Home > Publications > Selected cases — Parliamentary > Selected Cases and Summaries of Completed Investigations - April to October 1998 > A.1/98
Second Report Session 1998-99
Volume 2 - ACCESS TO OFFICIAL INFORMATION
CULTURE, MEDIA AND SPORT (ARTS COUNCIL OF ENGLAND)
Refusal to disclose information about the reasons for not continuing the long-term funding of a regional theatre company
Citing the Code, the director of a regional theatre company asked the Arts Council of England (ACE) for information relating to their decision not to continue the fixed-term funding of the company. ACE gave her some of the information she sought but refused to supply the rest, citing Exemption 7.2 of their own code of practice which related to the confidentiality of records of meetings and communications with other bodies. The Ombudsman's investigation revealed that ACE had drawn up their own code of practice in 1994 at the request of their sponsoring department, and had been adhering to it, in good faith, ever since. Their own code was more prescriptive than the Code of Practice on Access to Government Information (the Information Code) and contained no harm test, unlike the Information Code, which required such a test to be applied to requests for some categories of information. Having accepted the applicability of the Information Code to all departments and other bodies within the Ombudsman's jurisdiction, which included themselves, the Chief Executive of ACE agreed to abandon ACE's own code and apply the Information Code to all future requests for information received by them. He also agreed to supply the theatre company with the remainder of the information which its director had sought, other than the note of the meeting of the Appeal Group and the comments of the Regional Arts Boards, which the Ombudsman accepted were covered by Exemption 2 in Part II of the Information Code (Internal discussion and advice).
Back to top
2.1. Mrs F complained that the Arts Council of England (ACE) refused to supply her with information to which she was entitled under the Code of Practice on Access to Government Information (the Information Code). My investigation began in May 1998, after I had obtained comments from the Chief Executive of ACE. 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.
Background
2.2. On 18 September 1997 ACE wrote to Mrs F, the director of a theatre company, to inform her that fixed-term funding of her company would end on 31 March 1998. Mrs F wrote to ACE on 1 December 1997 asking for information relating to the formal (and unsuccessful) appeal which the company had made against this decision. The information sought was:
- the composition of the Appeal Group committee
- the composition of the review panel
- a copy of the Appeal Group report
- the outcome of consultations with the Regional Arts Boards (RABs) and copies of correspondence with them
- a full explanation of the process which led to the Appeal Group's decision
- advice on the options available to the company if its advisory board did not agree with ACE's decision.
Back to top
2.3. ACE replied on 16 December enclosing a copy of 'Quality of Service: Access to Information' (the ACE Code), their own interpretation of the Information Code. They refused to provide any of the information requested, referring to section 7.2 of that document. On 8 January 1998, Mrs F sent ACE a fax asking two additional questions about their consultation with the RABs. ACE replied on 21 January, providing some but not all of the information requested and referring again to section 7.2 in respect of the information withheld. Mrs F was aggrieved that ACE did not meet her requests for information in accordance with the requirements of the Information Code.
ACE's reasons for refusing access
2.4. In his reply to Mrs F's letter of 1 December the Acting Secretary-General wrote to her to give his reasons for not providing the information which she sought. In his letter he said:
'...I am sure you will appreciate why, in exercising judgements relating to its funding activities, the Council must protect the confidentiality of specific advice and information whose disclosure, as our published procedures indicate, might harm the frankness and candour of internal discussion. (ACE's emphasis)
'...I do not consider it appropriate to advise you of the membership of the groups you mention...Our procedure does not undertake to provide reports from appeal groups. Nor am I able to share with you our correspondence with RABs. I am taking this opportunity to enclose a copy of our procedures relating to Access to Information section 7.2 of which describes those areas in which the Council will not release information.'
This approach was reiterated in the subsequent letter of 21 January.
Back to top
2.5. In his response to me at the start of this investigation, ACE's Chief Executive said that he was unclear why Mrs F considered that she was entitled to information under the Information Code. He said that in 1994 ACE had been required to draw up its own code of practice (see paragraph 2.3 above) on access to information, taking account of the Information Code and also of advice from the then Department of National Heritage (DNH) and this Office. Section 7.2 of this document states that ACE will not release certain types of information on the grounds that disclosure might harm the frankness and candour of internal discussion. He considered that the information not disclosed to Mrs F fell within that category. The Chief Executive went on to say that: 'it is not clear which requirements (ACE's emphasis) of which Code Mrs [F] is referring to here.'
Back to top
Assessment
2.6. It is clear from the response from ACE's Chief Executive that ACE relied on its own version of the Information Code when dealing with this request. I have seen a copy of the ACE Code, which is described in its introductory paragraph as 'the framework within which the Arts Council of England implements the Government's Code of Practice on extending access to information. This framework follows the Code and the guidance offered by the Department of National Heritage response to the Code.' One of my officers spoke to DNH about the origins of ACE's own document and was told that DNH itself had no guidance of their own on the operation of the Information Code. They agreed that in 1994 they had asked ACE to advise them how they would be interpreting it and, indeed, they had amended the draft ACE subsequently sent them.
2.7. I have compared the ACE Code with the Information Code. In a number of respects there are significant differences. The list of exemptions (paragraph 7 of ACE's document), the basis for withholding information from applicants, gave me particular cause for concern. There are fifteen exemptions listed in Part II of the Information Code, clearly defined and set out. The ACE Code omits several of these altogether, although I recognise that in those cases they are exemptions which are very unlikely ever to be relevant to ACE. I am much more concerned, however, with the exemptions which ACE have listed. These exemptions are not given with the full wording as set out in the Information Code. For example, Exemption 2 in Part II of the Information Code (which I choose because it is, in effect, the exemption relied upon by ACE in withholding information from the company) 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.' ACE's own definition reads:
'The Council will not release information whose disclosure might harm the frankness and candour of internal discussion including:
'internal confidential opinion and advice;
'confidential communications and records of meetings;
'records of meetings with funded organisations;
'initial projections and assumptions relating to internal policy analysis, analysis of alternative policy options and information relating to rejected policy options.' Back to top
This, as with all the other exemptions listed, is couched in terms which do not admit the possibility of information falling within those categories being released. The Information Code has, at the head of Part II, a general preamble of considerable significance relating to balancing the possible harm in disclosure against the public interest in obtaining information—an important element of a number of the Code exemptions. This preamble, with its clear guidance towards a presumption of disclosure and the need to avoid causing injustice to individuals, is entirely absent from the ACE Code. I note also that the document I have seen is dated February 1998: a footnote to it informs me that it was revised in 1996 and that it will be 'kept under review'. It seems, however, that no account has been taken of the revised Information Code which was issued in January 1997.
2.8. ACE have told me that in 1994, before the inception of the Information Code, their sponsoring department required them to draw up their own code of practice. This they did, in good faith, and have been following that document ever since. [I have already noted (paragraph 2.5) that in March 1994 both DNH and this Office were sent ACE's draft Code for comment. At that time, all government departments and public bodies were considering how they would deal with requests for information made under the terms of the Code: the Ombudsman himself was deciding how he would approach his new role of policing the Code and, of course, at that time had seen no cases involving the refusal of information. However, the comments made at that time both by DNH and by this Office were not meant to be regarded as definitive interpretations of the Code: indeed the letter from this Office to ACE made it clear that the Ombudsman would have to treat any complaint made to him about ACE's code entirely on its individual merit. I note also that DNH's comments on ACE's draft code included the suggestion that the presumption in favour of openness and the application of the harm test should be clearly set out in a preface to the section relating to the information which ACE would not release.] The Chief Executive also told me that ACE had not seen the 1997 revision of the Information Code or the Cabinet Office Guidance on the Code (the Guidance) issued to departments on its implementation. It is of concern to me that DNH did not make sure that their sponsored body was supplied with these two documents in January 1997. The ACE Code effectively applies a blanket ban on the release of certain categories of information and is demonstrably more prescriptive than the Information Code. The Information Code applies in its entirety, to 'those Government Departments and other bodies within the jurisdiction of the Ombudsman'. It is not a document which can be paraphrased or re-written to suit the perceived needs of individual organisations. However, I have no reason to doubt that, in producing their own version of the Information Code, ACE were following the advice of their parent department and trying to comply with the government's policy on open government as they understood it.
Back to top
2.9. Now that my investigation has clarified for ACE their obligations under the Information Code, I put it to the Chief Executive that immediate steps should be taken to adopt the Information Code and to bring it to the attention of staff. In reply he said that ACE would do this. I welcome his response.
2.10. I turn now to the relevance or otherwise of the exemptions in Part II of the Information Code to the information requested by the company. I have already compared ACE's version of Exemption 2 with the definition in the Information Code (paragraph 2.7) and it is the latter definition with which I am now concerned, although I recognise that ACE's decision was based upon the application of their own version of this exemption. (No other exemptions were cited). The Guidance says that departments should decide on a case by case basis whether or not information falling within any of the categories in this exemption should be released. In each case any harm which might arise from disclosure should be weighed against any public interest there might be in making the information available. How does this apply to the information at issue? Mrs F asked for the information set out in paragraph 2.2 above. The first two of these requests relate purely to factual information. It is clear that ACE refused to provide this information because they felt 'it might harm the frankness and candour of internal discussion'. I do not see the applicability of that exemption to this information. Exemption 2 is designed to protect the process by which decisions are reached, not the identities of those participating in the process. And while it may be (on the basis of other exemptions in Part II of the Information Code) appropriate to withhold the identities of individuals in certain circumstances, for example while the process of deciding whether or not to give funding remains live, Mrs F's request was made after the company's appeal against the funding decision had been rejected. Exemption 2 includes a harm test which should be applied at the time when the request for information is made. I can see no harm now in the composition of the Appeal Group Committee and of the Advisory Panel on Drama being revealed to the complainant and I so recommend.
Back to top
2.11. I turn now to the third item of requested information: the Appeal Group report. Is the information contained in the note of the meeting of the Appeal group disclosable? I have seen that, as well as factual information, the note contains details of advice given to the Appeal Panel and also records views expressed about the company at the meeting, although these are not ascribed to individuals. I am of the view, therefore, that the information contained in this note is covered, in principle, by Exemption 2. Once again, however, I need to consider the harm test. It may be argued that, because the appeal process is now over and the decision made, no harm can be caused by making available information relating to the wider deliberative process by which this appeal was decided. I do recognise, however, that all decisions of this nature involve sensitivities, both on the part of the organisation whose appeal is being considered, and the Appeal Group itself. I also recognise that, given ACE's version of Exemption 2 indicated that records of meetings would not be released, the members of the Appeal group would have conducted their discussion on the understanding that it was confidential. On this basis, I accept that Exemption 2 should apply in this case to the note of the Appeal Group meeting. I do not however endorse the view that all records of meetings are covered for all time by the simple application of this exemption; indeed, the correct version of Exemption 2 makes no reference to records of meetings as such. Each case should be dealt with on its merits.
2.12. Turning to the fourth item of information asked for: the outcome of the consultations with the RABs and the request to have copies of the correspondence with them. The ACE letter of 21 January 1998 to Mrs F gave some information about the involvement of the RABs, to the extent (in my view) of making it clear that the RABs were invited to make any comments they might wish to about the company's application for fixed-term funding. I have established from information provided by ACE that this consultation took place very shortly before the date of the Appeal Group meeting. Not all RABs responded. Of those who did respond, most did so by telephone: the others replied by E-Mail. This, as with the composition of the ACE groups, is essentially factual information—and I do not see it as covered by Exemption 2. I see no reason, therefore, why Mrs F should not be told which RABs responded to ACE's request for comments. The responses of the RABs are referred to in the note of the Appeal Group meeting discussed in the previous paragraph. As this, in my view, constitutes internal advice of a similar kind to that referred to there, the same arguments clearly apply. I believe, therefore, that ACE are entitled, under Exemption 2, to withhold the nature of the advice given to them by the RABs.
Back to top
2.13. The fifth item of information requested by Mrs F was details of the procedures and processes that had been carried out in arriving at the decision not to grant the company further funding. ACE's reply of 16 December 1997 did not deal specifically with this issue, and I can only assume that ACE intended section 7.2 of their version of the Information Code to apply to it. In their reply to this Office following the issuing of the statement of complaint, however, ACE suggested that this request had been addressed by sending Mrs F a copy of a document setting out ACE's complaints and appeals procedure. Indeed, the initial letter from ACE informing Mrs F that the company's funding was about to cease purportedly attached a copy of this document. (It appears not to have been enclosed but was presumably supplied later as an appeal was lodged). Mrs F's request was made, however, after the appeal had been rejected. I see no reason to suppose, therefore, that it was this document she was in search of but, rather, a more general account of the various stages in the process which had led to the cessation of the company's funding from the original conclusions of the Budget Working Group through to the decision of the final Appeal Panel. (NB: My attention was later drawn to the information about negotiating subsequent agreements contained in the funding agreement but it is my view that the company wanted something more personalised than this.) In my view, this could have been provided to Mrs F without disclosing the more specific information which I have accepted ACE were entitled to withhold, particularly given the general commitment contained in Part I of the Information Code to explain administrative decisions to those affected. This could have been done in this case, in general terms, but was not. I recommend that Mrs F be provided with this information.
2.14. Mrs F's final request was for advice on the options open to her company should their advisory board not agree with ACE's decision to cease their fixed-term funding. This request appears to me to be applicable not only to the question of how alternative funding might be secured but also as to how the company might take further their dissatisfaction with ACE's decision once their appeal had been turned down. The first of these was covered by the Acting Secretary-General in his letter of 16 December. He mentioned the company's eligibility to apply for project funding in 1998/99, enclosed a brochure about the procedure and gave the deadline for applications. He also confirmed the company's eligibility to apply for round four of ACE's programme and enclosed booklets in respect of that. I note also that the document setting out ACE's complaints and appeals procedure includes within it a reference to the work of this Office and how applications should be made. I am satisfied that ACE provided Mrs F with appropriate information both in respect of possibilities for future funding and in terms of pursuing any complaint of maladministration or a failure to provide information. I do not uphold this part of the complaint.
Back to top
Conclusion
2.15. ACE did provide some of the information Mrs F had requested but withheld much of the rest. They did so primarily because they relied upon a bespoke version of the Information Code which suffered from significant weaknesses. However, I accept that in adopting their own version of the Information Code they acted in good faith and on the advice of their sponsoring department and, in the circumstances, their action was reasonable. ACE have agreed to ensure that in future they adhere to the authorised version of the Information Code, and that this is reflected in any literature they may seek to issue. Applying the Information Code to the information sought, I am satisfied that advice and opinions recorded in the note of the Appeal Group meeting (which incorporated the views of RABs) should be withheld under Exemption 2 in Part II of the Code. It is my view that the composition of the original review group and the Appeal Group, as well as details of which RABs did or did not respond to ACE's requests for comments, is not protected under the Information Code and that this information should be released to Mrs F. I believe also that ACE could have provided a general explanation of the procedures that had been followed in deciding to bring to an end the company's fixed-term funding without breaching any of the exemptions in Part II of the Information Code. I am satisfied that ACE provided Mrs F to the extent that was appropriate with adequate general information to guide her as to what steps the company might take in the future. I invited the Chief Executive of ACE to release information to the company in accordance with the recommendations in this report. In reply he expressed the Council's embarrassment at the situation in which, on the strength of advice from DNH and the Ombudsman, ACE had drawn up its own Code which it had been following, in good faith, since 1994. Now that the earlier advice had been found by this Office to be seriously misleading, he agreed that the ACE Code should be withdrawn. He also undertook to ensure that ACE would, in future, adhere to the Information Code, and confirmed that ACE staff had already been instructed accordingly. In addition, the Chief Executive agreed, in the changed circumstances brought about by this investigation, to implement the recommendations set out in this report.
Total screening and investigation time = 31 weeks
Back to top
Previous < Contents > Next
|
