Dear Cabinet Office,
Please provide under the FOI Act all Cabinet Office advice to Ministers, including the Prime Minister and Secretary of State for Justice, about the transfer of responsibility for FOI from the Ministry of Justice to the Cabinet Office.
The period of my request is from the general election in May to 17 July 2015.
CABINET OFFICE REFERENCE: FOI321411
Dear ANDREW PARTRIDGE
Thank you for your request for information. Your request was received
on 20/7/2015 and is being dealt with under the terms of the Freedom of
Information Act 2000.
This email is just a short acknowledgement of your request.
If you have any queries about this email, please contact the FOI team.
Please remember to quote the reference number above in any future
Knowledge and Information Management Unit
E: [email address]
1. mailto:[Cabinet Office request email]
Dear FOI Team,
Twenty working days have now passed and I am reminding you that a response under the Act is overdue.
I think that is reasonable of me to expect a response within the next few days.
Please find attached the reply to your recent FOI request
1 Horse Guards Road
Email – [email address]
1. mailto:[Cabinet Office request email]
Dear Mr Smethurst,
Thank you for your response to my FOI request asking for the advice given by the Cabinet Office to Ministers in relation to the transfer this summer of responsibility for FOI from the Ministry of Justice to the Cabinet Office. I am grateful to you for taking the trouble to reply personally.
First, I note that you do hold information within scope of my request.
Second, I note that the Cabinet Office has engaged s35(1)(a) because the information relates to policy formulation and development.
I think that is right. The public interest arguments you have advanced are reasonable and make the case for not releasing the information. I note, from the Campaign for Freedom of Information website, that the Commissioner’s and Tribunal’s approach to the public interest test is that policy discussions will not normally be disclosed if they were requested before the policy decision was announced. According to the Tribunal (EA/2006/0006, DfES & IC & The Evening Standard):
“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”
In this case my request was made after the policy announcement, so the question is whether disclosure of the information, and the length of time after the decision, would deter officials or ministers from frankly expressing or recording their views in future. As I see it, your argument that the candour of those involved would be adversely affected by premature disclosure of discussions, is reasonable - my request was made a few days after the announcement of the change in responsibility, and therefore if a complaint went before the Commissioner or Tribunal they would be likely to consider that the public interest in preventing that ‘chilling effect’ outweighs the public interest in disclosure.
In forming that view I am mindful of my recent experience in the Tribunal. That case, as you will recall, related to advice given by the Cabinet Office to Mr Gove in late 2011 about the use of private email accounts for government business. When Mr Tom Watson MP asked for the information in January 2012 the Commissioner upheld the DfE’s refusal, because the advice was recent (weeks old). When, two years after the advice, I asked the Cabinet Office for the same information, you at first refused, but the Commissioner decided that by then the public interest in release outweighed that in withholding. The Cabinet Office appealed but, on the very last day for its closing submission to the Tribunal in May this year, withdrew its appeal.
The point I make is that, because of the timing of the advice about the transfer of responsibility for FOI which was the subject of my July request to you, there would be no point in my complaining to the Commissioner. Well-reasoned responses like yours, and the history of decisions by the Commissioner and the Tribunal of which the above illustration is but one, sufficiently protect the safe space under section 35. The remit of the FOI Commission with respect to that exemption would seem otiose, and I wonder if you would mind passing this letter on to the Chair of the Commission to provide an example of why that is so, especially as it appears that there is no public consultation on the matter.
The Cabinet Office's release to me in the earlier case which went to the Tribunal revealed that it had done a u-turn, and sent corrected guidance to DfE weeks before Mr Gove said in Parliament that he was sticking to its earlier (incorrect) advice and was still awaiting revised guidance from the Cabinet Office. This might have something to do with the shift of responsibility for FOI away from Mr Gove. But knowledge of that will have to wait until sufficient time has elapsed in order to protect the safe space. Unless, of course, you care to put the record straight on that particular aspect now.
With best wishes
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