Reducing regulation…by clogging up the courts

The only thing that made me stop laughing about the Cabinet Office’s arguments in a doomed Tribunal appeal was thinking about the cost to the public purse.

Soon after it was formed the coalition government made an admirable commitment to cut government red tape, by reducing the amount of domestic regulation

Through eliminating the avoidable burdens of regulation and bureaucracy, the Government aims to promote growth, innovation and social action

A Cabinet sub-committee – the Reducing Regulation Committee (RRC) – was set up, to “take strategic oversight of the delivery of the Government’s regulatory framework”.

Around the same time the government was also trumpeting its transparency agenda, with the Prime Minister saying, in an Observer article in September 2010

For too long those in power made decisions behind closed doors, released information behind a veil of jargon and denied people the power to hold them to account. This coalition is driving a wrecking ball through that culture – and it’s called transparency

One might not have supposed, therefore, that it would have been necessary in August 2012 for a request under the Freedom of Information Act 2000 (FOIA) to be made, for (merely) the number of times the RRC had met. Surely this is the sort of information which should be made public as a matter of course? But it was necessary. Moreover, this particular door stayed shut, despite the gentle tapping of transparency’s wrecking ball, when the Cabinet Office refused the request, citing the FOIA exemption which applies to information held by a government department which relates to a) the formulation or development of government policy, or (b) Ministerial communications (section 35(1)(a) and (b)).

The Cabinet Office continued to argue that this exemption was engaged, and that the public interest favoured non-disclosure, when the requester complained to the Information Commissioner’s Office (ICO). And when the ICO held that, yes, the exemption was engaged, but, no, the public interest favoured disclosure , the Cabinet Office appealed the decision.

The First-tier Tribunal (Information Rights) (FTT) has now handed down its judgment, and it makes amusing if dispiriting reading. Wholly unsurprisingly, the ICO’s decision is upheld, and it seems that the Cabinet Office’s argument boils down to two main points: “if we tell you how often the RRC has met then it might mislead you into missing all the great work being done elsewhere, and as a result that great work elsewhere might be adversely affected” (my apologies to the Cabinet Office if this misrepresents their position, but I’ve really tried my best).

The FTT had very little time for these arguments. The only thing vaguely in the Cabinet Office’s favour was that, as a lot of information about “reducing regulation” processes was already publicly available, the public interest in disclosure was small. But, rather devastatingly, the FTT says

the public interest in maintaining the exemption is so weak that it does not equal, let alone outweigh, the, admittedly light, public interest in disclosure (para 27) [emphasis added]

It is worth reading the judgment (which I won’t dissect in detail), as an example of a particularly weak argument against FOIA disclosure, but I would add three closing observations from which you might deduce my level of approval of the Cabinet Office’s conduct:

1. this was a request simply and merely for the number of times a government committee has met (how “transparent” is a refusal to disclose that?)
2. taking a case to FTT is not without significant costs implications (bear in mind this was an oral hearing, with a witness, and with counsel instructed on both sides)
3. the whole litigation in any case carries a huge hint as to the nature/substance of the information held (if the RRC had met often, would the Cabinet Office really want to withhold that fact?)

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Filed under Cabinet Office, Freedom of Information, Information Commissioner, Information Tribunal, transparency

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