioner did not call any witnesses which we find surprising as it would have been helpful to have had a different perspective on the GR process. We have glimpses of this perspective from Mr D's email correspondence exhibited to the Tribunal and in reports of other bodies such as the PAC and the Select Committee on Works and Pensions.
31. We were informed in evidence by several of the witnesses that they had undertaken general FOI training. There had also been some briefing on FOI during training for the GR process. The witnesses seemed to believe that there was little risk of GR's being disclosed under FOIA or other means, which appears to have come from the briefings. Only in cross examination did some of the witnesses recognise that there could be no guarantee of non-disclosure. Mr Herdan said "OGC practice was that this information would not be disclosed and that people could talk without fear and that it would be non-attributable to them, but we were not able to say that there was a 100 percent guarantee that this information would never get into the public domain. "
32. There was no evidence that the OCG had reviewed its training or briefing in relation to FOIA following the Commissioner's findings in the Decision Notices.
Background to the ID card scheme
33. This is set out in detail in the Tribunal's decision in Department of Works & Pensions v The Information Commissioner's (DWP case) at paragraphs 34 to 53. Briefly the Government completed its consultation exercise in relation to ID cards in January 2003 and announced its decision to introduce a scheme in November 2003 after the first Gate Zero Review in this case. A Bill was presented to Parliament in October 2004 after the second Gate Zero Review. At the time of the Requests the Bill was being debated in Parliament.
34. In evidence Mr Harrison confirmed that the Bill would not have been published without the benefit of the two Gate Zero Reviews. He also commented on why the GR process was used at such an early stage in the programme: "We were in the odd position where we could not set up a programme team because Government had not decided to have ID cards, so we eventually got there I think slightly subverting the gateway zero process, but it was the only process that was there at the time and that importantly other Government departments, particularly Number 10 and the Treasury would sign up to something that was an adequate assessment of the issues before they would agree to the policy. " Mr Harrison added "It was made very clear to us from Number 10 in particular that they wanted a Gateway process. "
The Questions for the Tribunal
35. In this case the Tribunal needs to address the following questions:
a. Whether the exemption at section 33 of FOIA was engaged in respect of the requested information, i. e. whether the "prejudice" test was satisfied;
b. If the section 33 exemption was engaged, whether the public interest in maintaining that exemption outweighed the public interest in disclosure;
c. Whether the exemption at section 35 of FOIA was engaged in respect of the requested information;
d. If the section 35 exemption was engaged, whether the public interest in maintaining the section 35 exemption outweighed the public interest in disclosure.
The Tribunal's powers
36. These have been set up out clearly in other decisions of the Tribunal, for example the DWP case. The Tribunal's general powers in relation to appeals are set out in section 58 of the Act. They are in wide terms. Section 58 provides as follows.
(1) If on an appeal under section 57 the Tribunal considers-
(a) that the notice against which the appeal is brought is not in accordance with the law, or
(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,
the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.
(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.
The question whether the exemptions in sections 33 and 35 apply is a question of law or alternatively of mixed fact and law. The Tribunal may consider the merits of the Commissioner's decision as to whether the exemption applies, and may substitute its own view if it considers that the Commissioner's decision was erroneous. The Tribunal is not required to adopt the more limited approach that would be followed by the Administrative Court in carrying out a judicial review of a decision by a public authority.
The examination exemption
37. The Commissioner found that section 33 was not engaged in this case. Mr Tam challenges this finding.
38. Under section 33(1) of FOIA "any public authority which has functions in relation to – (b) the examination of the economy, efficiency and effectiveness with which other public authorities use their resources in discharging their functions" is caught by this exemption provided that:
"(2) Information held by a public authority to which this section applies is exempt information if its disclosure would, or would be likely to, prejudice the exercise of any of the authority's functions in relation to any of the matters referred to in subsection (1)."
39. This is a qualified exemption which is subject to two tests. Firstly the "prejudice" test set out in section 33(2) above and provided that is met then the public interest test has to be considered under section 2(2)(b), namely that "in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information."
40. The Tribunal has considered the meaning and application of the prejudice test, which is common to a number of qualified exemptions under FOIA, in several decisions e. g. Hogan and Oxford City Council v Information Commissioner and John Connor Press Associates Limited v Information Commissioner. These cases have found the term "would prejudice" means that it is "more probable than not" that there is prejudice to the specified interest set out in the exemption. The other part of the prejudice test, "would be likely to", has been found by the Tribunal to mean something less than more probable than not but where "there is a real and significant risk of prejudice." (Hogan at paragraph 35). This finding has drawn support from the decision in R (on the application of Lord) v Secretary of State for the Home Office  EWHC 2073 (Admin).
41. In other words the Tribunal has found that the occurrence of the prejudice to the specified interest in the exemption has to be more probable than not or that there is a real and significant risk of prejudice, even if it cannot be said that the occurrence of prejudice is more probable than not. The probability of prejudice expressed by these two limbs of the test are not too far apart.
42. Mr Tam, although accepting the definition of the first limb of the test, challenges the definition of the second limb. He argues that in the Lord case the court was concerned with section 29(1) of the Data Protection Act 1998 (DPA) which provides, relevantly:-
"Personal data processed for any of the following purposes:-
(a) the prevention or detection of crime,
(b) the apprehension or prosecution of offenders, or . . . are exempt from . . . [the subject access provisions] in any case to the extent to which the application of those provisions in the data would be likely to prejudice any of the matters mentioned in this subsection" (emphasis added).
43. He continues, Munby J held that 'likely' in section 29(1) connotes a degree of probability where there is a very significant and weighty chance of prejudice to the identified public interests. The degree of risk must be such that there 'may very well' be prejudice to those interests, even if the risk falls short of being more probable than not" (judgment paragraph 100, emphasis added by Mr Tam).
44. Mr Tam then argues that Munby J's conclusion in that case provides no assistance to the Tribunal in this case, and presumably that the Tribunal's previous findings on this point have been wrong, for the following reasons:
a. Munby J was considering an exemption in a different statutory scheme. The exemption, if applicable, would have the effect of preventing subject access to the data requested. It was therefore an absolute rather than a qualified exemption. This was, and was treated by the judge, as a reason to construe its requirements strictly. See in particular paragraph 99 of the judgment, where Munby J said:-
". . . I cannot accept that the important rights intended to be conferred by section 7 are intended to be set at nought by something which measures up only to the minimal requirement of being real, tangible or identifiable rather than merely fanciful. Something much more significant and weighty than that is required . . ."
b. Equally, the construction adopted by the judge was influenced by the need to construe the DPA in the light of the requirements of Council Directive 95/46/EC of 24 October 1995 (see judgment paragraph 83). At paragraph 99, the judge observed that the Directive permitted:-
". . . restrictions on the data subject's right of access to information about himself only (to quote the language of recital (43)) 'in so far as they are necessary to safeguard' or (to quote the language of Article 13(1)) 'constitute a necessary measure to safeguard' the prevention and detection of crime (emphasis added). The test of necessity is a strict one."
45. Mr Tam concludes that by contrast, FOIA stands alone and is not to be interpreted by reference to any Directive or other instrument, still less by reference to one that requires a test of "necessity" to be satisfied before rights of access to information may be denied. Consequently, Munby J's judgment was not a sound basis for the adoption of a "very significant and weighty chance of prejudice" test in relation to FOIA, or indeed for any test higher than "not insignificant", "real, as opposed to fanciful", "not insubstantial" or "not minimal".
46. Mr Tam then refers us to a number of other authorities, namely -Three Rivers District Council v Governor and Company of the Bank of England (No 4)  EWCA Civ 1182,  1 WLR 210 at 221H, para 22. See also In re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563 at 568 - which he says support his contention that the phrase "would be likely to" means that
a. The chance or likelihood of prejudice resulting must be more than insignificant or fanciful; and
b. The prejudice anticipated must be more than trivial or frivolous, for the qualified exemption to be made out, but that no further or higher hurdles should be imposed.
47. In other words Mr Tam is asking us to find that the gap between the two limbs of the prejudice test is wide and that this means there is a lower threshold than required under Hogan and John Connor Press to engage the exemption.
48. We have considered these arguments and are not prepared to change our finding in the previous decisions of the meaning of the prejudice test for the following reasons:
a. The words in section 33(2) FOIA are closer to the words in the DPA interpreted in Lord than the words of the statutes being interpreted in other authorities cited by Mr Tam;
b. In terms of the statutory context the DPA and FOIA are closely connected, despite the fact the former implements a European Directive and FOIA does not. There are links between the statutes and at various points in the DPA they are now referred to collectively as "the Information Acts" and to some extent these two pieces of legislation form a common scheme for dealing with rights of access to information, both personal information and other information, with common enforcement mechanisms both via the Commissioner and via this Tribunal;
c. The Lord and the FOI cases are dealing with limitations on rights of access to information; in Lord with the subject access rights under section 7 DPA and in FOI cases with the general right of access to information under section 1 FOIA. Mr Tam says that in section 29 DPA, there is no public interest balance to be struck. Therefore if section 29 is engaged, the subject access right is lost, and that is an end of the matter. In the present context, even if a qualified exemption that is prejudice based is engaged, there is still the public interest test to go through. However, if a qualified exemption is engaged under FOIA, then what this means is that the important general right of access under section 1 is potentially lost. It is potentially at risk. The right of access to information held by a public authority is now under scrutiny and is subject to a public interest test after having gone through the gateway of the prejudice test. It is not simply a right that is enjoyed without qualification. So although if a prejudice exemption is engaged it does not take the right away, it does have significance in relation to the right. It means that the right is potentially at risk, depending on where the public interest balance lies in the circumstances of the individual case. Therefore although this position is not on all fours with the Lord case, there are important similarities with Lord which although not binding on us are of assistance as to what a phrase like "would be likely to prejudice" means.
d. In Lord, the expression "would be likely to prejudice" stands alone. In the present case, the phrase is "would or would be likely to prejudice". There is no disagreement that "would prejudice" indicates prejudice being more probable than not. If this phrase had been coupled with an alternative possibility whereby any non-fanciful, non-remote prospect of prejudice could engage the exemption, then the language that we would have expected Parliament to have used in FOIA is, as Mr Pitt-Payne submits, "would or might" rather than "would or would be likely to prejudice".
Engagement of section 33
49. The implications of our above finding is that the OGC has a more difficult task in complying with the prejudice test as the threshold is higher than Mr Tam has been contending. The Commissioner found in the Decision Notices that this higher threshold had not been met and therefore the section 33 exemption was not engaged and there was no need, therefore, to move to applying the public interest test.
50. This Tribunal has the power to review the OGC's application of the prejudice test, despite our finding that the Commissioner applied the right legal test (see DWP at paragraph 16). We have decided to exercise this power and find that the OGC was correct to find that the exemption was engaged.
51. The public interest test requires the public authority to stand back and abnegate its own interests except and insofar as those interests are properly viewed as part of the public interest when applying the test (See DWP paragraph 24). The prejudice test, however, does not require such a balancing act. It requires the public authority to determine reasonably and objectively whether disclosure would, or would be likely to, prejudice the exercise of, in this case, the OGC's GR functions.
52. The OGC has provided considerable evidence in this case from witnesses appearing before the Tribunal and in statements attached to Refusal Notice 1 that the Public Authority considers that the GR process would be harmed by public disclosure. We find that the OGC was reasonable in concluding there would be a weighty chance of harm, because the underlying way that GR's are undertaken would need some change to the current practice if it were to be demonstrated under FOIA that there could be no guarantee that GR's would be kept from disclosure in the future. These changes would put the currently practised GR process at some risk. We make no comment here on the way the GR process is practised or whether it could be argued that the way it is practised has contributed to the likely harm. It certainly does not amount to maladministration. Therefore we find it was reasonable for the OGC to determine that disclosure of the disputed information would be likely to prejudice the undertaking of GR's and therefore the OGC's function. However we would not go so far as to find that it would prejudice the OGC's functions in this respect.
The formulation of government policy exemption
53. The other exemption claimed in this case is under section 35 FOIA, namely (1) Information held by a government department. . . . . . . . . . . . . is exempt information if it relates to- (a) the formulation or development of government policy. This is a class – based exemption which means that there is no need to show prejudice or harm as under section 33.
54. Both the OGC and the Commissioner consider that parts of disputed information are caught by this exemption and that the exemption is engaged. The Tribunal has reviewed the disputed information and agrees that the exemption is engaged, although we find, as the Commissioner recognised in the Decision Notices, that the policy in relation to the introduction of identity cards had been formulated and was well under development by the time of the Requests. Most of the information which is not caught by the exemption has already been disclosed to the complainants.
55. Therefore we need to consider the application of the public interest test. Both parties agree that the factors to be taken into account are largely common to both exemptions so we consider these exemptions together in order to determine whether the test has been applied correctly by the Commissioner.
56. We would observe that we do not expect that section 35 would be engaged for every request for a GR. There will be little if any policy formulation or development in some reviews, particularly later in the project cycle where they are above all concerned with implementation and delivery.
Analogy to other exemptions
57. Mr Tam suggests to us that we should consider these exemptions as analogous to three other exemptions under FOIA, namely section 42 (legal profession privilege or LPP), section 40 (personal information) and section 41 (information provided in confidence). His reason for seeking to create such analogies is to require us to apply, in effect, a stricter test when considering the public interest balance.
58. In relation to the LPP exemption we have already considered such an analogy in the DWP case and rejected it in relation to section 35. We reject the analogy on similar grounds in this case in relation to both the section 33 and 35 exemptions engaged in this case.
59. In relation to the other two exemptions (sections 40 and 41), which are absolute exemptions, we again reject the analogy. If Parliament had intended the section 33 and 35 exemptions to be absolute exemptions than it would have provided as such. If these exemptions (sections 40 and 41) had been relevant to this case then the OGC should have claimed these exemptions. Mr Tam cannot expect us to allow him to introduce them in such an indirect manner. In any case both these exemptions are not as absolute as first appears. The application of section 40 will often require a similar balancing act to the public interest test when the date protection principles are being considered – see the Tribunal's decision in House of Commons v Information Commissioner. Section 41 will usually require the application of a public interest test as to whether there is an actionable breach of confidence at common law – see the Tribunal's decision in Derry City Council v Information Commissioner.
The public interest test
Factors in favour of maintaining the exemption
60. Mr Tam argues that there is a very strong public interest in maintaining the exemptions otherwise the success of GRs will be fundamentally undermined. There is a very strong public interest in the efficient and effective running of programmes and projects particularly where large sums of money can be saved. Mr Tam applies the same public interest to both of the exemptions engaged in this case and does not seek to apply separate and different factors to each exemption.
61. Mr Tam identifies two information flows within the Gateway process which he argues have to be protected. The first one is the information flow from Interviewees and other sources to the review team. The team uses this information to reach its conclusions and recommendations. It is important, he argues, to distinguish that flow from information flowing back to the Department concerned and the SRO in the form of advice and recommendations. The Requests touch on both flows in this case and it is important to recognize the difference and not to confuse the two when considering the public interest test.
62. The GR system, he argues, is based on maintaining confidentiality in order to promote openness, honesty and the candid exchange of information. This is a fundamental philosophy resulting in a form of behaviour which makes the process work.
63. He identifies 14 areas of harm to GR's from even the remotest possibility of disclosure which is, in effect, a summary of the OGC's witnesses' evidence. He contends that if one of these is triggered, even the less substantial items, then all the other items will be triggered because they are interrelated, and that severe harm to the GR system will occur. He further argues that disclosure of a GR would essentially trigger an entire package of disadvantages and adverse effects on the whole process.
64. We set out the 14 areas briefly below, which are largely based on the witnesses' opinion of the future of the GR process should GR reports become routinely disclosable soon after publication:
a. The effect on Interviewees who would become more guarded and cautious in their communication with the review panel and less open and candid. This would have three possible effects. Juniors would be reluctant to criticise or be seen to be criticising superiors or others involved in the project. Anyone would be reluctant to be seen to be criticising the department as a whole, the particular project or perhaps a minister's approach to policy or decisions. Finally Ministers who are interviewed themselves may be reluctant to say anything critical about their own policies or decisions, for fear this would have an impact on the way they are seen.
b. Interviewees may refuse to be interviewed at all. Currently it is not actually a problem because of the way the process works, but past experience is no guide to the future where you are contemplating a wholesale change in the assumptions that are to be made by the participants to a review.
c. Reviewers will be less willing to be involved in reviews generally.
d. Reviewers might be less willing to become involved in reviews from a time commitment point of view because the whole process will lengthen due to concern that the content of the report might be published. The availability of Reviewers for increased periods of time would be less.
e. There will be an impact on civil servants wishing to become SROs for fear of adverse publicity.
f. The private sector would be less willing to be involved in reviews if they feared adverse publicity and this may have a knock on effect on their interest in working with government.
g. Although GR's are mandatory for central government there is flexibility in the timing of when reviews are undertaken and SROs would tend to delay reviews in order to maximize the chance of getting a green light RAG status.
h. It will affect the way reports are written. They would become more bland and anodyne if published. They would be drafted in "finessed language" or "Civil Service speak". The reports might omit issues of sensitivity which are then communicated orally rather than put in the report.
i. The time and energy taken to negotiate the content of reports in order to reduce the risk of criticism of the project or the review team, because the department involved feels obliged to take a public stand and defend itself against the criticism. Time and energy might also be expanded if things go wrong and the review team then gets criticized for not having done a thorough job.
j. This will not only result in delays but influence the way the GR report is communicated to SROs.
k. Some of the above effects would introduce an atmosphere of conflict and confrontation between the two sides in the review process.
l. It would also lead to a general loss of enthusiasm and confidence in the process.
m. There would be resistance to recommendations. Participants would take entrenched lines, defending themselves, rather than embracing the recommendations. This is a natural reaction to criticism which is said is avoided by the current system.
n. This would particularly effect information relating to policy options which are of a sensitive nature to government, and also commercially sensitive information.
65. In Mr Tam's words the Gateway process is currently protected from these 14 areas of harm through non disclosure and provides a "huge boulder of protection for the Gateway process" and should not be tampered with. Put another way, what he is saying is that the effect of all of these areas of harm is that any FOI disclosure of any GR, regardless of the content of the review or of the timing (except perhaps after 30 years or a considerable period of time) of the disclosure, he says in every case, creates a very strong public interest in favour of maintaining the relevant exemptions, because of the almost certain adverse effect of disclosure on the GR process generally which is regarded as having so much value to the system.
66. Mr Pitt-Payne deals with the 14 areas of harm under 7 headings. Firstly the "frankness" of Interviewees where Mr Tam draws a contrast between the current frankness as he sees it and the feared future lack of frankness if there was disclosure. Mr Pitt-Payne argues that this harm has been overdone. The most obvious concern of Interviewees will be the way that their superiors will respond to the content of the GR, and more specifically to anything that they say to Reviewers which, although non-attributable, is nonetheless most likely to be identified as coming from them by their superiors. The main constraint on frankness, he argues, is not the prospect or possibility of publicity. It is the concern of a junior employee who may say something to upset a superior.
67. According to Mr Pitt-Payne there are really two points relating to frankness. The first relates to Interviewees being identified in the reports as having made a particular point. He argues that as the way the process presently operates, which makes such points non-attributable to particular individuals in GR reports, means that this important practice would be completely unaffected by any prospect of FOI disclosure and can continue.
68. The second point he makes in relation to frankness is the culture or behaviour surrounding GR's. OGC reviews and mechanisms are likely to work well in organizations where the culture allows people to speak freely and, if necessary, critically, without recrimination. They will not work well in an organization that does not have that culture. Organizations either have that sort of culture or not. If they have it they are not going to lose it overnight merely by the prospect of FOI disclosure. It will be up to management to assure staff that frankness will still be valued despite the possibility of disclosure.
69. Mr Pitt-Payne points out that even with non-attribution there is still a risk that it will be possible from the context of a report to ascertain who must have been the source of particular comments or information in a report. But, he says, this is a risk that is present anyway from insiders particularly the SRO who currently sees the report and will be most familiar with the position of Interviewees. It is unlikely, he argues, that people will simply decline to take part in OGC interviews. In Sir Peter Gershon's words the review process is part of the "DNA" of the public sector. It would be unrealistic to imagine that people would not take part in the system not least because, in accordance with the Civil Service Code, civil servants must fulfill their duties and obligations responsibly. This also goes for commercial partners who have an interest in ensuring that they have a good continuing relationship with public authorities.
70. The second heading of adverse effect referred to by Mr Pitt-Payne comes under the general remit of "delay": that if there is any perceived risk of GR reports being made public under FOIA then they would be negotiated and that will take time and use up everybody's energies and it will make the process confrontational. He argues that these consequences are largely in the hands of the public authority in general and the OGC in particular. The current ground rules are clear and work: the review is completed within a week; the SRO gets a draft report on the last day of the review; the report will include recommendations and a RAG status; these are non-negotiable; and there is a limited opportunity for the SRO to seek to correct matters of a drafting nature or factual errors. If the public authority and OGC makes it clear that these ground rules will still be applied, then the concerns will soon dissipate.
71. Mr Pitt-Payne labels the third area of concern as that of "deterrence": the concern that the prospect of publication would either deter people from having OGC reviews at all or deter them from having them in good time or deter them from acting on the recommendations made. He makes the point that they are compulsory for Civil Central Government. If an SRO deliberately chooses to delay a GR or ignore its recommendations the harm, he argues, would be even greater because of the risk to which the SRO might be placing the programme/project with the consequent risk of criticism say by the NAO or PAC. The prospect of a greater level of public accountability and transparency would operate as an incentive to cooperate with the review system rather than withdraw from it.
72. The fourth area of concern Mr Pitt-Payne labels as "self-censorship". The concern that Reviewers will be less frank, open and straightforward in their reporting than currently practiced. He argues that if the GR process is so highly valued then this is a matter for the OGC to get a strong message across to Reviewers that they should be frank, open and honest because that is in the public interest. If there is an increased level of publicity as would be expected under FOIA generally that is something that participants will have to be robust about.
73. The fifth area of concern identified by Mr Pitt-Payne comes under the general heading of "disincentives": disincentives for people to be Reviewers, SROs etc. He argues that this is not a realistic submission by Mr Tam because the SROs and Reviewers are on the whole senior Civil Servants who are committed to developing their own careers and it would be inconceivable that they would choose not to engage in the Gateway process because of a possibility of some GR material being disclosed under FOIA.
74. The sixth area of concern relates to the position of "commercial" organizations. Mr Pitt-Payne drew our attention to The Select Committee on Works and Pensions 2004 Third Report (2004 Report) (see paragraph 75 below) where it is clear that some outsourced suppliers would welcome publication of the GR reports and considered this was not a strong point. He accepted that commercial organizations would want to protect their confidential information and trade secrets but noted that there were specific FOIA exemptions for such information which had not been claimed in this case.
75. The final area of concern was that if information was disclosed it would be "misinterpreted". Mr Pitt-Payne pointed out that the Tribunal had already considered this general issue in Hogan and Oxford City Council v Information Commissioner where it was not considered a good public interest argument in favour of maintaining the exemption to submit that if information was disclosed that it would be misunderstood. Mr Tam narrowed down the argument from misunderstood by the public to information disclosed would be misrepresented by the press. Mr Pitt-Payne quite rightly made the point that if such a general assumption could be made then it would undermine the whole public policy behind having a freedom of information regime in the first place.
Factors in favour of disclosure
76. Mr Pitt-Payne points out that the public interest in disclosure is very often stated at a rather higher level of generality than the public interest in maintaining the exemption which will centre on the interests set out in the exemption. The public interest in disclosure will be set out in terms of interests in transparency, openness, accountability and informed public debate and so on. However, in this case he argues there are actually some very specific public interests in disclosure at stake in relation to two matters; the ID cards scheme and OGC reports and GR's.
77. He then argues that one of the principal public interests in favour of disclosure is contained in the 2004 Report. The means of public scrutiny currently available such as NAOs and PACs are historical and retrospective reviews and not related to current projects. GR's would provide a level of public scrutiny of current projects. We set out the relevant paragraphs from 2004 Report:
118. We note that OGC guidance does not provide for a blanket refusal to publish Gateway Reviews. OGC guidance suggests that publication of reviews should be determined on the merits of each case. We asked the Department how Parliament could exercise its legitimate duty of scrutiny of the Department and its Agencies when the Department refused to publish any of the many reviews into projects, such as CSA. In response the Department defended the Government's decision not to publish Gateway Reviews and pointed out that the NAO had a clear responsibility to scrutinise the Department and that "a review of the Child Support Reform programme will almost certainly take place when implementation is complete. " We acknowledge the excellent work of the NAO. Indeed, in this report we have referred to some of the problems caused by defective IT that have been identified in successive NAO and PAC reports. The NAO, as the guardian of the public purse, discharges its responsibility in a highly effective manner. However, and this is not a criticism of its skill and dedication, the NAO tends to undertake post evaluations on projects as part of its value for money studies or as an audit. Although its reports are presented to Parliament and published, they are generally historic, whereas we believe major IT projects should also be subject to close scrutiny during their development. Current projects need to be subject to current scrutiny. Parliament and the public should not be required to wait years after the planning decisions were made or problems emerged before they can get a detailed account of what has gone wrong. Parliament requires the opportunity to scrutinise such projects armed with relevant detailed information. The NAO produces 60 reviews per year and cannot fulfil the necessary scrutiny process unaided.
119. It was noticeable from the evidence that a number of other witnesses supported the case for OGC Gateway Reviews being published. During oral evidence sessions, a number of major IT suppliers said that they would welcome publication of OGC Gateway Reviews, or had no problem with publication, provided all major IT projects were treated equally. For example, Kevin Saunders said that SchlumbergerSema would be happy for them to be published. He added:
"I cannot see any problem that we would have with them being published, providing there is a clear understanding of the framework, obviously. I think the reviews would have to be perhaps even more tightly controlled in terms of the management and input to them but I cannot see why we would have a problem with publication because we have been through them, we know how they work and they make key decisions."
120. We found it refreshing that major IT suppliers should be content for the reviews to be published. We welcome this approach. It struck us as very odd that of all the stakeholders, DWP should be the one which clings most enthusiastically to commercial confidentiality to justify non-disclosure of crucial information, even to Parliament. We were surprised also that there is little central guidance to departments for dealing with those circumstances when the commercial IT suppliers are content for information to be made available and departments cling to commercial confidentiality. As regards damaging the review process, Tony Collins made the valid point that perhaps the reviewers are too close. He told us:
"If Gateway Reviewers believe the quality and rigour of their advice and work would suffer if their reviews were published, we would question whether they are too culturally close to those they are reviewing and therefore perhaps not be sufficiently independent and objective to reach the tough conclusions that Gateway Reviews sometimes demand.
"133. In general, no witness thought FOIA would have any effect on the disclosure of information relating to IT projects. It was thought that exemptions would apply. Equally, there was no evidence that FOIA was likely to put off suppliers from bidding for public sector contracts. Sheelagh Whittaker (EDS) told us that EDS was experienced in working under jurisdictions that operated freedom of information legislation and that the only test was to ensure that any claimed exemptions were genuinely commercial. "
Mr Pitt-Payne explains that this does not mean that GR's should be disclosed immediately under FOIA after being completed. That is not the position in this case where disclosure is being sought a year to 18 months after the relevant report was produced. It is still disclosure that would enable the delivery of what the House of Commons Select Committee is referring to in the previous paragraph, namely current projects, such as the ID card scheme, should be subject to current scrutiny. This, he argues, is a strong public interest.
78. Mr Pitt-Payne then argues that the public interest factors taken into account in the DWP decision at paragraphs 96 to 102 are all relevant to this case. In summary these are as follows:
a. The importance of the decision to introduce an ID card scheme;
b. The need for informed public debate of such an important decision;
c. The importance of allowing the public to better judge the Government's performance; and
d. The fact the disputed information was mature information.
79. Mr Pitt-Payne then refers us to Mr Edwards' witness statement where he sets out what a review team would be looking at in relation to the implementation of the ID cards programme. This includes whether the scope and priority had been sensibly defined? Whether the objectives have been clearly defined? Has a sensible range of options been properly identified? Have the technical options (for example, in relation to the National Identity Register, biometrics, etc) been properly identified and assessed? Have the procurement options been sensibly and rigorously assessed? Have promising options for rolling out the programme been similarly identified and assessed?
80. Mr Pitt-Payne agrees that these are all extremely good questions. They are questions he argues where there is a strong public interest element, in two respects. There is public interest in informed debate about these questions. There is a public interest in getting the right answer to these questions. There is also a public interest, he says, in understanding what answers the government has reached in relation to those questions and why, because these questions are all fundamental to the wider question, namely, is it a good idea to go ahead with the scheme? Is this a scheme that is do-able, that is deliverable? Is this a scheme where the benefits will outweigh or justify the costs? Are there sensible steps in place to ensure that those benefits are delivered for an acceptable cost and within an acceptable timeframe? If not, does that mean that the whole scheme should be abandoned or does that just mean that delivery should be rethought?
The Tribunal's Analysis and Findings
81. Although Mr Tam says he is not putting forward a case for GR's to be subject to an absolute exemption under FOIA it seems very like that to us. He says that the combined extent of the harm which will flow from disclosure is so overwhelming that there can be very few exceptions and then only possibly after a long period of time, say 30 years. His whole argument is based on the fact that the GR system can only continue to be successful if disclosure is not a realistic possibility.
82. The FOIA has been around for 7 years, from before the start of GR's. Parliament in its wisdom has absolutely exempted certain information from the Act, but it has not exempted GR's as such in this way. The OGC seems to us to have taken the view that they are exempt despite the Act and their public utterances that they will consider each request on its own merits is difficult to reconcile with their training of those involved in the GR process, their practice of not having released any GR's so far and the arguments being put forward in this case.
83. We cannot understand how the OGC appears to have given such internal assurances that reports would not be disclosed under FOIA. There has always been a possibility that GR's would be disclosed under FOIA. GR's are all about the management of risk. We would have thought that FOIA would have been factored into that risk assessment because cases like this appeal were foreseeable. To have developed a system on the apparent assumption that there was little or no risk of disclosure is at the very least unprofessional and at variance with one of the aims of GR's which is to encourage and support, in effect, more professionalism in the way programmes and projects are undertaken.
84. We are influenced by what the 2004 Report considered in relation to the publication of OGC GR's. The Government argued as in this case that publishing GR's would weaken the process. Despite this the Select Committee came to the following conclusion:
121. We are not convinced that the Gateway Review process is so fragile that the current levels of secrecy are necessary. We are genuinely sympathetic to any reasonable argument that justifies some material to be excluded from the published version of a Gateway Review, but in our view, the Government's objection to publishing Gateway Reviews is based on an untested assertion that publication would invalidate the review process. Publication of inspections and reviews is a widespread feature of public life nowadays and there is no reason why a major public IT projects costing millions of pounds, should not be subject to the same open scrutiny that applies in other areas of public life. This is especially true when the projects in question have such a long history of poor service. We recommend that the Government should publish Gateway Reviews with appropriate safeguards or failing that to set out how Parliament otherwise can be provided with the level of information it needs in order to scrutinise adequately questions of value for money from major IT contracts.
123. In short, we believe that more openness is needed and in our view one way to achieve this would be to give parliamentary committees greater access to Gateway Reviews. In the event that the case against full publication of Gateway Reviews can be substantiated, we call upon the Department to provide a summary document of each review within 6 weeks of the review being completed. We consider that by providing more information to Parliament, Ministers and officials will be under corresponding pressure to be kept fully informed about projects. (Bold emphasis taken from the report. )
We note that the 2004 Report records the Government and OGC's offer to develop a set of guidelines to cover increased access to information on IT contracts, which could then be used to inform decisions under FOIA about the amount of information provided on GR's and how it proposes to deal with requests for detailed information on publicly funded IT projects from members of the public. We were not provided with any evidence of progress on this offer, despite the fact the 2004 Report recorded that the guidelines were expected to be agreed by Ministers and published ready for the entry into force of FOIA on 1st January 2005.
85. We have accepted in DWP and Department for Education & Science v The Information Commissioner that Government needs to operate in a safe space to protect information in the early stages of policy formulation and development. We can understand the need for a similar safe space in relation to examination functions, despite what one witness described as an unusual use in this case of the Gate Zero Review process. However at the time of the Requests the decision had already been taken to introduce ID cards, a Bill had been presented to Parliament and was being debated publicly. We therefore find that in the circumstances of this case that it was no longer so important to maintain the safe space at the time of the Requests.
86. We find that the grave consequences for the Gateway process which Mr Tam maintains would result from even the remotest possibility that reports would be disclosed is overstated. We prefer Mr Pitt-Payne's arguments in paragraphs 64 to 73 above.
87. All the witnesses seem to be of the view that once one report was disclosed under FOIA the floodgates would open and they would have to work on the assumption that all reports would need to be disclosed very soon after publication. This is clearly incorrect. FOIA provides for many exemptions and where the public interest test is applicable it is applied to the circumstances of the particular request, not generally to say any GR's. There is no reason to believe the floodgates would open, but clearly GR's are subject to FOIA.
88. We find it difficult to accept that the OGC is really convinced by the arguments put forward by Mr Tam on their behalf. Mr Herdan, an experienced Reviewer and SRO, under cross examination accepted that although working under OGC rules and the care he took that nothing said to him by an Interviewee would be attributable, that given FOIA there could be no guarantee that a report would not be disclosed. Incidentally Mr Herdan had recently been involved with a GR relating to the Olympic Games, after at least one of the Decision Notices had been published, and despite the risks of disclosure following those Notices had still been able to undertake the GR successfully.
89. We are aware that some of the risks identified in Mr Tam's areas of harm are already being addressed in practice. For example Mr Edwards said in his evidence that he already draft's GR reports in a way which recognise that they may become public. He said to us:
"There is always a concern that these reports, like other public documents, may occasionally enter the public domain, for example as a result of leakage. For myself, therefore, I always try to ensure that the reports are drafted diplomatically so that if this did happen there would be no unnecessary political embarrassment and no unnecessary damage to the relationship between Government and officials. The style of the reports is therefore sensitive to that consideration."
90. The Tribunal has considered all the circumstances of this case and finds that the public interest in maintaining the exemption does not outweigh the public interest in disclosure. In other words we uphold the Commissioner's Decision Notices in this case.
91. The Tribunal observes that the RAG status only was requested under Request 2. If the Requests had not been consolidated this may have created a problem because the RAG status alone could be misconstrued unless other parts of Gateway report are disclosed. Therefore a public authority faced with such a limited request in the future might choose to disclose other parts of a report in order that the RAG status can be fully understood, unless of course an exemption is being claimed.
92. The Tribunal orders that the disputed information is disclosed to the complainants. However before requiring this order to be carried out we are prepared to give the parties 14 days from the date of this decision to make written submissions to us as to whether the names of the individuals listed as Reviewers and Interviewees in the disputed information should be redacted. Once we have determined this matter we will then require the OGC to disclose the information in whatever format we determine within 14 days of that determination.
John Angel Chairman Date 02 May 2007