On 27 December 2006, Dr Christopher Lamb made a request to the British cabinet office for copies of cabinet minutes and records relating to meetings at which the attorney general’s legal advice concerning military action in Iraq was discussed. Under the British Freedom of Information Act 2000, any person who makes a request to a public authority for information is entitled to be informed in writing whether the information requested is held and if so, to have that information provided. This general right of access is not unlimited and exemptions from the duty to provide information requested fall into two classes: absolute and qualified exemptions. Where the information is subject to a qualified exemption, the duty to disclose does not apply if, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information (detailed case in “Information Commissioner’s Report to Parliament; ICO, 09/04/09).
The cabinet office accepted that such meetings took place but refused to disclose copies of the minutes, referring to the section of the Act that states that: “Information held by a government department is exempt information if it relates to the formulation or development of government policy and Ministerial communications.” This is a qualified exemption and the cabinet office was of the view that the balance of public interest was in favour of maintaining the exemption.
I am retelling this well-known case because I believe it graphically presents some of the important issues of which we need to be aware as we consider the Access to Information Bill now before parliament.
If a request is denied, a person may apply to the Information Commissioner for a decision on whether the request for information was dealt with in accordance with the requirements of the Act and the commissioner is under a duty to issue a “Decision Notice” following such an application. Dr Lamb complained to the commissioner about the refusal to provide him with the information. The commissioner was of the view that the information in the public domain was not sufficient to enable the public to properly scrutinise the manner in which the decision was taken to take military action and decided that disclosure of the minutes was necessary and issued a Decision Notice ordering the cabinet office to disclose copies of the minutes.
The complainant or the public authority may appeal against the Information Commissioner’s decision to an Information Tribunal. In applying the public interest test, the tribunal is entitled to reach its own conclusion and in the Lamb case, it upheld the commissioner’s decision and dismissed the government’s appeal. Where a Decision Notice is served on a public authority and relates to a failure to comply with the duty to provide information, a certificate may be issued by the relevant authority negating the effect of the Decision Notice. This certificate is the so-called “veto”. In such cases, a cabinet minister can substitute his or her view for that of the commissioner or tribunal as to where the balance of the public interest lies in a particular case. In February 2009 the Rt. Hon Jack Straw, MP, Secretary of State for Justice, issued a “veto” of the Decision Notice in the Lamb case. This did not go down well with the freedom of information community and at present (2011) there is a Freedom of Information (Amendment) Bill before the British Parliament to remove the “veto”.
In my view, quite apart from the need to keep the level of exemptions contained in freedom of information legislation to a minimum, as we proceed to consider our Bill, the Lamb case can teach us important lessons. Firstly, the individual/individuals in charge of administering the law should not only be but be seen to be independent. Secondly, blanket veto powers should be avoided and finally we should establish inexpensive and quick review processes. On all these counts, our proposed legislation is wanting.
In the Bill, the Commissioner of Information is to be appointed by and removable by the president. He reports to the Minister of Information (in our case the president) who is to provide him the required personnel and it is the minister who is to provide annual reports to the National Assembly on the operation of the law. In the UK, the Information Commissioner reports directly to parliament and section 49(2) of the Act provides that in addition he may from time to time lay before each House of Parliament such report as he thinks fit.
Our Bill also has the general public interest override that most commentators find disconcerting and the removal of which the British parliament is now considering. Section 14(1) states: “Subject to subsections (3) and (4) and subject to the provisions of any other written laws, access to records under this Act applies to all records in the custody or under the control of a public authority, including court administration records, but does not apply to the following – …… (j) a record or information the disclosure of which, in the opinion of the head of the public authority, is not in the public interest or in the interest of the security of any person.” This is in addition to section 27(4) in Part V (Exempt Documents), which states: “For the purpose of this Act, a certificate signed by the Secretary to the Cabinet certifying that a document as described in a request would, if it existed be one of a kind referred to in subsection (1) (an exempt document) establishes conclusively that if such a document exists, it is an exempt document.”
The Bill provides (s. 43(1)) for a person aggrieved by the decision of the Commissioner of Information to apply to the High Court for judicial review, but as we well know, an application for judicial review, especially in the face of administrative recalcitrance, can be a most cumbersome and lengthy process. Our Bill largely follows the one laid in the National Assembly in 2006 by the Alliance For Change, which is itself a carbon copy of the Freedom of Information Act 1999 of Trinidad and Tobago. But nowhere in the Trinidad & Tobago legislation can I find a section similar to section 14(1)(j) and that Act also provides for a first review by the Ombudsman before recourse has to be sought from the High Court.
