Parliamentary Health Service Ombudsman / Special Reports / Access to Official Information / 6th Report Session 2002-2003

Mr Evans wrote to 17 Government departments asking for information relating to gifts accepted by their respective Ministers, covering the time period 1 January 1998 to 6 April 2001. The Lord Chancellor’s Department (LCD), now known as the Department for Constitutional Affairs, were responsible for co-ordinating the Government’s response but were, in turn, required to refer the matter to the Cabinet Office as the request covered the disclosure of information about the Ministerial Code. Following a delay of almost 16 months the Cabinet Office issued guidance to LCD stating that all the information sought should be withheld. LCD then promulgated this guidance, advising that Exemption 12 of the Code should be cited in justification. The Ombudsman criticised the Cabinet Office for the delay and the manner in which they had handled Mr Evans’s request. As regards the information sought, the Ombudsman found that Exemption 12 was not applicable to any of the information sought by Mr Evans and recommended that it be disclosed in full. In response, the Permanent Secretary to the Cabinet Office said that the Government had agreed that details of all gifts to Ministers, received since June 2001 and valued at over £140, would be disclosed. He added that, in future, departments would disclose this information proactively each year. However, he again declined to release any of the information sought by Mr Evans that was recommended for disclosure in the report.

1. Mr Evans complained that the Lord Chancellor’s Department (LCD) and the Cabinet Office refused to supply him with information which should have been made available to him under the Code of Practice on Access to Government Information (the Information Code). I have not put into this report every detail investigated, but I am satisfied that no matter of significance has been overlooked. LCD has now become the Department for Constitutional Affairs but I refer to LCD throughout this report.

The Information Code

2. In July 1993 the then Government published a White Paper entitled, ‘Open Government’, as part of the Citizen’s Charter programme. The White Paper contained proposals for, among other things, the creation of the Information Code. It also stated that the then Ombudsman had agreed that complaints that departments and other bodies within his jurisdiction had failed to comply with the Information Code could be investigated by him, if referred by a Member of Parliament in the usual way. When the Information Code came into force, on 4 April 1994, the then Ombudsman wrote personally to the permanent heads of the bodies within his jurisdiction about his new role to explain how, in accordance with arrangements already made with the Select Committee on Public Administration, he intended to operate under the new Code.

3. Since the Information Code came into force, the Ombudsman has been able to consider complaints that, in breach of the Information Code, bodies within the Ombudsman’s jurisdiction have refused to provide information that is held by them. Refusal to supply information might be justified if the information falls within one or more of the exemptions listed in Part II of the Information Code. The Information Code gives no right of access to documents: the right, subject to exemption, is only to information. Both my predecessors, however, took the view that the release of the actual documents was often the best way of making available information that the Ombudsman recommended should be disclosed. In accordance with paragraph 4.19 of the White Paper, they also accepted that refusal to release information which should have been released was sufficient to found a complaint to the Ombudsman. I can see no reason to depart from these established practices.

Jurisdiction

4. The Ombudsman can investigate complaints made under the Information Code against those central government departments and other bodies which are listed in Schedule 2 to the Parliamentary Commissioner Act 1967. The LCD and the Cabinet Office are so listed. The Ombudsman’s jurisdiction over the Cabinet Office does not extend to the Secretariats. I refer to them in this report only to place matters in context.

The Ministerial Code of Conduct (The Ministerial Code)

5. The Ministerial Code (A Code of Conduct and Guidance on Procedures for Ministers) was originally published on 31 July 1997. It updated the Questions of Procedure for Ministers published in 1992 under the previous Government. The Ministerial Code is the Prime Minister’s guidance to his colleagues on how they should conduct themselves while in Government. I have no jurisdiction over the content of the Ministerial Code, which is a matter for the Prime Minister. At the time of Mr Evans’s information request, the 1997 version was in force. A revised version was published on 20 July 2001. The parts of the 1997 Ministerial Code referred to in this investigation are:

" ‘126. It is a well established and recognised rule that no Minister or public servant should accept gifts, hospitality or services from anyone which would, or might appear to, place him or her under an obligation. The same principle applies if gifts etc are offered to a member of their family.

‘127. This is primarily a matter which must be left to the good sense of Ministers. But any Minister in doubt or difficulty over this should seek the Prime Minister’s guidance. The same rules apply to the acceptance of gifts from donors with whom a Minister has official dealings in this country as to those from overseas…., that is:

(a) Receipt of gifts should, in all cases, be reported to the Permanent Secretary;

(b) Gifts of small value (currently this should be put at up to £140) may be retained by the recipient;

(i) The recipient may purchase the gift at its cash value (abated by £140)

(ii) If the recipient wishes to reciprocate with, and pay for, a gift of equivalent value, the gift received may be retained

(iii) If the Department judges that it would be of interest, the gift may be displayed or used in the Department

(iv) If the disposal of the gift would cause offence or if it might be appropriate for the recipient to use or display the gift on some future occasion as a mark of politeness, then the gift should be retained in the Department for this purpose for a period of up to five years;

(d) Gifts received overseas worth more than the normal travellers’ allowances should be declared at importation to Customs and Excise who will advise on any duty and tax liability. In general, if a Minister wishes to retain a gift he or she will be liable for any tax or duty it may attract.

‘128. In the event of a Minister accepting hospitality on a scale or from a source which might reasonably be thought likely to influence Ministerial action, it should be declared in the House of Commons Register of Members’ Interests (or Register of Lords’ Interests in the case of Ministers in the House of Lords).’ "

Background

6. On 6 April 2001 Mr Evans wrote to seventeen Government departments requesting information about the acceptance of gifts and services by their respective Ministers. Citing the Information Code, he asked:

(a) how many times Ministers in each department had, since 1 January 1998, reported to the Permanent Secretary the receipt of gifts in accordance with paragraph 127 of the Ministerial Code;

(b) who donated the gift in each case;

(d) what was the nature of the gift in each case; and

(e) if the value of the gift was less or more than £140 in each case.

Mr Evans asked for a copy, in respect of each case, of the document in which the receipt of such gifts to the Permanent Secretary was reported.

7. Mr Evans also pointed out that the Ministerial Code required that no Minister should accept gifts, hospitality or services from anyone which would, or might appear to, place him or her under an obligation. He asked:

(a) how many times since 1 January 1998 Ministers in each department had sought the advice of the Prime Minister in this respect under paragraph 127 of the Ministerial Code;

(b) for what reason did Ministers seek the advice of the Prime Minister in each such case; and

8. Following his requests, Mr Evans received interim replies from several of the departments concerned. He was subsequently told that the LCD had been charged with the responsibility of co-ordinating the overall response. On 4 September 2001, still not having received a substantive reply, Mr Evans wrote to the LCD to suggest a solution to the apparent impasse. Following an exchange of e-mails, the LCD told Mr Evans that they were unable to provide him with a substantive response because they were still awaiting the outcome of consultations with the Cabinet Office.

9. At the time that Mr Evans made his information request, the Home Office had responsibility for the Information Code. That responsibility included acting as the co-ordinating department for requests of this kind. The Corporate Services Secretariat of the LCD(CSS) are responsible for their compliance with the Information Code; and it was they who, having received Mr Evans’s request, originally referred the matter to the Home Office Freedom of Information/Data Protection Unit (FIDPU) for guidance. The FIDPU were, in turn, required to refer the matter to the Cabinet Office Central Secretariat (the Central Secretariat) as the request involved the disclosure of information about the Ministerial Code.

10. Having assumed responsibility for the Information Code in June 2001, the LCD’s own Freedom of Information and Data Protection Division (FIDP) took over the task of co-ordinating the response to Mr Evans’s request. In the following months officials within the FIDP chased the Central Secretariat on a regular basis for the outstanding guidance, but without success. On 21 January 2002 a CSS official made a submission to the Permanent Secretary and the Director of the FIDP which set out his growing concerns about the CSS’s inability to respond to Mr Evans’s request. On 22 January the Director of the FIDP also made a submission to the Permanent Secretary, building on the earlier note, in which he set out the problem faced by the FIDP, namely that they were unable to disseminate guidance in this case to departments because none had been forthcoming from the Central Secretariat.

11. Over the following months the FIDP continued to chase the Central Secretariat for guidance on this and several other outstanding information requests from the same complainant. On 18 April the same CSS official put up a further submission to the Permanent Secretary and the Director of the FIDP in which he recommended, in view of the continuing delay in obtaining guidance from the Central Secretariat, that the matter be raised with the then Secretary of the Cabinet. The submission also considered the information request and recommended that the factual information sought by Mr Evans (ie (a) to (e) - see paragraph 6) should be disclosed. However, the remainder should be withheld, citing Exemptions 2 and 12 of the Information Code. (Note: Exemption 2 is headed ‘Internal discussion and advice’ and was not cited in the end by either department as being applicable to any of the information sought by Mr Evans. Exemption 12 is headed `Privacy of an Individual’ and reads: ‘Unwarranted disclosure to a third party of personal information about any person (including a deceased person) or any other disclosure which would constitute or could facilitate an unwarranted invasion of privacy’.) The submission also argued that, given the line previously taken by the Home Secretary in another case (see A28/01 - Mr Andrew Robathan MP: Access to Official Information: Declarations Made Under The Ministerial Code Of Conduct, HC 353), it could now be said that it was the Government’s policy that information relating to the Ministerial Code should not be subject to the Information Code. The CSS official went on to say that, if this was the case, then consideration should perhaps be given to amending the Information Code accordingly. The submission contained, as an annex, a table which included the information that the CSS official felt should be released to Mr Evans.

12. On 22 April the Permanent Secretary wrote to the then Secretary of the Cabinet expressing his concern that the LCD, along with many other departments, were still waiting for advice on how to answer Information Code requests relating to the Ministerial Code. He enclosed a copy of the CSS official’s note and asked if the then Secretary of the Cabinet was content for the LCD to proceed in this way. On 29 April the then Secretary of the Cabinet wrote to the Permanent Secretary, saying that the Cabinet Office were finalising the guidance and that the LCD would receive it within the next day or two for circulation to all departments. On the same day a Central Secretariat official e-mailed a Senior Policy Advisor in the Prime Minister’s Office asking for her views on the draft guidance drawn up within the Cabinet Office. This guidance recommended the release of the factual information contained within the first strand of Mr Evans’s request (parts (a) to (e) - see paragraph 6) as the Cabinet Office agreed with the LCD that there was no justification for not releasing this. However, the guidance recommended that the other information sought by Mr Evans should be refused. On that same day the Senior Policy Advisor replied, agreeing with the approach as set out in the draft guidance.

13. On 1 May the Central Secretariat official e-mailed the FIDP and asked for their views on the draft guidance, in particular about the idea of applying a ‘de minimis’ limit on the value of the gifts to be disclosed and about the appropriate time period the information should cover. On the same day a further e-mail followed in which the same Central Secretariat official said that it was now the view within the Cabinet Office that a threshold should be set above which information should be released; and that this should be £125 as this was the current figure in operation for the House of Commons Register of Interests. On 2 May the FIDP Policy Manager replied, setting out the problems as he saw them with the draft guidance and its correlation with the requirements of the Information Code.

14. On 28 May the Director of the Central Secretariat sent an e-mail to a Senior Policy Advisor in the Prime Minister’s Office, copied to a further Central Secretariat official and also to the Prime Minister’s Chief of Staff, setting out her concerns about the latest version of the draft guidance on how to answer this and other outstanding information requests. The Director said that she was in favour of releasing all the information on gifts with a value of over £125. On 30 May the Prime Minister’s Chief of Staff replied, confirming that the then Secretary of the Cabinet had also raised the issue with him. The Prime Minister’s Chief of Staff said that he was not in favour of disclosing any of the information sought. This was not because the rules had not been scrupulously applied, but because of the likely media reaction to the publication of a “huge list of gifts” received from other governments, and the potential embarrassment such publication might cause to both our Government and the donor Government.

15. On 31 May the Director of the Central Secretariat telephoned the FIDP Policy Manager to discuss the matter of the outstanding guidance and how best to take the matter forward in the light of the advice received from the Prime Minister’s Chief of Staff. The Director said that she was aware of the problems that this latest advice would cause departments in responding to the outstanding information request, and she recognised that it would be very difficult to avoid it reflecting badly on the Cabinet Office. The outcome of the discussion was that the FIDP agreed to take up the matter direct with the Lord Chancellor. The Policy Manager also requested that the Cabinet Office confirm, in writing, their view (which was now, in effect, their guidance) that no information should be released. Later that same day the Director e-mailed the Policy Manager to confirm, officially, that it was the view of the Cabinet Office that none of the requested information should be released to Mr Evans.

16. On 10 June the Director of the FIDP made a submission to the Permanent Secretary and the Lord Chancellor in which he raised the possibility of the Lord Chancellor discussing the matter of the Cabinet Office guidance with the Prime Minister. The Director said that, after nine months of delay, the FIDP had now been advised that no information should be disclosed to Mr Evans, and that further discussion at official level would be unproductive because the decision had been taken at a senior level in the Prime Minister’s Office. (The Director noted also that Mr Evans had recently asked the Member to refer this matter to my Office.)

17. On 18 June the Director of the FIDP again minuted the Lord Chancellor and the Permanent Secretary regarding this and a number of other outstanding information requests covered by the Cabinet Office draft guidance. The Director said, in relation to the acceptance of gifts worth more than £140, that the position was clear; such gifts had to be entered into the Register of Members’ interests. The Director said that, in his opinion, the LCD were on more difficult ground in refusing to disclose any information about gifts worth less than £140. Although there were a number of exemptions that might be cited in justification, he was doubtful if any of them would withstand prolonged scrutiny. The Director suggested that he and the Director of the Central Secretariat should look at the two Codes and propose amendments which would remove from the ambit of the Information Code any information relating to the operation of the Ministerial Code.

18. On the same date the then Secretary of the Cabinet made a submission to the Prime Minister about the draft guidance. The then Secretary of the Cabinet said that he thought there were strong arguments against a blanket refusal to release any of the requested information, and suggested that a continued refusal along these lines would be likely to result in a high profile appeal to the Ombudsman. Given that, the then Secretary of the Cabinet recommended that information relating to gifts valued at more than £125 be released, as there was then a read-across between the Ministerial Code and the Register of Members’ Interests, as gifts worth more than £125 had to be disclosed in the Members’ Register.

19. On 5 July the Lord Chancellor wrote to the Prime Minister, following further discussion within the LCD, setting out his views about how to respond to Mr Evans’s information request. The Lord Chancellor identified three options: to disclose the relevant information; to claim exemptions under the Information Code; or to amend the Information Code to exclude from its ambit information that was covered by the Ministerial Code.

20. In respect of the first option, the Lord Chancellor said that he did not believe that disclosing the information would cause any harm. He said that it was customary, under this and previous Governments, for Ministers receiving courtesy calls from visiting Ministers from abroad to be offered and to accept gifts from the visitor. Most of these gifts were given as a courtesy, and did not reflect any desire to purchase influence. The Lord Chancellor said that he would be perfectly happy to disclose the comprehensive list of gifts received in his Department over the period in question. He went on to say that he did not think there was anything in the list that would merit claiming any exemptions under the Information Code; and he assumed that the lists of most other departments would be similar. The Lord Chancellor went further by recommending that each department volunteered such information on an annual basis as this would ensure that donors knew, when they offered gifts to Ministers, that there was transparency in the system and that their gifts would become public knowledge.

21. As far as the second option was concerned, the Lord Chancellor said that it seemed likely that the Ombudsman would reject most, if not all, of the claims for exemption. The Lord Chancellor said that, whatever expressions of confidentiality or privacy had been made when the gifts were received, there was a likelihood that the Ombudsman would find that the public interest in good governance and the avoidance of suspicion of improper influence on Ministers would require that the information be disclosed; he thought that it would be very difficult to resist such a recommendation.

22. On the third option, the Lord Chancellor said that, if it was the Prime Minister’s view that no information on this subject could be disclosed, the Government should recognise that they faced the possibility of a succession of adverse reports from the Ombudsman. The Lord Chancellor said that, in this case, the possibility should be considered of amending the Information Code to exclude from its ambit information covered by the Ministerial Code.

23. On 18 July the Senior Policy Advisor in the Prime Minister’s Office wrote to the LCD stating that the Prime Minister had considered the advice received from both the Lord Chancellor and the then Secretary of the Cabinet. With regard to the information sought by Mr Evans, she said:

‘… On the fourth element relating to gifts the journalist should be referred to the information that is already in the public domain which would be contained, where relevant in the Register of Members’ Interests and the Central Assets Register. As far as I am aware no code exemption is really relevant here and as we are referring the journalist to publicly available information it would not make sense to try and claim an exemption on this part of the request. It has also never been the practice to disclose internal management information of this kind ...’.

The Senior Policy Advisor concluded that the case should not have taken over a year to resolve and that any reply given to the journalist should apologise for the delay.

24. On 22 July my predecessor, having had Mr Evans’s complaint referred to him by the Member, issued a statement of complaint to the Permanent Secretaries of the LCD and the Cabinet Office, inviting their comments by 9 August. On 29 July the Director of the FIDP made a submission to the Lord Chancellor and the Permanent Secretary, copied to various other senior LCD officials, concerning the guidance received from the Prime Minister’s Office. He said that the guidance failed to address the main point of the Lord Chancellor’s letter (paragraphs 19-22), which was what to do about information relating to gifts valued at less than £140 and not therefore recorded in the Register of Members’ Interests. The Director said that, in effect, the LCD remained in the same position as a year ago in that the ‘centre’ did not want the LCD to disclose any information about the gifts, but was unwilling to advise the LCD on how they might justify such a decision within the terms of the Information Code. The Director advised that the Lord Chancellor should write again to the Prime Minister, strongly recommending that the information sought be disclosed because the grounds for claiming the various exemptions ranged, in the Director’s opinion, “from the weak to the non-existent”.

25. On the same day, having discussed the matter with the Senior Policy Advisor in the Prime Minister’s Office, the Director of the FIDP made a further submission to the Lord Chancellor and the Permanent Secretary. The Director said he now understood that the view within the Prime Minister’s Office was very clear in that information that it was not necessary to disclose under the Ministerial Code was not to be disclosed under the Information Code. The Director recommended, in the light of that, that the LCD cite Exemption 12 of the Information Code (see paragraph 11) as being applicable to the information sought by Mr Evans. On 8 August the LCD wrote to all departments on this basis, as well as providing advice on how to respond to a number of other information requests for which central guidance had been sought.

The Permanent Secretary’s comments on the complaint

26. On 8 August 2002 the Permanent Secretary of the LCD responded to the Ombudsman’s Office on behalf of both the LCD and the Cabinet Office. He said that, as Mr Evans had sought information under the Information Code from most central government departments, central guidance was sought in accordance with normal practice so that a consistent approach could be adopted. Central responsibility for the Information Code had transferred to the LCD from the Home Office on 8 June 2001. The Permanent Secretary said that, as Mr Evans’s request related to the Ministerial Code, LCD officials had needed to consult the Cabinet Office before guidance could be issued, as they had responsibility for the Ministerial Code. The Permanent Secretary said that Mr Evans’s request related to sensitive information, and it was right that a collective view on disclosure should be taken at senior levels within Government.

27. The Permanent Secretary said that he very much regretted that it had taken such a long time to reach a view on Mr Evans’s request. However, LCD officials had tried to keep him informed of where matters stood: he acknowledged that Mr Evans had shown considerable patience in waiting as long as he had. The Permanent Secretary said that he could now offer the following response to Mr Evans’s request: ‘… Some information about valuable gifts is already in the public domain. Information which Ministers are required to disclose under the Code of Conduct is set out in the Register of Members’ Interests, or in cases where gifts of value have been retained by Departments, in the Central Assets Register. These documents are publicly available. If Mr Evans has difficulty in finding this information he should contact my officials. The Central Assets Register is available on the internet."

28. As far as the information which Ministers were not required to make available under the Ministerial Code was concerned, the Permanent Secretary said that he was satisfied that Exemption 12 of the Information Code applied. The Permanent Secretary believed that it would be an unwarranted invasion of Ministers’ privacy for them to disclose information which they were not required to disclose under the Ministerial Code. The Permanent Secretary said that the Ministerial Code set out the circumstances in which it was in the public interest for information to be disclosed; and there were, therefore, no public interest grounds for overturning the exemption in a case where the Ministerial Code did not require disclosure. The Permanent Secretary said that the key issue which had to be considered in relation to the Ministerial Code was whether or not the rules were being followed appropriately and the maintenance of a gifts list assisted departments in that process. The Permanent Secretary added that the LCD also had to consider the impact that publishing such a list might have on those who had donated the gifts; it could potentially subject them to intense scrutiny even though the gifts had been given without any intention of seeking publicity.

Assessment

29. Before considering the substantive question of the information requested, I shall look first at the way in which the LCD and the Cabinet Office handled Mr Evans’s request for information. In this context, I draw attention to paragraph 5 of Part I of the Information Code, which is headed ‘Responses to requests for information’ and reads:

‘Information will be provided as soon as practicable. The target for responses to simple requests for information is 20 working days from the date of receipt. This target may need to be extended when significant search or collation of material is required. Where information cannot be provided under the terms of the Code, an explanation will normally be given.’

30. At the time Mr Evans made his request, the FIDPU had responsibility for co-ordinating a response to it; and it was they who originally referred the matter to the Central Secretariat for guidance (paragraph 9). When this request reached them the Central Secretariat were still considering the issues raised by the very similar case referred by Mr Andrew Robathan MP (see paragraph 11). Once LCD assumed responsibility for co-ordinating a response (in June 2001) they began to chase the Central Secretariat, but without success.

31. I accept that Mr Evans’s request was not of the simple kind that the Information Code envisages being answered within 20 working days. However, it is clear from the papers I have examined that the LCD, and a number of other departments which were obliged to refer the request for central guidance, had formed the view very early on that information relating to at least some parts of Mr Evans’s request (effectively parts (a) to (e) - see paragraph 6) ought to be released. In anticipation of that, the CSS began collating this information, and they were, in fact, in a position to respond to Mr Evans with it by the end of May 2001. It is clear therefore that the delay from 18 April 2001, the date of the second submission, to 8 August 2002, the date on which the central guidance was finally disseminated (a period of nearly 16 months), was caused by the Cabinet Office.

32. As my predecessor has said, delay in securing information often deprives it of value: any delay by departments in answering information requests is, therefore, regrettable. However, a delay of almost 16 months in providing guidance to seventeen Government departments on a matter such as this is unacceptable. I am critical of the Cabinet Office for the length of time it took them to provide central guidance in this case. It is even more unacceptable because this delay made it impossible for all the other concerned departments (several of which believed that some, if not all, of the information should be released) to meet their obligations under the Information Code. As I had received no direct comments from the Permanent Secretary of the Cabinet Office on this aspect of the complaint, I asked him what steps he had taken, or was proposing to take, to ensure that such a delay in providing central guidance would not happen again in the future. In reply, the Permanent Secretary said that he regretted the delay in providing guidance in this case. He said that, although the issues raised were difficult ones, it was clearly unacceptable for the Cabinet Office to have delayed matters as long as they did. The Permanent Secretary said that officials from both the Cabinet Office and the LCD were working with members of my staff to produce a protocol on handling future cases relating to the Information Code, for distribution to all departments and bodies subject to that Code, with the aim of facilitating compliance with its provisions. The Permanent Secretary said that, as soon as the protocol was agreed, it would be circulated widely. He added that, when issuing it within his own Department, he planned to make clear to his staff the need to ensure that it was observed and, in particular, that they should meet the timescales set out in the Information Code in future cases.

33. I turn now to the guidance itself (paragraph 23). My predecessors have said that it is good practice, if departments refuse requests for information, for them to identify in their responses the specific exemptions in Part II of the Information Code on which they are relying. It is clear from the papers I have examined that the FIDP were, entirely reasonably, expecting guidance from the Cabinet Office which would meet this requirement. I can therefore well understand the frustration felt within the LCD (and, in particular, in the FIDP) when, having waited almost 16 months, the guidance eventually provided to the FIDP failed to address the issues clearly highlighted by the LCD in their various submissions to the Cabinet Office during that period.

34. In my view that central guidance was wholly inadequate. The rationale behind the production of central guidance in cases such as this is not only to ensure that a consistent approach is taken across government, but also that the agreed approach, whatever it might be, meets the requirements of the Information Code. It is clearly not acceptable, as happened in this case, for the guidance simply to instruct departments to withhold information but, initially, to offer no justification under the Information Code for doing so. I am equally concerned that, when the Director of the FIDP raised the matter of the obvious inadequacy of the advice with the Senior Policy Advisor, he was again told that information which is not required to be disclosed under the Ministerial Code is not to be disclosed under the Information Code. It was then left, in effect, to the Director of the FIDP to find an Information Code exemption with which to justify this decision, despite the Director and senior LCD officials having already given their opinion that the refusal to release this information was not justifiable in Information Code terms. I asked the Permanent Secretary of the Cabinet Office what steps he had now taken to ensure that central guidance issued by his Department in relation to Information Code requests would be provided in accordance with its requirements. In reply, the Permanent Secretary said that this would be reinforced when the proposed protocol was agreed (paragraph 32).

35. I turn now to the question of the information sought by Mr Evans (see paragraphs 6 and 7). As I said in paragraph 3, although the Code gives no right of access to documents, my predecessors took the view that the release of documents was often the best way of making available information recommended for disclosure. The Cabinet Office guidance issued in this case was that information which is not required to be disclosed under the Ministerial Code should not be disclosed under the Information Code (paragraph 25). In Information Code terms the Permanent Secretary said that it would be an unwarranted invasion of Ministers’ privacy for them to have to disclose information which they are not required to disclose under the Ministerial Code (paragraph 28). However, as the CSS official pointed out in his submission of 18 April (paragraph 11), the Information Code contains no such class exemptions. The Information Code requires an assessment to be made in response to each individual information request. The approach to the release of information should, in all cases, be based on the assumption that information will be released except where its disclosure would not be in the public interest, as specified in Part II of the Information Code. In considering the interface between the requirements of the two Codes, I note, in particular, point (iv) of the foreword to Chapter 1 (Ministers of the Crown) of the Ministerial Code which states: "… Ministers should be as open as possible with Parliament and the public, refusing to provide information only when disclosure would not be in the public interest, which should be in accordance with relevant statute and the Government’s Code of Practice and (sic) Access to Government Information (Second Edition, January 1997) ...".

36. In my view this statement, which is repeated in the revised version of the Ministerial Code issued in July 2001, makes it quite clear that any decision to refuse to provide information must be taken in accordance with the requirements of the Information Code. Matters pertaining to the Ministerial Code do not, therefore, fall outside the jurisdiction of the Information Code, a fact repeatedly pointed out by the LCD in their correspondence with the Cabinet Office. That the information sought in this case is of the type which Ministers are not required to disclose under the Ministerial Code does not mean that it automatically falls within the scope of Exemption 12 or any other exemption; or that disclosing the information must automatically be assumed not to be in the public interest. Any such case must be made on its individual merits.

37. I consider now, therefore, the applicability of Exemption 12 to the information sought by Mr Evans as this is the only exemption which has been cited. However, it might first be helpful to address the issue of information already in the public domain. The Permanent Secretary has confirmed that some information about valuable gifts is already in the public domain. The Ministerial Code stated that gifts retained by Ministers worth in excess of £125 are required to be disclosed in the Register of Members’ Interests (Note: this figure was raised to £550 on 15 May 2002). The Permanent Secretary also said that gifts of value which are retained by departments are shown in the Central Assets Register. Having studied the most recent edition of the Central Assets Register I am unsure how much, if any, of the information sought by Mr Evans could be made available to him through the perusal of this document. Section 5 of the Central Assets Register, which covers all the Lord Chancellor’s Departments, contains no information relating to gifts presented to Ministers and retained by the Department. Section 15 of the Register, which relates to the Cabinet Office, contains a paragraph which covers ‘donated assets’. This paragraph gives two figures, one for the total value of items of jewellery presented to serving Prime Ministers, both past and present, the other a total valuation covering all other items. No details are provided about individual gifts. Given these facts, I cannot see that either Section 5 or Section 15 of the Central Assets Register will give Mr Evans any of the information he has sought.

38. As far as Exemption 12 of the Code is concerned, it is clear that the essential purpose of this exemption is to protect personal information, the disclosure of which would, or could, facilitate an unwarranted invasion of privacy (paragraph 11). The LCD have argued that it would be an unwarranted invasion of Ministers’ privacy for them to have to disclose information which they are not required to disclose under the Ministerial Code. But, this raises the question of whether the information being sought is personal information of the kind protected by this exemption. Paragraph 12.13 of the Guidance on Interpretation of the Code (the Guidance) lists information of the kind that the exemption is intended to protect: it includes (for example): the age, address or marital status of the individual; information relating to the health or medical history of the individual; and the personal opinions or views of the individual. The information at issue here, however, does not fall within any of these or related categories. The issue in this case is information relating to gifts made to Ministers. Gifts of this kind are routinely offered to and accepted by Ministers in their official capacity, not in their personal capacity, as a matter of diplomatic courtesy. It is not personal information as defined by the exemption. The release of information about these gifts cannot therefore be said to fall within the boundaries of Exemption 12 because the privacy criterion has not been met. At the time of this request, Ministers receiving gifts valued at more than £125 were required to declare them in the Register of Members’ Interests. If Exemption 12 is applicable, in principle, to information relating to such gifts then it must apply to all gifts irrespective of valuation. Clearly, and understandably, it is seen as proper that Ministers should publicly declare gifts of higher value; but there is no distinction, in principle, between a gift valued at £1 and one valued at £1,000: release of information about them is either personal information - the release of which breaches an individual’s privacy - or it is not. In my view, it is clear that the privacy of individuals in the sense meant by the exemption is not appropriate to this context. I do not therefore find that Exemption 12 applies.

39. I would add that I have not been presented with any evidence to suggest that such gifts had been made with any expectation or requirement of confidentiality. Much of the information sought by Mr Evans is of the kind freely disclosed in the past in response to similar requests. As an example, I quote a House of Commons written answer, dated 4 July 1995 and given by the then President of the Board of Trade, in which he stated: ‘A total of 237 gifts were accepted by DTI Ministers between 1 April 1994 and 31 March 1995. 119 of these gifts were retained by the Ministers and 118 became the property of the Department. Seven of these gifts were valued by the Department at more than £125. Of those seven, five became the property of the Department and two were purchased by the Minister, in accordance with the provisions of ‘Questions of Procedure for Ministers’ [see paragraph 5 of this report] by payment of the difference between the Department’s retail valuation and £125 limit.’ (PQ. 23784 Column 146). A breakdown for each Minister was also provided in a table of information. It should be noted that this information was released at a time when the Information Code was already in operation, but there was no suggestion that the information should have been withheld. I therefore see no reason why the information disclosed in this case, at a time when the Information Code was in operation, was not considered to be covered by Exemption 12, yet an identical request submitted today would result in the same information being withheld. On this basis I do not find, in principle, Exemption 12 to be applicable to any of the information sought by Mr Evans.

Further developments

40. On 24 January 2003 I submitted a draft report of my investigation to the Permanent Secretaries of both the Cabinet Office and the LCD. In this report I invited the Cabinet Office to supply to Mr Evans the information he had requested. Mr Evans does not have an entitlement under the Information Code to see actual documents and I do not therefore find that the Cabinet Office are obliged to supply him with copies of any of the documents in which Ministers reported the receipt of gifts. Clearly, however, the information that such documents contain will form part of the information that I have recommended the Cabinet Office should release. I also invited the Cabinet Office to issue revised guidance to the LCD to enable them, as the Department with responsibility for the Information Code, to advise those other departments which formed part of the original request that it would now be appropriate to release that information to Mr Evans in respect of their own Ministers.

41. In reply, the Permanent Secretary to the Cabinet Office said that the Government had agreed that details of all gifts to Ministers, received since June 2001 and valued at over £140, would be disclosed. He said that arrangements were in hand for this information to be disclosed centrally on behalf of all departments. He added that, in future, departments would disclose this information proactively each year. The Permanent Secretary pointed out that the level of £140 was lower than was required for disclosure in the Register of Members’ Interests (currently £550) and, in the Government’s view, this represented a proper balance between the need for the public to be satisfied that Ministers were not being improperly influenced by gifts and the placing of an onerous administrative burden on departments by requiring the recording of everything which might be regarded as a gift, however trivial.

42. The Permanent Secretary also apologised if the response provided to this Office in August 2002 (paragraphs 26 to 28) had not clearly set out the position in relation to Mr Evans’s request about consultations between Ministers and the Prime Minister under paragraph 127 of the 1997 Ministerial Code (paragraph 137 of the revised version). The Permanent Secretary confirmed that since June 2001, the period covered by the proposed publication referred to above, to the best of his knowledge there had been no occasions on which Ministers had consulted the Prime Minister about the acceptance of gifts.

43. On 14 March the Government published a list of all gifts given to Ministers, with a value of over £140, since June 2001. While I welcomed the publication of this information, together with the promise of continued publication on an annual basis, I felt it necessary to write to the Permanent Secretary to the Cabinet Office to clarify the position regarding the information requested by Mr Evans, which was not covered by this publication. In reply, the Permanent Secretary confirmed that the Government had no plans to publish either a list of gifts below £140 or to go back as far as January 1998 in order to meet that request. The Permanent Secretary said that the decision to only publish a list of gifts with a value over £140 from June 2001 (the start of the current Administration) was a reasonable and proportionate attempt to deal with the disclosure of the information requested and he hoped that it would be seen in that spirit. He confirmed that the Government would ensure that such a list was now published annually so that the information would always be in the public domain, which was a significant commitment. The Permanent Secretary said that the Government believed that gifts with a value below £140 could not be regarded as influencing Ministers’ decisions (and this was what the guidance in the Ministerial Code was seeking to prevent). The Permanent Secretary noted that the threshold for disclosure of gifts in the House of Commons was £550 while in the House of Lords it was £1,000.

Further assessment

44. However laudable the Government’s decision to now publish annually a list of gifts to Ministers with a value of over £140 might be, it does not provide Mr Evans with the information he is seeking. As I have set out in my assessment of Mr Evans’s information request, I can see no reason why, under the Information Code, all this information should not be released: there is a strong public interest in making it available, a fact that the publication by the Cabinet Office of related information about more expensive gifts clearly acknowledges. Certainly, there are no grounds for maintaining that such a disclosure to Mr Evans could be seen as constituting an unwarranted invasion of Ministers’ privacy in accordance with Exemption 12, as has previously been argued. Nor can I accept, under the terms of the Information Code, the imposition of a threshold figure under which no information is to be released. I have been presented with no explanation as to why, under the terms of the Information Code, the Government believe it to be justifiable to release information from June 2001 onwards but not to release any information covered by the period of Mr Evans’s request and I do not believe there to be any justification under the Information Code to continue to withhold that information.

Conclusion

45. I find that the one exemption of the Information Code cited on behalf of both Departments cannot be held to apply to any of the information sought by Mr Evans. I therefore uphold his complaint and recommend that the information should be disclosed to him. I am concerned and disappointed that the Cabinet Office feel unable to agree to my recommendation in its entirety and have refused to amend their guidance to the LCD (and thus to all other departments) accordingly.

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Last updated: 4 April 2005