Savile and Dishonourable Information

The Cabinet Office is required by the Information Commissioner to disclose internal correspondence about the conferring of honours on Jimmy Savile. Despite there being strong public interest arguments in favour of non-disclosure, they are outweighed by those in favour of disclosure.

There is an odd phenomenon, when considering the application of qualified exemptions under the Freedom of Information Act 2000 (FOIA),  that I like to think of as “the escalation of public interest factors”: if something is of great sensitivity, the corresponding public interest in disclosure is also great, with the result that the public interest in maintaining the exemption increases. This, is, of course, strictly, nonsense, but it is a phenomenon that public authorities can sometimes find themselves experiencing.

I note the phenomenon in the Cabinet Office’s handling of a recent request for disclosure of information relating to the conferring of honours on the benighted, and sadly still beknighted, Jimmy Savile. The requester sought

any correspondence [that] exists between either civil servants or ministers discussing the award either of an OBE in 1971 or a knighthood in 1996 [the knighthood was actually awarded in 1990] to Mr Savile, prior to either award being made

The information was, said the Cabinet Office, exempt from disclosure under sections 37(1)(b) (the conferring by the Crown of any honour or dignity) and 36 (effective conduct of public affairs. They

…acknowledged that this was an exceptional case in light of the information that had come to light in 2012 concerning Jimmy Savile [but] precisely because this was an exceptional case…the public interest favoured maintaining the exemption

The Information Commissioner’s Office, in a well-argued (n.b. I don’t always criticise the ICO) decision notice, has rejected the Cabinet Office’s arguments. The relevant exemptions are engaged, says the ICO, and there is public interest in maintaining them. So, in relation to section 37, the ICO

accepts that disclosure of the information would, to some degree, undermine the confidentiality of the honours system. The Commissioner accepts that this presents some risk of creating a chilling effect for contributions to future discussions in relation to honours nominees

however

disclosure would enable the public to be better informed about the matters taken into account at times when the award of honours to Jimmy Savile was under consideration. In the Commissioner’s opinion disclosure of the withheld information that is the focus of this request would go a significant way to serving the public interest, the nature of which is unique to this particular case

The ICO

wishes to emphasise that in reaching this decision he does not dispute the argument that disclosure would to some degree undermine the confidentiality of the honours system, simply that the public interest arguments in favour of disclosure attract more weight

Similar factors obtain in relation to section 36. So, while ongoing inquiries into the scandal mean that officials involved need a safe space to discuss relevant issues

the Commissioner does not accept that the safe space…will be significantly encroached by disclosure of this particular information…This is because the information focuses on one, relatively narrow, issue, namely Jimmy Savile’s receipt of two honours. In contrast the terms of reference for the investigations are wide ranging and cover matters of a wholly different nature

and while

the Commissioner accepts that it can be argued that the effective conduct of public affairs could be materially affected if disclosure of information under FOIA undermined the confidentiality of the honours system…the significant weight that the Commissioner considers should be attributed to the public interest arguments in favour of disclosure [mean that] the Commissioner has concluded that the public interest…favours disclosing the withheld information

Finally, although the ICO agreed that names of junior officials involved in the discussion regarding the conferring of honours were exempt under the Data Protection Act 1998 provisions of FOIA, the same did not apply to more senior officials and others. Even though

the individuals would have had a reasonable – and indeed weighty – expectation that such information would not be made public…the Commissioner believes that the legitimate public interest is only met, or, perhaps more accurately, best met, by revealing not only the comments of the individuals but also revealing who made them so that the recorded deliberations about the awarding of the honours can be fully and accurately understood

When finely balanced decisions on matters of public interest result in a recommendation for public disclosure it is common for an appeal to the First-tier Tribunal to follow. The Cabinet Office will have to consider now whether it wants to be seen to be trying to suppress information about the conferring on a serial sexual offender of an honour which the Prime Minister himself has questioned.