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

Following receipt from the Cabinet Office of a Notice in Writing under section 11(3) of the Parliamentary Commissioner Act 1967, the Ombudsman discontinued her investigation into Mr Evans’s complaint that the Cabinet Office and the then Lord Chancellor’s Department (now the Department for Constitutional Affairs) had refused to provide him with information about potential Ministerial conflicts of interest (A.16/03, Access to Official Information: Failure to provide information relating to potential Ministerial conflicts of interest under the Ministerial Code of Conduct, HC 951). She re-opened her investigation following a decision by the Administrative Court to quash the Notice by consent. The Ombudsman criticised both departments for their handling of Mr Evans’s complaint both before and since Mr Evans complained to her, concluding that responsibility for their joint shortcomings laid primarily with the Cabinet Office. She was also critical of the Cabinet Office for the substantial delay in providing central guidance on the handling of information requests impinging on the Ministerial Code. As to the information sought by Mr Evans, the Ombudsman found that the Cabinet Office and the Lord Chancellor’s Department were not entitled to rely on Exemptions 2 and 12 as a basis for withholding much of the information requested by Mr Evans but that, in particular as regards Exemption 12, each case needed to be considered on its merits. She recommended that additional information be released to Mr Evans, and expressed disappointment that neither the Cabinet Office nor the Lord Chancellor’s Department replied substantively to that recommendation.

1. Mr Evans complained that both the Lord Chancellor’s Department (LCD) (now the Department for Constitutional Affairs, but I use the term LCD throughout for ease of reference) and the Cabinet Office 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 Information Code).

2. On 7 July 2003 I discontinued my investigation into Mr Evans’s complaint following receipt from the Cabinet Office of a Notice in Writing under section 11(3) of the Parliamentary Commissioner Act 1967 (paragraph 22 below). Following a decision by the Administrative Court to quash the Notice by consent, I re-opened my investigation. 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. I should explain that since 1 January 2005 the Information Code has been superseded by the Freedom of Information Act 2000. As a result, references to the Information Code are couched in the past tense.

The Information Code

3. 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 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.

4. While the Information Code was in force, the Ombudsman was able to consider complaints that, in breach of its provisions, bodies within the Ombudsman’s jurisdiction had refused to provide information which was held by them. Refusal to supply information might have been justified if the information fell within one or more of the exemptions listed in Part II of the Information Code. The Information Code gave no right of access to documents: the right, subject to exemption, was 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 which 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.

Exemptions

5. Exemption 2 to the Information Code was headed ‘Internal discussion and advice’ and read: ‘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.’

6. Exemption 2 was subject to the preamble to Part II of the Information Code which stated 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.’

7. Exemption 12 was headed ‘Privacy of an individual’ and read: ‘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.’

Jurisdiction

8. The Ombudsman has the jurisdiction to 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. Both LCD and the Cabinet Office are so listed.

The Ministerial Code of Conduct (The Ministerial Code)

9. 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 paragraphs of the 1997 Ministerial Code relevant to this investigation are: ‘110. Where it is proper for a Minister to retain any private interest, it is the rule that he or she should declare that interest to Ministerial colleagues if they have to discuss public business in any way affecting it, and that the Minister should remain entirely detached from the consideration of that business. Similar steps may be necessary should the matter under consideration in the Department relate in some way to a Minister’s previous private interests such that there is, or may be thought to be, a conflict of interest. ‘123. In all cases concerning financial interests and conflict of interest Ministers may wish to consult financial advisers as to the implication for their (or their families’) affairs of any action which they are considering to avoid any actual or potential conflict of interest. They should also consult the Permanent Secretary in charge of their Department, who is the Minister’s principal adviser and who also, as Accounting Officer, has a personal responsibility for financial propriety and regularity. It is in the end for Ministers to judge (subject to the Prime Minister’s decision in cases of doubt) what action they need to take; but they should record, in a minute to the Permanent Secretary, whether or not they consider any action necessary, and the nature of any such action taken then or subsequently to avoid actual or perceived conflict of interest.’

Background

10. On 19 February 2001 Mr Evans wrote to 17 Government Departments seeking information about the occasions on which their respective Ministers had sought the advice of the Permanent Secretary of the Department concerned (and of the Prime Minister where appropriate) about potential conflicts of interest with their public duties. Citing the Information Code, Mr Evans asked to be told, in relation to paragraph 123 of the Ministerial Code of Conduct (and since 1 January 1999):- (a) how many times Ministers in each Department had consulted the Permanent Secretary; (b) on what dates they had consulted the Permanent Secretary; (c) which Ministers had consulted the Permanent Secretary; (d) for what reasons did each Minister consult the Permanent Secretary; and (e) what action was taken in each case and in which of them was it necessary to consult the Prime Minister.

11. Mr Evans also asked, for each case, for a copy of the minute to the Permanent Secretary from the Minister recording what action was necessary and the nature of any action taken to avoid any actual or perceived conflict of interest. He asked that the requested information be sent to him within 20 days in accordance with the Information Code.

12. In response to his requests, 15 of the 17 Departments he had contacted replied, including LCD and the Cabinet Office, refusing to provide him with the information he sought, all citing Information Code Exemptions 2 and 12 as the basis for their refusal. In their letter of refusal of 19 March 2001 the Cabinet Office referred to the Guidance on the Interpretation of the Information Code, which states with regard to Exemption 2 that ‘it is not the intention to change or undermine the long-established conventions protecting the confidentiality of the internal decision-making process’, and noted that one of the conventions listed was Questions of Procedure for Ministers (see paragraph 9 above). The Cabinet Office said that the type of information considered under such conventions was particularly sensitive and it was in recognition of this sensitivity that the guidance gave great weight to the fact that any disclosure in this area could harm the frankness and candour of future discussions. As to Exemption 12, the Cabinet Office said that the provisions in the Ministerial Code relating to the seeking of advice and declarations of possible conflicts of interest were there to ensure that the boundaries between the private and public lives of Ministers were properly set and maintained. The Cabinet Office said that they believed that the disclosure of information about such issues would be an unwarranted invasion of privacy. LCD wrote to Mr Evans in effectively identical terms on 29 March 2001.

13. Between 28 November 2001 and 4 December 2001 Mr Evans contacted the Government Departments which had refused to provide him with information, seeking a review of their decisions. In response he received holding replies from several of the Departments concerned (although not from LCD and the Cabinet Office), from one of which he became aware that they were awaiting guidance from the Cabinet Office on how to respond to information requests involving matters covered by the Ministerial Code before replying to him substantively.

14. Having received guidance from the Cabinet Office on how to respond to this and other information requests which Mr Evans had made, LCD issued it to the Government Departments concerned on 8 August 2002. In relation to the present complaint the guidance advised that: ‘Departments should state that they have reviewed their response to the original request and, for the reasons set out in the original reply, maintain that Exemption 2 (internal discussion and advice) and Exemption 12 (privacy of an individual) continue to apply. ‘Departments should also highlight that the July 2001 revision of the Ministerial Code strengthened the rules in this area. All Ministers are now required, on appointment to each new office, to provide their Permanent Secretary with a list of their financial and other interests which could give rise to a conflict of interest. If any are reported they then have to have a meeting with the Permanent Secretary to discuss them and consider what action, if any, is necessary.’ The Cabinet Office and LCD replied to Mr Evans’s review requests of 28 November 2001 in those terms on 21 August and 12 September 2002 respectively.

15. On 22 August 2002 my predecessor, having had Mr Evans’s complaint referred to him by the Member, issued a statement of complaint to the Permanent Secretaries of both LCD and the Cabinet Office, inviting their comments and asking to see all of the papers relevant to the complaint, including the information sought by Mr Evans, by 13 September 2002.

The Permanent Secretaries’ comments on the complaint

16. The Permanent Secretary of LCD replied on 5 September 2002, apologising for the length of time taken to reach a view on Mr Evans’s review request. He explained that, as with an earlier complaint from Mr Evans, it had been necessary for LCD to consult the Cabinet Office because of the latter’s responsibility for the Ministerial Code. He said that, in response to Mr Evans’s letter of 19 February 2001, on 29 March 2001 LCD had refused to provide him with the information he had requested, setting out the reasons for the refusal and the exemptions on which the refusal was based. The Home Office (the previous custodians of the Information Code) had already rejected a similar request from Andrew Robathan MP, which had been subject to the Ombudsman’s investigation, and about which the judgment (that the Home Office had wrongly withheld information) was published on 13 November 2001(A.28/01 Access to Official Information: Declarations Made Under The Ministerial Code Of Conduct, HC 353). LCD had acknowledged Mr Evans’s review request of 28 November 2001 by e-mail on 30 November 2001, pending advice from the Cabinet Office, by which time central responsibility for the Information Code had transferred to LCD. The Permanent Secretary of LCD said that Mr Evans had been in contact with his officials, who had tried to keep him informed and that, following consultation with the Cabinet Office and the issue by LCD of the Cabinet Office’s central guidance, they had responded to Mr Evans on 22 August 2002 in the terms of that guidance, maintaining that Exemptions 2 and 12 continued to apply.

17. The Permanent Secretary of the Cabinet Office replied on 10 October 2002, saying that he had seen the reply from the Permanent Secretary of LCD. He said that he could find no trace of a letter from Mr Evans between 28 November 2001 and 4 December 2001 seeking a review of the decision to refuse the information requested; however the Cabinet Office had decided to proceed as if they had received such a request. He said that central guidance on this and other round robin requests from Mr Evans concerning matters under the Ministerial Code was issued by LCD on 8 August 2002. Following that guidance the Cabinet Office had replied on 12 September 2002, maintaining the refusal to provide information on the basis that Exemptions 2 and 12 applied. The Permanent Secretary said that the Cabinet Office’s response to Mr Evans’s original request for information made it clear that they were satisfied that it was not the intention that the Information Code should be interpreted in a way which would lead to the disclosure of confidential and sensitive discussions under constitutional conventions, and which could harm the frankness and candour of future discussions. The response had also made it clear that the Cabinet Office considered that it would be an unwarranted invasion of an individual Minister’s privacy to disclose the information requested. The Permanent Secretary said that the Government had maintained this view in their consideration of the Ombudsman’s conclusions the previous year on the related complaint from Mr Andrew Robathan MP. The Permanent Secretary said that he had arranged for a copy of the letter of 12 September 2002, together with copies of other papers specific to this case that I did not already hold, to be sent to my Office. He echoed the regret expressed by the Permanent Secretary of LCD about the length of time taken to reach a view in relation to these requests.

Investigation

18. On 20 September 2002 my Office received from LCD their papers relating to Mr Evans’s complaint, but these papers failed to include the information sought by Mr Evans. Following telephone requests from my staff on 24 September, 5 and 17 October 2002, my Office received the relevant information.

19. On 14 October 2002 the Cabinet Office telephoned a member of my staff to say that they intended to send their papers to my Office that day. Following a number of reminders some papers were received on 5 November 2002 but, again, these did not include the information requested by Mr Evans. On 7 November 2002 one of my staff wrote to the Cabinet Office reminding them that we had asked to be sent that information by 13 September 2002, and requesting its provision as soon as possible. In their response of 2 December 2002 the Cabinet Office expressed the view that the issues in this case were comparable to those in the Robathan case in which the Government had not accepted the Ombudsman’s conclusions. The Cabinet Office were of the opinion that Mr Evans should be referred to the Robathan report, which set out the Government’s position.

20. On 24 January 2003, having still not received the information, I wrote to the Permanent Secretary of the Cabinet Office about this and other complaints, reminding him that the Ombudsman’s right of access to information and documents under the Parliamentary Commissioner Act 1967 applied equally to investigations carried out in relation to complaints under the Information Code, and that this right included the material to which access was sought.

21. I subsequently met the Permanent Secretary on 13 February 2003 in an attempt to take matters forward. I then wrote to him on 18 February 2003 recording my understanding of the conclusion reached, which was that material in Mr Evans’s case would now be sent to my Office so that my investigation could proceed without further delay. Since papers still failed to appear, I wrote again to the Permanent Secretary on 5 March 2003, expressing my disappointment that they had not been sent and asking that they be received within the next week, or for an explanation if this were not possible. The Permanent Secretary replied on 13 March 2003, saying that the Ministerial Code made it clear that personal information which Ministers disclosed to those who advised them was treated in complete confidence and could not be disclosed without their permission. He said that the Government had considered these issues carefully but had concluded that the release of information relating to Ministers’ financial interests would harm the frankness and candour of internal discussion and they did not therefore intend to release such papers; this point had been previously stressed in the Government’s response to the Robathan report. In response, on 21 March 2003, I asked the Permanent Secretary for confirmation that their reply meant not only that they were maintaining their refusal to release to Mr Evans the information he had requested but also that they were not prepared to make that information available to me. The Permanent Secretary replied 9 April 2003, in effect confirming that this was indeed the case.

22. Following further correspondence I received, on 25 June 2003 from the Cabinet Office a Notice in Writing, under section 11(3) of the Parliamentary Commissioner Act 1967 (the Act), dated 23 June 2003 and signed by: (a) the Secretary of State for Constitutional Affairs and Lord Chancellor; and (b) the Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster. Section 11(3) of the Act states that: ‘A Minister of the Crown may give notice in writing to the Commissioner, with respect to any document or information specified in the notice, or any class of documents or information so specified, that in the opinion of the Minister the disclosure of that document or information, or of documents or information of that class, would be prejudicial to the safety of the State or otherwise contrary to the public interest; and where such a notice is given nothing in this Act shall be construed as authorising or requiring the Commissioner or any officer of the Commissioner to communicate to any person or for any purpose any document or information specified in the notice, or any document or information of a class so specified.’ The Notice informed me that the disclosure of the information sought by Mr Evans would be contrary to the public interest. In those circumstances, I considered that I had no option but to discontinue my investigation.

23. It was not until 23 June 2003 that the Cabinet Office finally sent me an example of the type of information sought by Mr Evans (albeit not information falling within the period of his request), as an Annex to the section 11(3) Notice. That delay was regrettable and, I am sorry to have to say, indicative of the substantial lack of co-operation that my Office received from the Cabinet Office during the early stages of this investigation.

Later developments

24. On 12 November 2003 Mr Evans was granted permission to apply for judicial review of the joint decision to issue a section 11(3) Notice. On 18 March 2004 the Cabinet Office notified me that, by consent, they and LCD had agreed to the quashing of the section 11(3) Notice, on the grounds that the decision to issue it had been flawed. In her witness statement to the Administrative Court supporting the order to quash, the Assistant Treasury Solicitor acting on behalf of the Cabinet Office and LCD quoted their counsel as saying that Mr Evans would receive the answers to his five questions (paragraphs 10(a)-(e)) to the extent that they could be given without revealing the contents of any consultation; that it was recognised that Mr Evans had previously asked similar questions of 15 other Departments and the Cabinet Secretary was advising those departments that they should now proceed to provide answers to the original questions in so far as possible without revealing the content of any consultation between Ministers and their Permanent Secretaries; and, for the avoidance of doubt, LCD and the Cabinet Office should emphasise that they would continue to uphold the confidentiality of the content of Ministerial consultations and would need to take fresh decisions in relation to any further information which Mr Evans might ask to see.

25. In the light of the decision quashing the Notice, I concluded that there was no longer any bar to completing my investigation and, on 25 March 2004, I wrote to the Cabinet Office (copied to LCD) and to Mr Evans notifying them of my intention to re-open the case. On 25 March 2004 I also received from Mr Evans a copy of a letter he had sent on 24 March 2004 to all of the Government Departments of which he had made his original information request, referring them to the Assistant Treasury Solicitor’s witness statement and the undertaking it contained and asking them to provide without further delay the answers to the five questions set out in his original request (although he believed that it was for me to decide how much of the actual content of the consultations should be disclosed to him).

26. On 26 April 2004 the Managing Director of the Cabinet Office wrote to me to confirm that they had advised Departments to deal with Mr Evans’s letter in accordance with the terms of his updated request. Having further studied the item of correspondence mentioned in paragraph B of the section 11(3) Notice, the Managing Director said that the letter in question did in fact fall outside the period of Mr Evans’s information request (1 January 1999 to 19 February 2001). The Managing Director said that the Cabinet Office had written to Mr Evans to explain that there had been no instances of any formal consultations between Cabinet Office Ministers and their Permanent Secretary in that period, although it was possible that Ministers may have had some consultations on an informal basis, for example in the margins of meetings; there were, however, no records of any such consultations.

27. Also, on 26 April 2004, the Permanent Secretary of LCD wrote to me saying that, with hindsight, LCD accepted that the release of information relating to the number of occasions on which consultations (between Ministers and their Permanent Secretary) had occurred, the dates of those consultations, the names of the relevant Ministers, the purpose in general terms of the consultation and the action that was taken, would not normally harm the frankness and candour of internal discussions. Nor would disclosure of such information usually constitute an unwarranted invasion of Ministers’ privacy. They accepted that they should have provided that information at the outset.

28. The Permanent Secretary of LCD went on to say that to go further than simply state what was discussed (for example, a financial interest) and to give details of the nature of that financial interest could reasonably be expected to harm the frankness and candour of internal discussion and advice. LCD further believed that in this case the harm likely to arise from disclosure outweighed the public interest in making the information available.

29. The Permanent Secretary said that, since June 2001 (after Mr Evans’s request), the Ministerial Code had been strengthened to include an absolute requirement for Ministers, on appointment to each new office, to provide their Permanent Secretaries with a list of any of their interests which might be thought to give rise to a conflict. The Ministerial Code specified that any interest ‘which might be thought to give rise to a conflict’ should be brought to the attention of Permanent Secretaries. LCD provided guidance to Ministers on the issues that should be covered in their lists but the onus was still on Ministers to exercise their judgement as to what ‘might be thought’ to give rise to such a conflict. The Permanent Secretary said that the promise of confidentiality in paragraph 118 of the (2001) Ministerial Code, and the general relationship of high trust that existed between Ministers and their Permanent Secretaries and other senior officials, led to Ministers being very candid in their judgment about what might be thought to give rise to a conflict, to the extent of also seeking advice over issues which could not be thought to raise such a possibility.

30. As to the specific cases covered by Mr Evans’s information request, the Permanent Secretary said that the conversations between the Ministers and their Permanent Secretary took place in the expectation of confidentiality (see above) and were, as a result, very frank and open. He said that if Ministers thought that the conversations they had with their senior officials could be made public, or that they would have to make public details of private financial interests which do not give rise to any conflict of interest, then there was a reasonable expectation that the frankness and candour of discussions would be harmed; Exemption 2 therefore applied. As to whether the public interest in releasing the information would override the harm caused by its release, the Permanent Secretary said that there clearly was a public interest in ensuring that the Ministerial Code was complied with; however, compliance with the Ministerial Code was in the end ensured through the advice provided by an impartial Civil Service. He said that the public gaze in this case could damage the public interest in ensuring that the Ministerial Code was complied with. The Permanent Secretary went on to say that LCD believed that there was also a strong public interest in preventing the harm that would be caused to the frankness and candour of future internal discussions of this kind and the risk of such harm, in his view, outweighed the public interest in openness in this case.

31. The Permanent Secretary also commented on the point that the balance of public interest had to take account of the fact that some of the information in question claimed to have been placed in the public domain by an article in the press. He said that the Government had not commented on the subject of the article and had never said whether or not the information contained in it was correct: that remained the position. He said that even if the details set out in the article were correct, there would be a marked difference between information entering the public domain as a consequence of a supposed leak and speculation and information being officially released. He concluded that the supposed fact of information already being in the public domain was not relevant to the question of whether or not the information in question should be officially released.

32. The Permanent Secretary said that LCD also believed that to make public the content of the discussions would amount to an unwarranted disclosure of personal information: Exemption 12 therefore applied.

Assessment

33. In assessing this complaint there are two aspects I have to consider: the general handling of Mr Evans’s information requests by LCD and the Cabinet Office, and the substantive matter of whether or not the information requested should be released to him. I turn first to the handling of the information requests.

34. I draw attention to paragraph 5 of Part I of the Information Code, which was headed ‘Responses to requests for information’ and read: ‘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.’

35. Mr Evans’s original request for information was made on 19 February 2001. The Cabinet Office responded to him on 19 March and LCD on 29 March 2001. Albeit that LCD’s reply was slightly outside the deadline, given the nature of the information requested, both departments’ initial response was commendably prompt. However, it was a different story when it came to Mr Evans’s review requests made between 28 November and 4 December 2001 as LCD and the Cabinet Office replied to Mr Evans only on 22 August and 12 September 2002 respectively. Although the Information Code laid down no specific timescale for the carrying out of reviews, these clearly took much longer than they should have done even allowing for the nature of some of the information sought.

36. A detailed account of the delays in this case is set out in the published report of the investigation into a related complaint by Mr Evans (A.7/03, Access to Official Information: Refusal to release information relating to the acceptance of gifts by Ministers in accordance with the Ministerial Code of Conduct, HC 951). It is clear from the papers I have seen in connection with these two complaints that the fundamental cause of the delay resulted from LCD’s need to have from the Cabinet Office the central guidance that they (LCD) could then issue on the handling of information requests impinging on the Ministerial Code. Despite persistent attempts on LCD’s part to expedite matters they did not receive that guidance from the Cabinet Office until shortly before they (LCD) issued it on 8 August 2002, some nine months after Mr Evans had instigated the process. That being so, I firmly believe that the responsibility for the delay in dealing with Mr Evans’s review request must be laid squarely at the door of the Cabinet Office.

37. As my predecessor has said, any delay in securing information often deprives it of value: any delay by departments in answering information requests is therefore regrettable. I strongly criticise the Cabinet Office for the length of time it took them to provide central guidance in this case. The substantial overall delay in providing guidance to 17 Government Departments on a matter such as this is wholly unacceptable, not least because this delay made it impossible for every other Department in receipt of Mr Evans’s review request to meet their obligations under the Information Code.

38. The central guidance that was eventually issued on 8 August 2002 advised Departments that their response to Mr Evans’s review requests should maintain, for the reasons set out in their original replies (paragraph 12 above), that Exemption 2 (internal discussion and advice) and Exemption 12 (privacy of an individual) continued to apply, and that was the line followed by LCD and the Cabinet Office in their letters to Mr Evans of 21 August and 12 September 2002 respectively.

39. I now turn to the applicability or otherwise of Exemption 2 to the information sought by Mr Evans (paragraphs 5 and 6). In their initial letter refusing to provide him with information the Cabinet Office have noted that the Guidance on Interpretation of the (Information) Code (the Guidance) stated that it was not the intention of the Information Code to change or undermine the long-established conventions protecting the confidentiality of the internal decision-making process. As I have stated above (paragraph 9), one of the conventions listed in the Guidance was the Questions of Procedure for Ministers, the forerunner of the Ministerial Code. I should say here that my role is to consider complaints about refusals of access to information under the terms of the Information Code and I am not bound necessarily to interpret that Code in the same way as the Guidance.

40. The purpose of Exemption 2 was to allow Government Departments the opportunity to discuss matters, particularly those which were likely to be sensitive or contentious, on the understanding that their thinking would not be exposed in such a way as to impede their deliberations by inhibiting the frankness and candour of future discussion. However, Exemption 2 incorporated a ‘harm test’, which required the harm that would arise from disclosure of information to be weighed against the public interest in making the information available. In their letters of 19 March and 29 March 2001 the Cabinet Office and LCD said that the type of information considered under the Ministerial Code was particularly sensitive and that it was in recognition of this fact that the Guidance gave great weight to the fact that any disclosure in this area could have harmed the frankness and candour of future discussions. I agree that matters considered under the Ministerial Code are potentially sensitive, particularly when they relate to a possible conflict between a Minister’s public duties and his or her private interests. However, I find it hard to see how details of the number of occasions on which Ministers had consulted their Permanent Secretaries, the dates of those consultations, the names of the relevant Ministers, the purpose in general terms of the consultation and the action that was taken would have been likely to have harmed the frankness and candour of future discussions. Both the 1997 and current versions of the Ministerial Code make it clear that, where a Minister retains any private interest which might impinge on Ministerial responsibilities, it is the rule that they should declare that interest to a Ministerial colleague (paragraph 9 above). Those obligations would not in any way be reduced if Ministers knew that their declarations might be made public. However, LCD and the Cabinet Office now accept that Exemption 2 does not apply here, and I welcome that development. I also welcome their acceptance that the release of that information would not constitute an unwarranted invasion of a Minister’s privacy and that Exemption 12 does not apply either. I am pleased that the Cabinet Office have now issued guidance to the Government Departments concerned in the information request advising them to release to Mr Evans any such information which they hold for the period in question. This development is particularly welcome given the refusal by the Home Office to accept a recommendation to release very similar information in a case considered by my predecessor and reported in November 2001 (see paragraph 16).

41. I now move on to consider whether or not the precise details of the discussions between individual Ministers and their Permanent Secretaries should be released to Mr Evans. Such consultations would fall, without argument, within the definition of internal advice, recommendation, consultation and deliberation contained in Exemption 2. I therefore accept that, in principle, Exemption 2 could be held to apply to that information, which means that I must now go on to consider the ‘harm test’. There is a very considerable degree of public interest in the way in which Ministers conduct themselves and their business: the question is, would the release of information relating to those matters cause a degree of harm sufficient to outweigh that public interest? As this report indicates, that public interest in such matters has intensified in recent years in a climate where greater openness about conflicts between the public and private interests of Ministers is increasingly seen as a desirable end in itself. This is not only for general reasons of good governance but to avoid any suspicion of improper Ministerial influence. And, given the new requirements of the Ministerial Code (set out in paragraph 29 above) in respect of the disclosure of such interests, it is in my view unlikely that the release of this information would have affected the candour and frankness of future, similar, discussions. On that basis, I feel that the public interest test in respect of Exemption 2 operated in favour of disclosure.

42. However, the Cabinet Office and LCD also cited Exemption 12 as a basis for their refusal to provide the information sought. Clearly the purpose of Exemption 12 was to protect personal information, the disclosure of which would have constituted an unwarranted invasion of privacy. The Permanent Secretary of LCD has claimed (paragraph 17) that it would be an unwarranted invasion of Ministers’ privacy to disclose any information that had been provided to Permanent Secretaries in an expectation that it would remain confidential under the terms of the Ministerial Code. However, the Information Code contained no such class exemptions. The Information Code required an assessment to be made in response to each individual information request and the approach to the release of information should in all cases have been based on the assumption that information would 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 what is said in point iv. of the foreword to Chapter 1 (Ministers of the Crown) of the Ministerial Code. This stated: ‘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)...’

43. In my opinion 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 should have been taken in accordance with the requirements of the Information Code. Matters pertaining to the Ministerial Code did not, therefore, fall outside the jurisdiction of the Information Code. The fact that the information sought in this case is of a type which Ministers are not required to disclose under the Ministerial Code does not mean that the information automatically fell within the scope of Exemption 12 (or any other exemption) or that disclosing it must automatically be assumed not to be in the public interest. Each case should have been considered on its individual merits.

44. As I see it, the purpose of the Ministerial Code was to clarify how Ministers should account to, and be held to account by, Parliament and the public. That being so, once a determination had been made that there was a potential/actual conflict of interest, whether financial or otherwise then, if transparency is to be maintained, I can see no basis for protecting that information. In consulting their Permanent Secretaries Ministers are conducting themselves in accordance with the requirements of the Ministerial Code, and it seems to me that it would have been in the interests of the Government and of the Ministers themselves to demonstrate adherence to the Code. I consider that the public interest would clearly have been served by the disclosure that they had done so and I do not believe that this would have caused harm to the privacy of the individual concerned. Exemption 12 cannot therefore be held to apply.

45. However, my view that Exemption 12 cannot be held to apply in general terms to information of this kind does not mean to say that Departments were required in all cases to release specific details of Ministers’ financial and other interests. Much would have depended on the precise information contained in Ministers’ requests for advice and in the Permanent Secretaries’ record, if any, of what action was taken. With that in mind, I now turn to Mr Evans’s request for copies of the documents in which Ministers sought their respective Permanent Secretary’s views and in which the latter recorded what action was necessary. It might be appropriate here to issue the reminder that the Information Code only gave an entitlement to information, not documents, and that it is on that basis that I consider Mr Evans’s request.

46. It appears from the papers I have seen that Mr Evans has already received the information contained in those documents, partly by informal means and partly in tabular form in preparation for the now abandoned court case. What is at issue here is the question of whether or not he should have received it under the Information Code. In both the cases cited by LCD the Ministers in question acted entirely in accordance with the Ministerial Code. I am pleased to see that LCD now accept that Exemption 12 would not apply to the names of the Ministers concerned and the purpose in general of the consultation and the action that was taken. However, it also seems to me that Exemption 12 would not apply to the detail of the request for advice where, as in the first instance, the subject matter could be said to potentially impinge on Ministerial duties. I am reinforced in this view through having had sight of copies of correspondence which Mr Evans had exchanged since this case was re-opened with a number of other current and former Ministers who had sought the advice of their Permanent Secretaries and who were identified as having such a potential conflict. Mr Evans had asked them if they would be prepared to provide further details of the nature of the potential conflict of interest and, for the most part, they have been more than willing to do so; this I find to be commendable. Moreover I note that, in reference to the first case, the specific details of the advice contained in the documents sought by Mr Evans are now in the public domain, having been published in an article by the Guardian newspaper, and I can see no basis for LCD continuing to formally withhold that information. (I note that LCD have argued that, where a Government Department has neither confirmed nor denied the accuracy of information in a press article, such an article should not be regarded as publication of information in the same way as information released through official channels. However, the Information Code made no distinction as to the way in which information is published – the material factor is that it is demonstrably in the public domain.)

47. It is, however, a different matter where, as in the second case cited by LCD, a Minister provided the Permanent Secretary with details of his financial and non-financial interests, all of which were of a personal nature and which were deemed not to impinge on his Ministerial duties. In such circumstances I consider that Exemption 12 could be said to apply to that information as no question of a conflict arose.

48. How then should the information which can be released to Mr Evans now be made available to him? Mr Evans initially addressed his information request to some seventeen Government Departments. I have seen that the guidance to Government Departments prepared and issued by the Cabinet Office after the quashing of the section 11(3) Notice (see paragraph 26) suggested that following the tabular format as adopted by LCD in the annex to that Notice would be the best way of providing Mr Evans with answers to the five questions set out in paragraph 10 above. In the light of my findings, on 21 October 2004 I issued my draft report to the Cabinet Office, recommending that the guidance be expanded to include advice that the table should allow (where appropriate) for the provision of more details of the reasons for consultation and the action taken in those cases where a Minister’s private interests were deemed to impinge on his or her Ministerial duties.

49. Despite a number of reminders, I am deeply disappointed that I have not received a substantive response to my recommendation. In his interim comments on behalf of the Cabinet Office and LCD, the Managing Director of the Cabinet Office apologised to me for the delay in replying in full, saying that the case raised some complex issues which had taken longer to consider than they would have wished. He said that, since Mr Evans complained to me, Departments had provided him with most of the factual information he had requested (paragraph 10 above) for the period 1 January 1999 to 19 February 2001, including the broad reasons for consultation (he gave, as an example, consultation on a financial interest). He said that, in addition, Departments were in the process of providing similar information to Mr Evans for the period 19 February 2001 to 26 November 2004. He further said that a Department had recently received a request under the Freedom of Information Act in similar terms to Mr Evans’s Code request, and that the Government were considering the issues raised by this request. The Managing Director said that he would send me a full reply in the light of that consideration. Although I have written to the Managing Director explaining that I did not consider that it would be appropriate for me to wait for the completion of those deliberations, the only response I have received makes no reference to my recommendations and repeats the Cabinet Office’s intention to first consider the Freedom of Information Act request before giving me a substantive reply. I therefore find myself in a position of having to complete this investigation without the benefit of the Cabinet Office and LCD’s comments on my recommendations, which is most regrettable, particularly in the light of the history of this case.

Conclusion

50. The Cabinet Office and LCD’s handling of this matter, both before and since Mr Evans complained to me, has been lamentable and it is clear to me that responsibility for their joint shortcomings lies primarily with the Cabinet Office. I found that the Cabinet Office and LCD were not entitled to rely on Exemption 2 and 12 as a basis for withholding much of the information requested by Mr Evans but that, particularly when considering the applicability or otherwise of Exemption 12, each case needed to be considered on its merits. I therefore upheld Mr Evans’s complaint and recommended that additional information should be disclosed to him. I am disappointed that the Cabinet Office and LCD have not seen fit to respond to that recommendation.

Previous < Contents > Next

Last updated: 16 June 2005