Ombudsman reports on openness
30 June 2004
Press release 01/04
30 June 2004
The Parliamentary Ombudsman, Ann Abraham, today published the results of her investigations over the past year into complaints that government information had been wrongly withheld from those who had asked for it under the Code of Practice on Access to Government Information.
The 25 published cases cover a range of departments and agencies. A high proportion of complainants were journalists, and MPs who had failed to get the information they wanted by asking parliamentary questions (PQs). The issues covered included the Attorney General's legal advice on the Iraq war, accidents involving nuclear weapons, background notes to PQs, details of ministerial meetings and supporting studies relating to the Euro. Many involved sensitive material and not all complaints were upheld.
The Ombudsman said, "Often there is a legitimate public interest in releasing the information. But the real difficulty lies in establishing whether or not that interest outweighs any harm which might result from disclosure. The Code requires departments to be as open as possible about the information they hold. However, all too often their instinctive response is still to treat official information as non-disclosable without considering whether or not that is really the case."
The Ombudsman also reported on departmental performance in relation to Code complaints. In an attempt to resolve previous difficulties, in July 2003 the Cabinet Office published a Memorandum of Understanding which reminded departments how they should deal with requests for information made under the Code and the timescales and procedures they are required to comply with once the Ombudsman has initiated an investigation. The Ombudsman reported that, with occasional exceptions, the requirements set out in the Memorandum of Understanding had been adhered to. However, in a minority of cases there had been problems, not only of delay in providing a response to the complaint, but also in providing the papers necessary to pursue the investigation. The Ombudsman described it as 'surprising and regrettable' that she still had to remind departments of her powers in relation to Code complaints.
Three cases involved the Ministry of Defence. The first (A.10/04) related to a request from a journalist to the Ministry of Defence (MOD) and Foreign and Commonwealth Office for the 1992 National Audit Office report into the Al Yamamah arms contract. The Ombudsman found that the report was covered by Parliamentary privilege and that it was for them to decide whether or not to release it. She did not uphold the complaint. In the second case (A.12/03) MOD rejected a request for information on accidents and incidents involving nuclear weapons. The Ombudsman found that the public interest would best be served by disclosing the information and, following a series of meetings, MOD agreed. The third case (A19/04), which was partly upheld, related to the cost of refurbishing MoD's Main Building.
Three Cabinet Office cases covered information directly relating to government ministers. The first (A.21/03) related to a refusal to provide information about contact between ministers and representatives of a trade association. The Ombudsman upheld the complaint and the Cabinet Office agreed to disclose the information. In the second case (A.25/03) a parliamentary researcher complained that he had been refused information about briefings prepared for ministers answering parliamentary questions (PQs). Following the Ombudsman's intervention, the Cabinet Office agreed to release the factual information contained in the briefing notes together with some of the comments. The third case (A.35/04) involved a journalist's request for the Attorney General's advice on the legality of military intervention in Iraq. The Ombudsman was satisfied that the information was covered by the Code exemption relating to legal professional privilege. There was no public interest test involved as the exemption was absolute. The complaint was not upheld. The question of whether the Government had waived its right to legal professional privilege when the Attorney General gave a statement of his views on the legality of the war to the House of Lords in March 2003 was a matter of law and not for determination by the Ombudsman.
The Ombudsman upheld a complaint relating to HM Treasury's refusal to release details of meetings with representatives of private companies attended by the Chancellor of the Exchequer, Treasury ministers and special advisers (A.15/04). She did not find that the Code exemptions relating to commercial confidence and the proper and efficient operations of a department, cited by the Treasury, were applicable in this case and recommended that the information should be released.
A request by a journalist to the Department of Health for information on the awarding of a contract to Powderject to supply a stock of smallpox vaccine (A.14/03) led to criticism of the Department by the Ombudsman. She said that her investigation had been beset with delays as the Department failed to play its part in the process. She said that the Department had shown a basic lack of understanding of the Code, which did not augur well for the treatment of similar complaints under the forthcoming Freedom of Information Act. Initially, the Department agreed to release information that was already in the public domain but either refused to disclose the rest or refused to address the Ombudsman's remaining recommendations. They subsequently disclosed the information, in full, to the complainant.
Notes to editors
- The Parliamentary Ombudsman, Access to Official Information: Investigations Completed July 2003 to June 2004, HC 701, 30 June 2004, 115pps
- Press copies of the reports are available from the Press Office: Tel: 0300 061 4996/3943, Fax: 0300 061 4067, e-mail press@ombudsman.org.uk. From 30 June you can also find them on the website www.ombudsman.org.uk
For more information contact the Press Office on 0300 061 4996
