The Government tried to use no less than eight separate exemptions to keep the information secret the ICO found that five of these exemptions were not relevant and two of the others should not have been used to withhold information. I have to concede that one of the exemptions was correctly applied but it related to less than 4% of the documents falling in the scope of the request.
Today is a good day for anyone who believes in transparency. The ICO has issued a polite yet damming ruling against the Governments attempt to protect the Royal Finances from scrutiny.
FOI requestors will be able to use the arguments in this Decision Notice to get more information about the Royal Family released more quickly.
The Government refused to disclose the information under:
- FOI section 21: Information Accessible By Other Means [relevant, applied to just four out of more than 100 documents]
- FOI section 31: Law Enforcement [not relevant]
- FOI section 36: Prejudice To Effective Conduct Of Public Affairs [relevant but public interest was still in favour of disclosure]
- FOI section 37: Communications With Her Majesty, With Other Members Of The Royal Household, And The Conferring By The Crown Of Any Honour Or Dignity [relevant but public interest was still in favour of disclosure]
- FOI section 38: Health And Safety [not relevant]
- FOI section 43: Commercial Interests [not relevant]
- EIR reg 12(5)(d): Confidentiality of the Proceedings [not relevant]
- EIR reg 12 (5)(f):Adverse impact on the interests of the person who provided the information [not relevant]
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2 comments:
Do you think the ICO's decision sets a precedent for future Freedom of Information requests concerning the royal family?
Will the FOI officers in government departments have to take these rulings into account from now on?
I'd be interested to know what you think.
I don't think that ICO decisions form precedent in the same way as decisions in legal cases which become part of the law (case law) however the ICO wants to be seen to be consistent in its decisions so the practical effect of this is that ICO will be looking very carefully at this decision notice before making decisions on similar matters from now on. The ICO guidance may also be updated to take into account conclusions reached in this case and FOI officers regularly refer to the ICO guidance on FOI/EIR.
To give an example:
"Regulation 12(5) (d) of the EIR states that a public authority may refuse to
disclose information to the extent that its disclosure would adversely effect the confidentiality of proceedings"
The Department for Cuture, Media and Sport tried to argue "proceedings" meant everything they did:
"DCMS states that it considers ‘proceedings’ of a public authority to encompass functions which it conducts in the normal course of business and therefore the proceedings of DCMS include its functions in corresponding with the Royal Household"
The ICO came up with a much narrower definition of "proceedings":
"The EIR contains no definition of ‘proceedings’ however, the Commissioner
considers that proceedings will include a range of investigative, regulatory or
other activities carried out according to a statutory scheme... He does not, however, believe that the term is as wide in its meaning as to include any business conducted by a public authority or its officials."
It would be inconceivable that the current Commissioner would rule in a future case that "proceedings" meant everything a public authority did.
This means that the 12(5)() exemption will now only apply in limited circumstances rather than being a blanket "can't release this its confidential" exemption. This will mean more environmental information is released about the Royal Family, major corporations, lobbyists and others.
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