Parliamentary and Health Service Ombudsman / Improving Services / Selected Cases / Access to Official Information / Investigations Completed July 2004

Mr Lamb asked the Prime Minister for a list of those he had entertained or otherwise met at Chequers on official business. In refusing to provide the information the Cabinet Office cited Exemptions 2, 7, 9 and 12 of the Code. The Ombudsman accepted that Exemption 9 applied to the details of those who the Prime Minister had met on official business, but she did not accept that the remaining three exemptions applied to the details of those who had been entertained at Chequers. She welcomed the Cabinet Office’s agreement to release that information to Mr Lamb. However, the Ombudsman criticised the Cabinet Office for the delays in resolving the case. She also criticised them for various aspects of the way in which they had handled Mr Lamb’s request for information.

1. Mr Lamb complained that the Cabinet Office had refused to provide 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 my staff, but I am satisfied that no matter of significance has been overlooked.

The Code and the role of the Ombudsman

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 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 Code could be investigated by him, if referred by a Member of Parliament in the usual way. When the Code came into force, on 4 April 1994, the then Ombudsman wrote 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 Code came into force I have been able to consider complaints that, in breach of its provisions, bodies within the Ombudsman’s jurisdiction have refused to supply information which is held by them. Refusal to supply 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 of 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 a refusal to release information which should have been released was sufficient to found a complaint to the Ombudsman. I see no reason to depart from these established practices.

Exemptions

4. Exemption 2 of the Code is headed ‘Internal discussion and advice’ and reads: ‘Information whose disclosure would harm the frankness and candour of internal discussion, including:

• proceedings of Cabinet and Cabinet committees;

• internal opinion, advice, recommendation, consultation and deliberation;

• projections and assumptions relating to internal policy analysis; analysis of alternative policy options and information relating to rejected policy options;

• confidential communications between departments, public bodies and regulatory bodies.’

5. Exemption 7 is headed ‘Effective management and operations of the public service’ and reads as follows:

‘(a) Information whose disclosure could lead to improper gain or advantage or would prejudice:

• the competitive position of a department or other public body or authority;

• negotiations or the effective conduct of personnel management, or commercial or contractual activities;

• the awarding of discretionary grants.

(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.’

6. Exemption 9 is headed ‘Voluminous or vexatious requests’ and reads: ‘Requests for information which are vexatious or manifestly unreasonable or are formulated in too general a manner, or which (because of the amount of information to be processed or the need to retrieve information from files not in current use) would require unreasonable diversion of resources.’

7. Exemption 12, headed ‘Privacy of an individual’ 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.’

8. In the preamble to Part II of the Code, under the heading ‘Reasons for confidentiality’, it states that: ‘The following categories of information are exempt from the commitments to provide information in this Code. 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.’

Background to the complaint

9. In a Parliamentary Question on 8 April 2003, Mr Lamb asked the Prime Minister if he would provide a list of the people who had been entertained on official business at Chequers since January 2002. In response, the Prime Minister said that he had had meetings with a wide range of organisations and individuals and that, as with previous administrations, it was not the Government’s practice to provide details of all such meetings, under Exemptions 2 and 7 of the Code.

10. On 8 May 2003 Mr Lamb wrote to the Prime Minister saying that, having read the Code and the exemptions cited, he did not consider that there was any justification for withholding the names of those individuals who had been entertained at Chequers on official business. He referred to the preamble to Part II of the Code and pointed out that there was a presumption that information should be disclosed, unless the harm likely to arise from disclosure outweighed the public interest in making the information available. He said that he did not consider that providing a list of individuals whom the Prime Minister had met on official business at Chequers could be said to harm the frankness and candour of internal discussion (Exemption 2 of the Code – paragraph 4 above). He emphasised that he had not asked for details of what had been discussed. As for Exemption 7, which relates to the effective management and operations of the public service (paragraph 5 above), Mr Lamb said that disclosure of the information for which he had asked could not in any way lead to improper gain or advantage, nor would it prejudice any of the principles set out in the exemption; further, disclosure would not harm the proper and efficient conduct of the operations of a department or any other public or regulatory body. Mr Lamb then repeated his request for information, this time asking for a list of all of the people the Prime Minister had met at Chequers on official business since 8 June 2001 – rather than January 2002 – and also asking for details of everyone who had visited Chequers on an unofficial basis from the same date.

11. On 29 May 2003 the Prime Minister replied, declining to provide Mr Lamb with the information he sought. His reply said that the Government’s position on the disclosure of details of meetings remained as set out in their response to the Sixth Report of the Committee on Standards in Public Life, which was that Ministers and civil servants meet many people as part of the process of policy development and analysis. Some of these discussions would take place on a confidential basis and it would not be the normal practice to release details relating to them.

12. On 18 June 2003 Mr Lamb wrote asking me to investigate the refusal to provide him with a list of people entertained on official business at Chequers. He went on to say, among other things, that providing a list of individuals the Prime Minister had met on official business at Chequers could not be said to harm the frankness and candour of internal discussion as he had not asked for any information as to what had been discussed. His complaint was formally referred to me on 1 July 2003. On 11 July 2003 my staff sought the views of the Permanent Secretary of the Cabinet Office.

Departmental comments on the complaint

13. The Permanent Secretary responded on 7 August 2003, enclosing papers relevant to the complaint. These were primarily lists of dinner invitations and seating plans for events held at Chequers. He confirmed that Mr Lamb had asked for a list of people entertained on official business at Chequers since January 2002 and said that the justification for the non-disclosure of that information remained as set out in the Prime Minister’s previous answers (paragraphs 9 and 11 above). He went on to say that some of the people entertained on official business were Ministers and civil servants and that to disclose their names could harm the frankness and candour of internal discussions on the grounds that it could lead to the disclosure of such discussions. He said that the Government needed to be able to protect the confidentiality of the internal decision-making process, and it remained the Cabinet Office’s view that Exemption 2 applied. He said that Exemption 7(b) was also relevant as the disclosure of such information could prompt speculation about why certain individuals were meeting the Prime Minister and what was said at those meetings, speculation that he felt could be harmful and only serve to distract the department from their core business. The Permanent Secretary said that there was also an issue about the privacy of the individual and that the disclosure of the names of individuals – both in and outside Government – could be an unwarranted invasion of those individuals’ privacy. Exemption 12 therefore also applied.

Investigation

14. When providing comments on this complaint, the Cabinet Office provided my Office with details of those people who had been entertained officially at Chequers since January 2002, primarily at official dinners. My staff contacted the Cabinet Office to seek further clarification of their position as, in Mr Lamb’s request for a review of the refusal to provide him with information, he had asked for details of those whom the Prime Minister had met at Chequers on official business from 8 June 2001. A meeting between myself, members of my staff and the Managing Director of, and officials from, the Cabinet Office, to discuss this further was held on 6 February 2004. As a result of that meeting, it was agreed that my staff would visit the Prime Minister’s Office to examine relevant documents and to assess the feasibility of extracting from entries in official diaries the names of those whom the Prime Minister had met on official business at Chequers on or after the relevant date. At that meeting, which took place on 2 April 2004, my staff were shown the Prime Minister’s diaries and other relevant documents. The practical difficulties of providing the information covered by Mr Lamb’s expanded request were apparent to my staff – the diary entries do not record the purpose or location of meetings (see paragraph 15 and 19 below). Following that meeting, I wrote to the Managing Director of the Cabinet Office on 26 April 2004 to set out our understanding of the Cabinet Office’s position in relation to the availability of the information sought by Mr Lamb. I also requested information about those entertained officially at Chequers between 8 June 2001 and 31 December 2001, which had not been provided with the Cabinet Office’s original comments on the complaint.

15. I received the Cabinet Office’s comments and the information I had requested on 7 July 2004. The Managing Director confirmed that the Cabinet Office’s position was as set out in my letter of 26 April 2004. He said that, as Chequers was held in trust for the use of the Prime Minister of the day for both his private and official business, the only way of identifying the occasions on which the Prime Minister was at Chequers on official business would be through a manual trawl of the historical diaries. That would require a considerable amount of work involving disproportionate cost.

Assessment

16. Before turning to the substantive issue of whether or not the information requested by Mr Lamb should be released to him, I shall look first at how his information request was handled. When departments refuse requests for information, it is good practice for them to identify the specific exemptions in Part II of the Code on which they are relying to support that refusal. Also, where information has been refused, the possibility of a review under the Code should be made known to the person requesting the information at the time of that refusal, as should the possibility of making a complaint to my Office if, after the review process has been completed, the person requesting the information remains dissatisfied. Finally, departments are expected to respond to requests for information within 20 working days, although the Code recognises that this target may need to be extended when significant search and collation of material is necessary.

17. Mr Lamb made his initial request for information on 8 April 2003 by means of a Parliamentary Question. In his answer the Prime Minister declined to provide the information sought, citing Exemptions 2 and 7 of the Code. On 8 May 2003 Mr Lamb wrote to the Cabinet Office requesting, in effect, a review of the refusal to provide him with information. On 29 May 2003 Mr Lamb received a reply, signed by the Prime Minister (paragraph 11), maintaining the refusal to give Mr Lamb the information he sought. While that response was commendably prompt, it did not mention either the Code or the possibility of Mr Lamb making a complaint to my Office if he remained dissatisfied. These failings merit my criticism.

18. I now turn to the information sought by Mr Lamb. In doing so I should first clarify what information I consider to be included in my investigation. While, in his Parliamentary Question of April 2003, Mr Lamb asked for details of those entertained on official business at Chequers since January 2002, he subsequently expanded that request to include those whom the Prime Minister had met on official business at Chequers since 8 June 2001. It is that expanded request that has been the subject of my investigation.

19. The Cabinet Office have been able to provide me with lists of those who have been entertained officially at Chequers since 8 June 2001, primarily at official dinners. However, they have been unable to provide me with similar details of all those whom the Prime Minister has met officially at Chequers since that date, as his diaries are not constructed and maintained in such a way as to make this information readily available. The Cabinet Office’s arguments against their producing such information equates in practice to their having cited Exemption 9 of the Code (paragraph 6 above) which can apply, among other things, where the search for the information requested would require an unreasonable diversion of resources. My staff have examined examples of entries in the Prime Minister’s diaries. I am satisfied that the structure and format of the diaries would render it impossible for a manual trawl to establish, with any degree of accuracy, which of the diary entries recorded therein were related to official business conducted at Chequers and which were private or political meetings. That being so, I consider that for the staff in the Prime Minister’s Office to be required to make such a trawl with no real likelihood of success would be an unreasonable diversion of resources. I therefore consider that the Cabinet Office were entitled to rely on Exemption 9 in relation to the details of those whom the Prime Minister had met officially at Chequers since June 2001. It would have been helpful if that exemption had been cited specifically by the Cabinet Office at the outset, rather than at a relatively advanced stage of my investigation.

20. As to those who were entertained officially at Chequers since that date, the basis for the Cabinet Office’s response to Mr Lamb’s request for this information is that the Government’s policy in this area was set out in its response to the Sixth Report of the Committee on Standards in Public Life (Cm 4817, July 2000). This said that it was not the Government’s normal practice to release details of meetings with private individuals or companies; that Ministers and civil servants meet many people as part of the process of policy development and analysis; and that some of these discussions would take place on a confidential basis. I accept that some discussions between Ministers and private individuals or representatives may indeed be confidential. However, a request for information should not be refused using a blanket approach solely on the grounds that it is not the Government’s normal practice to release a particular class of information: the Code does not recognise classes and requires an assessment to be made in response to each individual information request. In that context, I now go on to assess the merits of the exemptions cited by the Cabinet Office as a basis for withholding the information sought by Mr Lamb.

21. I shall first consider the applicability or otherwise of Exemption 2 to that information (paragraph 4). The Permanent Secretary of the Cabinet Office has argued in particular that to release the names of any Ministers and civil servants who were among those who received such entertainment could harm the frankness and candour of internal discussions. However, the names of those who were entertained on official business at Chequers is a matter of fact and, as I and my predecessors have noted in reports of other investigations, the purpose of Exemption 2 is not to protect purely factual information. The Cabinet Office are not, therefore, entitled to rely on Exemption 2 as a basis for withholding the information relating to those entertained officially at Chequers.

22. The Cabinet Office have also cited Exemption 7(b) (paragraph 5). This exemption is intended to prevent the disclosure of information where such disclosure would be damaging to the work of the department concerned. The Cabinet Office have said that to provide the details sought by Mr Lamb could prompt speculation as to why certain individuals were meeting the Prime Minister and the content of the discussions they had with him. They considered that such speculation could be harmful and only serve to distract the department from its core business. I do not find this persuasive. Exemption 7(b) relates to information whose disclosure would harm the proper and efficient conduct of the operations of a department. The Cabinet Office have said to provide the information sought by Mr Lamb could prompt speculation about the purpose behind such meetings, which could be harmful, but this is in itself no more than speculation. The Cabinet Office have not explained in any more specific way how disclosure would damage their work, and I am unable to see any basis for concluding that Exemption 7(b) applies to the information.

23. I now turn to Exemption 12 (paragraph 7), noting as I do so that this exemption was not cited in either of the responses to Mr Lamb’s information requests. The Cabinet Office have argued that the disclosure of the names of individuals, both inside and outside Government, could be an unwarranted invasion of those individuals’ privacy. However, the Cabinet Office have offered no explanation for reaching these conclusions. Moreover, there is undoubtedly a strong public interest in how public money is spent and, since funding for official entertainment at Chequers comes from the public purse, I do not see that it would be an unwarranted invasion of the privacy of individuals to let it be known that they were the recipients of such entertainment. I do not, therefore, consider that the Cabinet Office are entitled to rely on Exemption 12 as the basis for withholding these names.

24. That said, while I recognise that Mr Lamb has sought more comprehensive information, which my investigation has shown is not readily available, I consider it reasonable to make available to him what information there is.

25. On the basis of the documents my staff have seen, I do not consider that the Cabinet Office would be able to establish whether they hold all of the information sought by Mr Lamb without disproportionate effort and cost. However, I do not think that they were justified under the terms of the Code in withholding what information they do have related to the names of those who have been entertained officially, primarily at dinner engagements, at Chequers since 8 June 2001. I therefore recommended to the Managing Director of the Cabinet Office that they now provide Mr Lamb with that information. I invited the Managing Director, when considering his response, to have regard to the recommendations that information should be released made in two comparable complaints (our references A.21/03 and A.15/04 – see Access to Official Information: Investigations Completed July 2003 – June 2004 – HC 701). In reply, the Managing Director agreed to provide Mr Lamb with the names of those who had attended official engagements at Chequers within the period cited.

Conclusion

26. Although I am disappointed at the excessive length of time it has taken to resolve this case, and I have been critical of some aspects of the way in which the Cabinet Office have handled Mr Lamb’s request for information, I am nevertheless pleased that they have now agreed to release to him the identifiable information he sought. I consider that agreement to be a satisfactory outcome to Mr Lamb’s complaint.

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Last updated: 10 June 2005