A Howitzer of an FOI Exemption

A recent decision by the Information Commissioner shows that the House of Commons is able, under the FOI Act, to apply a blanket provision preventing disclosure of information of potential public interest, from which there is no appeal. If I were a cynical adviser to the House, I’d suggest using it more often.

The Freedom of Information Act 2000 (FOIA) contains a few howitzers with which a relevant public authority can obliterate an otherwise valid request for information. The most familiar of these is at section 53, whereby, in relation to a Information Commissioner (IC) decision notice served on a government department requiring them to disclose information, a Cabinet minister can issue a veto, from which there is no right of appeal.

Less well-known are the certificates which can be served under sections 23 and 24, by ministers, to be conclusive evidence that information requested was supplied by or relates to national security bodies, or is exempt from disclosure for reasons of national security. (These are appealable, either by the IC or by the applicant, under section 60 of FOIA).

Less well-known still is a section which allows the Speaker of the House of Commons (or the Clerk of the Parliaments) to issue a certificate which provides conclusive evidence that disclosure would or would be likely to cause prejudice to the effective conduct of public affairs. This is section 36(7) and, read with section 2(3)(e), it provides an absolute exemption to disclosure, which the IC is duty bound to accept. In effect, it is a means whereby the Houses of Parliament can prevent FOIA disclosure, with no right of appeal.

Thus, in a decision notice published this week about a request for information relating to the tax treatment of residential accommodation provided by the House of Commons, the IC says

Given the nature and provenance of the certificate, the Commissioner is obliged by section 36(7) FOIA to accept the certificate as “conclusive evidence” that the opinion is reasonable in both process and substance and that the alleged inhibition would be likely to occur; therefore, the Commissioner accepts that section 36(2) FOIA is engaged and that the withheld information is exempt

Any appeal of this decision would have the same outcome: if a properly-made certificate states that the exemption applies, then it does, and no regulator or court can say different. So, despite what appears to be a potentially high degree of public interest in the information requested, about, in the applicant’s words

issues of principle… the provision of residential accommodation is a substantial benefit, and its tax treatment is of legitimate interest to the public

we will not get to see it.

There could, I imagine, potentially be an application for judicial review of the decision to issue the certificate, in the same way that the ministerial veto at section 53 is potentially amenable to judicial review, but this would have to be on the classic public law grounds, and would be a very difficult challenge.

One rather wonders why this provision has not been used more often. It has been used in the past to prevent disclosure of information relating to names and salaries of MPs’ staff, and to prevent disclosure of information about the claiming of parliamentary privilege. But when requests were made for disclosure of MPs’ expenses information, the exemption claimed was the one relating to personal data. A section 36(7) certificate would, it seems to me, have rendered those requests dead in the water. Did the House of Commons miss a cynical trick?

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