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HM Treasury
Case No: A.15/04
Refusal to provide details of external meetings attended by the Chancellor of the Exchequer, Treasury Ministers and special advisers
Summary
Mr Matthew Taylor MP asked the Chancellor of the Exchequer, by means of a Parliamentary Question, for information about meetings between Treasury Ministers and special advisers and the representatives of private companies. He also asked for details of those whom the Chancellor of the Exchequer had met on official business in July 2001. The Chancellor said that it was not the Government’s practice to release such information. Mr Blackie asked for the same information as Mr Taylor, which the Treasury again declined to provide, citing Exemptions 7(b) and 13 of the Code. Mr Blackie sought a review and the Treasury maintained their refusal to provide the information. In responding to the complaint the Treasury said that their decision had been taken on the basis of central guidance that the exemptions quoted applied because the release of the information sought would harm the proper and efficient conduct of the department (Exemption 7(b)) and would constitute an unwarranted disclosure of commercial confidences which would harm the competitive position of a third party (Exemption 13). The Ombudsman found that the Treasury had not made the case for Exemption 7(b). She also found that Exemption 13 did not apply, since the purely factual information sought was not likely to have any intrinsic commercial value. She recommended that the information be released. The Treasury accepted that recommendation, although reserving the right to consider future cases on their merits. The Ombudsman considered this to be a satisfactory outcome to a justified complaint.
1. Mr Blackie complained that HM Treasury (the Treasury) have refused to supply him with information that should have been made available to him under the Code of Practice on Access to Government Information (the Code). I have not put into this report every detail investigated by the Ombudsman’s staff but I am satisfied that no matter of significance has been overlooked.
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Background to the complaint
2. On 4 February 2002, the Prime Minister answered a Parliamentary Question asking why, contrary to normal practice, information had been released about meetings between the Department of Trade and Industry (DTI) and Enron (Official Report, column 689W). The Prime Minister confirmed that, as with previous Administrations, it was not normal practice to provide details of ministerial meetings but that on that occasion, because unsubstantiated and unjustified allegations had been made against the Government it was thought right to make clear, without setting a precedent, where there had been meetings with DTI as they were the lead Department dealing with energy policy.
3. On 11 February 2002, by means of a Parliamentary Question, Mr Matthew Taylor MP asked the Chancellor of the Exchequer:
(i) what meetings had taken place between Ministers in his department and employees of Citigate since June 2001;
ii) if he would list the meetings that Ministers in his Department had had since 1 January 2000 with representatives of (a) Chevron, (b) Texaco, (c) Phillips Petroleum, (d) IMC Global, (e) TXU and (f) CMS;
(iii) what meetings (a) Ministers and (b) special advisers had had with senior members of energy companies since 7 June 2001;
(iv) if he would list the dates of meetings that (a) special advisers and (b) Ministers in his department had had since 1 January 1999 with representatives of Global Crossing;
(v) if he would list the meetings that (a) Ministers and (b) special advisers in his department had had since 7 June 2001 with representatives of Seeboard;
vi) pursuant to his answer of 4 February 2002 (Official Report, columns 704-05W) if he would list the attendees of each meeting with individuals external to the Government he attended in his official capacity in July 2001; and
(vii) on which dates in July 2001 he met (a) trade unions or their representatives and (b) employees of private companies or their representatives in his official capacity.
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4. In response, the Chancellor of the Exchequer said that Ministers and civil servants had meetings with a wide range of organisations and individuals as part of the process of policy development and analysis. He referred to the answer given by the Prime Minister on 4 February 2002 (paragraph 2 above) repeating that, as with previous Administrations, it was not the Government’s practice to provide details of all such meetings. He said that all such contacts were conducted in accordance with the Ministerial Code, the Civil Service Code and Guidance for Civil Servants: Contacts with Lobbyists.
5. On 14 February 2002 Mr Blackie wrote to the Treasury under the terms of the Code, asking for access to the same information as that sought by the Member. Mr Blackie said he believed that the release of the Enron information (paragraph 2 above) did set a precedent since the Government had conceded that there was no point of principle (although he recognised that there might be reasons in particular circumstances) for not giving out such information. On 19 March the Treasury acknowledged Mr Blackie’s information request, and apologised for the delay in replying to him.
6. On 4 July 2002 Mr Blackie wrote to the Treasury saying that he had yet to receive a reply to this and other information requests that he had made. He sent a further reminder on 13 August. On 14 August the Treasury said that they had replied to him on 3 May but this turned out to have been a reply to a different information request. The Treasury then said that they would aim to reply as soon as possible to the outstanding request.
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7. The Treasury replied substantively to Mr Blackie on 13 November 2002. They apologised for not replying sooner and said that they had been unable to trace a record of his earlier information request in their files. They said that, in general, they considered that information relating to meetings between Ministers in the Treasury and employees of various companies was exempt from disclosure under the Code, and cited Exemptions 7(b) and 13. They considered that the release of the information sought would harm the proper and efficient conduct of the department and would constitute an unwarranted disclosure of commercial confidences which would harm the competitive position of a third party. They said that it was normal practice for departments not to release details of specific meetings and that they were satisfied that the harm resulting from disclosure of the information would not be outweighed by the public interest in disclosure. They offered to look at Mr Blackie’s information request in the light of that general approach if he resubmitted his original request.
8. On 18 November 2002 Mr Blackie sent the Treasury copies of the previous correspondence, seeking an internal review. He said that the release of the information required was unlikely to constitute an unwarranted disclosure of commercial confidence or damage the proper and efficient conduct of the department because it was merely a request for the dates and attendees of meetings with specific companies. He said that, in the unlikely event that it did constitute a disclosure of commercial confidences in any particular case, it was clear that that argument could not apply to each meeting he had requested information about. He asked the Treasury to consider the test of public interest versus the harm of disclosure of information in respect of each of those meetings.
9. On 23 June 2003 the Treasury wrote to Mr Blackie, apologising for the delay in replying. They said that they had decided not to conduct an internal review, and reiterated the grounds given in their letter of 13 November 2002 (paragraph 7 above) for refusing to provide Mr Blackie with the information that he sought. They also said they were satisfied that the harm which would result from disclosure of the information was not outweighed by the public interest in disclosure, and told Mr Blackie that he had the right to take his case to the Ombudsman.
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Departmental comments on the complaint
10. The Permanent Secretary of the Treasury said that Mr Blackie’s information request was one of a number of requests for details of ministerial meetings received in 2002. He said that the Treasury’s decision to withhold the information requested by Mr Blackie was taken on the basis of central guidance prepared by the Cabinet Office and issued by the then Lord Chancellor’s Department (now the Department for Constitutional Affairs) in August 2002. That guidance said that departments should say that they regarded information relating to contacts between Ministers and officials and representatives of outside organisations as exempt from disclosure under the Code, and that Exemptions 7(b) and 13 applied because the release of the information sought would harm the proper and efficient conduct of the department and constitute an unwarranted disclosure of commercial confidences which would harm the competitive position of a third party. The guidance went on to advise departments to say that it was not their normal practice to release details of specific meetings and contacts, and to say that they were satisfied that the harm which would result from releasing the information sought was not outweighed by the public interest in disclosure. The Permanent Secretary said that the delay in receiving the central guidance was largely responsible for the delay in responding to Mr Blackie’s initial information request. He expressed regret that the Treasury had not been able to respond more promptly and said that they had apologised to Mr Blackie for the delays.
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The Code of Practice on Access to Government Information
1. Since the Code came into force in April 1994 the Ombudsman has been able to consider complaints that, in breach of its requirements, bodies within the Ombudsman’s jurisdiction have refused to provide information which 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 Code. The Code gives no right of access to documents: the right, subject to exemption, is only to information. Both the Ombudsman and her predecessors, however, have taken the view that the release of the actual documents was often the best way of making available information which the Ombudsman recommended should be disclosed.
12. The Department for Constitutional Affairs have responsibility for overseeing the operation of the Code. That responsibility includes the provision of guidance. In cases where the request involves the disclosure of information about the conduct of ministerial affairs, the Department for Constitutional Affairs are required to refer the matter to the Cabinet Office for advice.
13. In refusing to provide the information sought by Mr Blackie, the Treasury cited two exemptions of the Code. Exemption 7(b) comes under the heading, ‘Effective management and operations of the public service’ and reads: ‘
(b) Information whose disclosure would harm the proper and efficient conduct of the operations of a department or other public body or authority, including NHS organisations, or of any regulatory body.’
14. Exemption 13 of the Code is headed, ‘Third party’s commercial confidences’ and reads:
‘Information including commercial confidences, trade secrets or intellectual property whose unwarranted disclosure would harm the competitive position of a third party.’
15. In the preamble to Part II of the Code, under the heading ‘Reasons for Confidentiality’, it states that:
‘In those categories which refer to harm or prejudice, the presumption remains that information should be disclosed unless the harm likely to arise from disclosure would outweigh the public interest in making the information available.
References to harm or prejudice include both actual harm or prejudice and risk or reasonable expectation of harm or prejudice. In such cases it should be considered whether any harm or prejudice arising from disclosure is outweighed by the public interest in making information available.’
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Investigation
16. Since the Code came into force on 4 April 1994 it has been accepted practice that the Ombudsman’s right of access to information and documents under the Parliamentary Commissioner Act 1967 will apply equally to investigations carried out in relation to complaints under the Code. Some of the information sought by Mr Blackie accompanied the Permanent Secretary’s response of 5 September 2003 to the Ombudsman’s request for his comments on the complaint. The Permanent Secretary said that the remainder would be provided as soon as possible. In practice, and despite frequent reminders to the Treasury, the last item of information was not provided until 3 December. Such a delay was unfortunate, in particular given that in July 2003 the Ombudsman had issued, in conjunction with the Cabinet Office, a Memorandum of Understanding on how departments are expected to handle information requests under the Code and on how to respond to Code investigations carried out by the Ombudsman (see Annex A to the ‘Government response to the Public Administration Select Committee’s Third Report of Session 2002-03 Ombudsman Issues HC448 (CM 5890)’). The Memorandum made it clear that departments are expected to respond in full to a statement of complaint issued by the Ombudsman within three weeks. In this case, that statement was issued on 31 July. The Permanent Secretary has explained that the Treasury had experienced difficulty in accessing old diary files which had been archived and a further delay was caused by the need to track the Ministers who had been in post for the period covered by the information request, which had encompassed several changes of office. While I recognise that the information requested was not readily accessible, I am nevertheless disappointed that it took over seventeen weeks for the Treasury to provide it to the Ombudsman.
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Assessment
17. Before considering the question of whether or not Mr Blackie is entitled, under the Code, to the information he has requested, I shall look first at how the Treasury handled his information request. In that context, I draw attention to paragraph 5 of Part 1 of the Code, which is headed ‘Responses to requests for information ’, and reads:
‘Information will be provided as soon as practicable. The target for response 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.’
18. Mr Blackie first made his information request on 14 February 2002, and the Treasury acknowledged it on 19 March. Despite reminders from Mr Blackie on 4 July and 13 August, they did not reply to him until 13 November, saying that they had been unable to trace his original information request. Even allowing for the fact that they had misplaced Mr Blackie’s original correspondence, it nevertheless took the Treasury three months to respond to his reminder and over seven months to reply to his request for a review of their decision. While the Permanent Secretary suggests that the delay in replying was largely caused by the need to await Cabinet Office advice, that advice was issued to departments on 8 August 2002, and it is therefore not clear to me why the Treasury did not write to Mr Blackie until 13 November 2002. At the time of Mr Blackie’s review request on 18 November 2002 the Treasury had already been in possession of the central advice they needed for some three months, and I find it hard to see how that advice could be responsible for the Treasury then delaying their response until June 2003. I therefore criticise the Treasury for the way in which they have dealt with this matter and I sought the Permanent Secretary’s assurance that he would ensure that in future his staff would abide by the principles and procedures set out in the Code and confirmed in the recently agreed Memorandum of Understanding (see paragraph 16 above). In reply, the Permanent Secretary said that he fully accepted that the Treasury did not respond to Mr Blackie’s information request as promptly as they should have. He said that the initial six-month delay in receiving advice from the Cabinet Office had been compounded by a failure to identify that the advice given applied to Mr Blackie’s case and by faults in internal procedures, which had now been revised in direct response to this case. The Permanent Secretary also said that he was keen to ensure that the Treasury learned the appropriate lessons from this case; as a result they were issuing new guidance on dealing with access to information requests. I welcome these developments.
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19. I now turn to the substantive issue of the disclosure of the information sought by Mr Blackie. I shall first look at Exemption 7(b) (paragraph 13), which is intended to prevent the disclosure of information where such a disclosure would be damaging to the work of the department concerned. The Treasury have given no reasons for their belief that the disclosure of the particular information requested by Mr Blackie would damage their work. In the absence of any specific reasons as to why disclosure would harm the efficient conduct of the Treasury, I do not consider that Exemption 7(b) of the Code can be held to apply.
20. The Treasury have also cited Exemption 13 of the Code, saying that the release of the information sought by Mr Blackie would constitute an unwarranted disclosure of commercial confidences, which would harm the competitive position of a third party. While Exemption 7 is concerned with the harm that disclosure of information may cause to the department holding the information, Exemption 13 is concerned with the harm that disclosure may cause to those to whom the information relates and, more specifically, to their competitive position. In assessing the Treasury’s refusal to provide Mr Blackie with the information he seeks I, therefore, need to establish whether that information can accurately be described as a commercial confidence and whether its disclosure would be likely to harm the competitive position of the companies concerned or any other third party. The essential point here is whether or not the information can be described as both commercial and confidential; and crucial to that consideration is the question of whether or not the information has value to its original possessor.
21. Bearing that in mind, I think it would be helpful to look again at the information Mr Blackie is seeking. His request is for purely factual information about what meetings had been held between the Chancellor of the Exchequer, Treasury Ministers and special advisers and a number of companies and other parties. Mr Blackie has not, for example, asked for details of the discussion that took place during any such meetings. I find it difficult to see how that purely factual information can be described as having any intrinsic commercial value and thus fall within the wording of the exemption. That being so, it follows that the information sought by Mr Blackie is not covered by Exemption 13, and I do not need to go on to consider whether any potential harm which might be caused by its release would outweigh the public interest in its release.
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22. For the reasons given above, I do not consider that the Treasury were justified in withholding the information sought by Mr Blackie under the terms of the Code. I therefore recommended to the Permanent Secretary that he now provide Mr Blackie with that information. I invited the Permanent Secretary, when considering his response, to have regard to the fact that the central guidance which formed the basis for the Treasury’s refusal to provide information (paragraph 10 above) is currently being revised as a result of the Ombudsman’s recommendations that information should be released in another similar complaint (our reference A.21/03). In reply, the Permanent Secretary said that the Treasury accepted my recommendations, and that his staff had written to Mr Blackie enclosing the information he had requested. The Permanent Secretary went on to say that the Treasury’s agreement related to the findings in this particular case, and that he reserved the right to look at further similar requests on their merits and in the light of the provisions of the Code. I am grateful for the Permanent Secretary’s acceptance of my recommendations.
Conclusion
23. I regard the Treasury’s willingness to disclose the relevant information to Mr Blackie in accordance with my recommendations to be a satisfactory outcome to a justified complaint.
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