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

Mr Evans asked the Department of Trade and Industry (DTI) for copies of all of the documents they held relating to the progress of their investigation into allegations that British American Tobacco were implicated in smuggling. He emphasised that he was not requesting a copy of the report itself. DTI refused to provide the information, citing Exemptions 2, 4(c), 4(d), and 15(a) of the Code. When requesting a review Mr Evans also asked them for a schedule of the documents being withheld. In completing the review DTI maintained that the exemptions quoted applied to the information sought, but said that they were treating the request for a schedule as a fresh information request. They subsequently concluded that the information Mr Evans wished to have scheduled was covered by Exemptions 2 and 12, and in their comments on the complaint to the Ombudsman DTI also cited Exemption 4(c) as being relevant. The Ombudsman found that Exemption 4(c) applied to all of the information requested by Mr Evans, and that there was thus no need to go on to consider whether the other exemptions quoted by DTI were also relevant. She did not uphold the complaint.

1. Mr Evans complained that the Department of Trade and Industry (DTI) 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 the Ombudsman’s staff but I am satisfied that no matter of significance has been overlooked. I should explain that since 1 January 2005 the Code has been superseded by the Freedom of Information Act 2000. As a result, references to the Code are couched in the past tense.

The complaint

2. On 14 January 2004 Mr Evans e-mailed DTI, referring to their announcement on 30 October 2000 of the appointment of inspectors to look into allegations that British American Tobacco were implicated in smuggling. Citing the Code, he requested copies of all of the documents held by DTI which discussed the progress of the investigation and its likely completion date: he emphasised that he was not requesting a copy of the report itself. He asked for the information to be supplied to him within 20 working days as required by the Code.

3. On 3 February 2004 DTI replied to Mr Evans, declining to provide him with the information he sought. They cited four Code exemptions, Exemption 2 (relating to information whose disclosure would harm the frankness and candour of internal discussion); Exemption 4 (c) (information relating to legal proceedings or the proceedings of any tribunal, public inquiry or other formal investigation which have been completed or terminated, or relating to investigations which have or might have resulted in proceedings); Exemption 4(d) (information covered by legal professional privilege); and Exemption 15(a) (information whose disclosure is prohibited by or under any enactment, regulation, European Community law or international agreement). DTI said that enquiries had been finalised and that they would be considering with the Secretary of State what, if any, further action was necessary.

4. On 16 February 2004 Mr Evans e-mailed DTI seeking a review of their decision. He said that he believed that the public interest clearly outweighed the benefits of keeping the information secret. In the light of concern expressed over the time taken to complete the investigation, he believed that the public should know more about why the inquiry had taken over three years to complete. He said that it was possible to release documents relating to the progress and completion of the report without releasing material about its substance. He asked DTI to consider releasing redacted documents. He also requested a schedule of the documents which DTI had withheld from him, to include the date of each document, its title and the sender and recipient.

5. On 25 March 2004 DTI replied to Mr Evans, saying that the Code related to information and did not constitute a right of access to documents or records; his request had therefore been interpreted as covering all of the information contained in the documents he had asked to see. DTI said that they were satisfied that that information fell within the exemptions quoted in their letter of 3 February 2004. They said that, in relation to Exemption 4(c), releasing information other than in court or as part of other appropriate proceedings could prejudice the effective operation of the body conducting operations and cause unjustified harm to the subject of an investigation; as to Exemption 4(d), they said that public authorities had the same right as anyone else to receive legal advice in confidence.

6. DTI went on to say that Exemption 15(a) applied because the investigation had been conducted under section 447 of the Companies Act 1985 (the Act): such investigations were confidential, and any unauthorised disclosure of material collected by the exercise of that power was a criminal offence. As to Exemption 2, the only exemption cited which was subject to the public interest test, DTI said that the justification for the confidentiality of internal opinion and advice was the need to ensure that matters could be discussed candidly and frankly within government. They said that, given that the information requested related to a confidential investigation under the Act, they were satisfied that the harm in disclosing it would outweigh the public interest in making it available. DTI said that if Mr Evans was unhappy with the outcome of his review application he had recourse to the Ombudsman via his Member of Parliament. As to Mr Evans’ request for a schedule of the withheld documents, DTI said that they considered this to be a fresh information request under the Code and, now that the review had been conducted, he would shortly be hearing from them about that. DTI also commented on Mr Evans’ concern about the length of time taken to complete the investigation, saying that it had been necessary for investigators to obtain and analyse a large amount of information; thousands of documents were examined and explanations of many of these were sought from various officers and employees of British American Tobacco, which process necessarily took time; and that once gathered the information then had to be marshalled and subject to rigorous analysis.

7. On 2 April 2004 DTI wrote to Mr Evans saying that the information he had asked to have scheduled fell wholly or partly within Exemptions 2 and 12; that, in relation to Exemption 2, the harm likely to arise from disclosure would outweigh the public interest in making the information available; and that they were not willing to provide Mr Evans with a schedule containing any of the details he had requested.

8. Following the reference of his complaint, Mr Evans made further representations to the Ombudsman, referring to articles which had appeared in the Guardian newspaper, which he contended amplified the public interest in the issues in this case. He also disputed DTI’s treatment of his request for a schedule of the information they were withholding as a separate information request, which he felt betrayed the spirit of open government.

DTI’s comments on the complaint

9. In his comments of 11 November 2004 the Permanent Secretary of DTI said that they had treated Mr Evans’ initial request for documents as a request for all of the substantive information contained in those documents. The Permanent Secretary said that DTI considered that the broad nature of Mr Evans’ request encompassed a variety of documents, which they considered fell into five categories:

1. those contained in Ministers’ Cases and Parliamentary Answers;

2. minutes from investigators appointed pursuant to section 447 of the Act to the Deputy Inspectors of Companies responsible for supervising the investigation;

3. minutes from the investigators to DTI’s lawyers seeking legal advice, and the advice which was provided;

4. references to the investigation in Quarterly Reports from DTI’s Companies Investigation Branch (CIB) to Ministers; and

5. a submission dated 23 February 2004 to the Secretary of State, and earlier drafts of that submission.

10. The Permanent Secretary discussed each set of documents in turn. In relation to those in paragraph (a), he said that they were either background notes from CIB which outlined in very broad terms the progress of the investigation, minutes from CIB or copies of the letters sent. He said that DTI had taken the view that answers given in Parliament were in the public domain and thus not covered by the Code. As far as the letters sent, he said that all of the information which they contained relating to the progress of the investigation was in the public domain (via Parliamentary Answers) save for the fact that the investigation had been completed, which they told Mr Evans when responding to his information request on 3 February 2004 (paragraph 3 above). As far as the CIB background notes and minutes were concerned he said that DTI considered that Exemption 2 (internal discussion and advice) covered all of the information contained in those documents, and that the harm to the frankness and candour on internal deliberations concerning confidential investigations under the Act would outweigh any public interest in making the information available. The Permanent Secretary said that it was essential that in the course of such investigations matters relating to them could be discussed candidly and frankly. If the content of those discussions were liable to be disclosed then the risk was that persons involved were likely to be less forthcoming, which risked frustrating not only the purpose of the investigation but also the propriety of any decisions made both during and following it. He said that good decision-making relied upon the frank exchange of internal views.

11. As to the documents listed at item (b), the Permanent Secretary said that DTI again considered that Exemption 2 applied to the information they contained, which (for the reasons set out in paragraph 10 above) should be withheld. He also said that those documents contained information that was obtained pursuant to section 447 of the Act, and its disclosure in the absence of a statutory gateway was a criminal offence under section 449 of the Act. He said that there was no statutory gateway for disclosure of section 447 information to Mr Evans, and thus Exemption 15(a) (Statutory and other restrictions) applied, which was not subject to the public interest test. As to the minutes seeking legal advice, and the advice provided (item (c)), the Permanent Secretary said that the information in those documents was covered in its entirety by Exemption 4(d) (Information covered by legal professional privilege). He also said that much of the information in the documents was obtained pursuant to section 447 of the Act and, Exemption 15(a) would apply. He further considered that, Exemption 2 would apply to the information contained in the documents, for the reasons already given. The Permanent Secretary said that DTI considered that the extracts of references to the investigation in CIB’s quarterly reports (item (d)) were likewise, covered by Exemption 2, for the same reasons. As to the submission to the Secretary of State (item (e)), the Permanent Secretary said that all of the information contained in the document and its earlier drafts was covered by Exemptions 15(a), 4(d), and 2.

12. The Permanent Secretary further said that they considered that all of the information contained in items (a) to (e) was covered by Exemption 4(c) (law enforcement and legal proceedings) because the investigation into British American Tobacco was a formal investigation which had been completed, which was one of the categories in that exemption.

13. As to Mr Evans’ subsequent request for a schedule of the withheld documents, including the date of the documents, the title of the document and the details of the sender and recipient of each document the Permanent Secretary said DTI considered that Exemption 2 covered all of that information (for the reasons given in paragraph 10 above); further that Exemption 12, (privacy of an individual) applied to the names of the sender/recipient. The Permanent Secretary also said that, although not originally cited in connection with this aspect of Mr Evans’ information request, DTI considered that Exemption 4(c) also applied to that information.

The Code of Practice on Access to Government Information

14. Exemption 2 of the 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 and information relating to rejected options;

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

15. Exemption 4 was headed ‘Law enforcement and legal proceedings’ and the relevant sections read: (a)-(b)... (c) Information relating to legal proceedings or the proceedings of any tribunal, public inquiry or other formal investigation which have been completed or terminated, or relating to investigations which have or might have resulted in proceedings. (d) Information covered by legal professional privilege. (e)-(g)...’

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

17. Exemption 15 was headed ‘Statutory and other restrictions’. Paragraph (a) read: ‘Information whose disclosure is prohibited by or under any enactment, regulation, European Community law or international agreement.’

18. In the preamble to Part II of the Code, under the heading ‘Reasons for confidentiality’, it 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.’

Assessment

19. Before turning to the substantive issue of whether or not the information sought by Mr Evans should be released to him, I shall first look at how DTI handled his information request. Until the Freedom of Information Act 2000 came fully into force on 1 January 2005, all requests for information should have been treated as if made under the Code. The Ombudsman and her predecessors have said that it was good practice, if departments refused information requests, for them to identify in their responses the specific exemptions in Part II of the Code on which they were relying in making that refusal. Also, where information had been refused, the possibility of a review under the Code needed to be made known to the person requesting the information at the time of the refusal, as did the possibility of making a complaint to the Ombudsman if, after the review process had been completed, the requester remained dissatisfied. Finally, departments were expected to respond to requests for information within 20 working days, although the Code recognised that the target might have needed to be extended when significant search or collation of material was required. DTI replied to Mr Evans’ initial information request of 14 January 2004 on 3 February 2004, well within the time scale envisaged by the Code, for which I commend them. Although their response to his review request of 16 February 2004 took somewhat longer (until 25 March 2004 - paragraph 5), I do not consider that to be unreasonable, given the nature and extent of the paperwork under consideration.

20. Mr Evans has contended that DTI should not have treated his request for a schedule of the information being withheld by DTI as a separate information request. I have seen that he first asked for the schedule in his letter of 16 February 2004 requesting a review. DTI notified him of the outcome of the review on 25 March 2004. They provided him with their response to his request for a schedule on 2 April 2004. Whether or not they should have regarded the request for a schedule as being separate, it seems to me that DTI’s doing so did not unduly delay their consideration of that aspect of Mr Evans’ information request, and he has not been disadvantaged. However, it would have been preferable if DTI had mentioned all of the exemptions on which they were relying to withhold the schedule in their letter to Mr Evans of 2 April 2004 (paragraph 12), in particular since they have for the most part handled Mr Evans’ information request in accordance with the Code.

21. I now turn to the question of whether the information sought by Mr Evans should be released to him. I should first say that Paragraph 4 of Part 1 of the Code made it clear that the Code did not require departments to provide information which was already published. Thus, as DTI have said in relation to the responses to Parliamentary Questions and the Ministerial correspondence which reflected those responses (paragraph 10 above), since such material is in the public domain, they are nor required to release it under the Code. As to the remaining information requested by Mr Evans, while DTI have cited a number of different exemptions from the Code as applying to the various elements of that information, they have cited one exemption as applying to all of the information he sought, Exemption 4(c). I shall therefore first discuss whether they were correct to do so. The terms of Exemption 4(c) were very broad (paragraph 15) and, so far as is relevant to the present case, they enabled departments to withhold any information on the understanding that it related to a formal investigation which had been completed. In the papers provided by DTI I have seen that the section 447 investigation was completed by November 2003, well before Mr Evans made his initial information request on 14 January 2004 (paragraph 2). In my view it would be difficult to sustain the argument that information about the progress of the investigation and the delays in its completion did not relate to the investigation, even though it did not touch on the substance of the investigation. I therefore conclude that DTI were entitled to rely on Exemption 4(c) as a basis for withholding from Mr Evans the information he had sought, and the schedule of the documents containing the withheld information. I should say that Exemption 4(c) is an absolute exemption and as such it is not subject to the harm test set out in paragraph 17 above. I am not, therefore, able to consider any arguments as to whether or not the harm in releasing the information outweighs the public interest in its release.

22. Since I am satisfied that Exemption 4(c) applies to the information requested by Mr Evans, I consider that no useful purpose would be served by my going on to consider whether or not Exemptions 2, 4(d), 12 and 15 likewise apply to any part of that information.

Conclusion

23. I am satisfied that DTI acted correctly in refusing to release to Mr Evans the information he sought. I do not therefore uphold the complaint.

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Last updated: 16 June 2005