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By Bill Goodwin
Government lawyers attacked the information commissioner for not living in the “real world” after ordering disclosure of confidential reports on the identity-cards programme.
The battle over the reports on reviews of the ID-card programme has set ministers against the information commissioner, Richard Thomas, the government-appointed regulator of the UK freedom of information act (FOIA).
The government is appealing his decision in a case due to be heard in a four-day hearing before the information tribunal in March. If the tribunal backs the commissioner, it will set a legal precedent that could force government departments to reverse its policy of refusing to disclose under FOIA such “gateway reviews” of public sector information-technology projects, although its ruling can be appealed to the high court.
The ID card programme, under which identity cards would be distributed to UK citizens about whom information would also be collated into a huge database, is one of the government’s big IT projects being undertaken amid much secrecy.
In legal papers filed to the tribunal, the office of government commerce (OGC) accuses Thomas of failing to understand the workings of Whitehall. It claims that Thomas has rejected clear and uncontested evidence that publishing the reports would cause “substantial harm”.
The OGC, an agency of the treasury, argues in its submission to the tribunal that Thomas has failed to understand the need for civil servants to be able to offer frank advice to gateway reviewers without the fear that their views could become public.
“The commissioner's office has no particular exp-ertise in the field in which the OGC operates, namely the confidential review for effectiveness and efficiency of programmes and projects of a commercial nature or including substantial commercial content,” it says.
In the “real world”, it continues, civil servants would “feel inhibited from providing adverse information or expressing adverse opinions” if there were a risk that the information would be disclosed to the public.
The submission claims that publication of gateway reviews could damage IT projects if the information were presented out of context. “Misquotation or out-of-context quotation, following public disclosure of such reports, of frank and candid observations or comments could damage public confidence in programmes or projects that are very much in the public interest.”
The information commissioner’s office disputes these claims. It has filed papers accusing the OGC of treating gateway reviews as though they were in a class of documents absolutely exempt from disclosure under FOIA.
“No explanation is given as to why this category of report is particularly likely to be misunderstood as compared with other documents generated by public authorities,” the information commissioner’s office says in its submission to the tribunal.
It also expresses surprise at the OGC’s con-clusion that civil servants would fall below the standards expected of them if gateway reviews were published.
The government is fighting the case despite pressure from three committees of MPs to release information on gateway reviews.
Richard Bacon, Conservative MP for South Nor-folk and a member of parliament’s public accounts committee, said that the OGC's case was unsustainable. “This is the same argument as to why you could not report parliament in the 18th Century.
“In the real world, what would happen if the public discusses public policy? Transparency is an idea that government should get used to. The evidence is that lack of transparency over gateway reviews has not worked.”
Another version of this article first appeared in Computer Weekly.
FOIA Centre commentary
At its core, the OGC’s argument for secrecy in this case is one that public bodies have used several times to justify refusing particularly sensitive FOIA requests. In essence, the argument is that the public cannot be trusted with information because people will not understand it or handle it properly.
But the argument does not end with this breath-taking condescension towards the public. The argument goes that only the government can be trusted with such sensitive information. With its disastrous track record on everything from handling data on overseas convictions for British citizens to analysing intelligence on a fantasy programme to build weapons of mass destruction by a “rogue” state, the public might wonder why the govern-ment’s view of specific information should be placed in higher regard than any other party’s.
And, with a final flourish, the government argues in this case that only it can really decide between openness and secrecy: even the information commissioner is ill equipped to be able to make a proper judgement.
Richard Bacon, the Conservative MP, has seen this case exactly right. In the real world, the public needs transparency. In the real world, so does the government, although it often fails to understand this essential concept. And the government is, albeit gradually and begrudgingly, having to learn to live with it.
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