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    Thursday, 10 December 2009

    'You can be open or you can have government': Straw issues second FOIA veto

    It has been announced that Jack Straw as Justice Secretary has issued a second veto certificate under section 53 of the Freedom of Information Act 2000. Such a certificate entails that a public authority need not comply with an order of the Information Commissioner requiring disclosure of information under the Act.

    In this instance, an application had been made for the release of minutes of meetings of a Cabinet committee on devolution from 1997. The Cabinet Office confirmed that it held the information sought, but refused to disclose it under the section 35 exemption. That provision allows the withholding of information relating to, inter alia, the formulation or development of government policy. The Information Commissioner's Office concluded in June that the public interest in maintaining the exemption did not outweigh the public interest in disclosure, and so ordered the release of the minutes.

    The Information Commissioner, Christopher Graham, has issued a statement in response to today's veto of this decision. In that, he indicates a concern that "the government may routinely use the veto whenever he orders the disclosure of the minutes of Cabinet proceedings, irrespective of the subject matter or the age of the information".

    For his part, Jack Straw asserted that the decision had not been taken lightly (for the full decsions, see here). This was (somehow) an exceptional case where release of the information sought may impinge upon the convention of ministerial responsibility, and hence impact upon the effective operation of Cabinet government. It is difficult to put out of mind the finding of Lord Chief Justice Widgery (hardly a thorn in the side of the Establishment!!) as long ago as 1975 (hardly an era of unrestrained open government!!) that the narration of events that had taken place in Cabinet ten years previously could hardly by that time be said to risk undermining the duty of confidence owed by ministers to the Cabinet (Attorney General v Jonathan Cape [1976] QB 752 - the Crossman Diaries case). Straw does seek to address this issue, but he is not persuasive. He also seems to suggest that because there is plenty of information equivalent to that held in the minutes already in the public domain, this stands against the further disclosure now. This is a novel, counterintuitive and - if sustained - worrying development.

    The only other such veto was issued earlier this year in the case of Lamb (1,2,3,4). In that instance, the veto power was exercised following a ruling of the Information Tribunal that confirmed the view of the Commissioner. On this occasion, Straw has acted in advance even of the pending hearing due before the Tribunal in January 2010. It is an insidious power. In general, its use emphasises the ultimate subordination of the freedom of information regime to political imperatives. On this occasion, it also highlights a seeming indifference to due process. It controls the executive arm of government (in some measure), but manifestly not the Executive.

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