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Ministers were ordered to disclose confidential reviews on the identity-cards programme. The information tribunal rejected the government’s appeal against a decision that the “gateway reviews” must be published under the freedom of information act (FOIA).
The tribunal upheld the decision of the information commissioner, who regulates FOIA in the UK, in favour of disclosure even though his decision prompted government lawyers to attack him for not living in the “real world”. The office of government commerce (OGC) had refused disclosure of these specific reports, as well as all other FOIA requests for gateway reviews.
The tribunal gave the OGC 14 days to make any representations over whether any names of individuals mentioned in the reports should be redacted. Once the tribunal has decided on this issue, the OGC must disclose the reports within another 14 days.
During a four-day hearing before the three-member tribunal, a former senior civil servant said that publishing reviews of the government’s information-technology projects would provoke clashes between departments of state.
Peter Gershon, the former civil servant responsible for introducing “gateway reviews” of government information-technology programmes, said that publication of the ID-cards reviews would set a precedent leading to open confrontation between government departments.
Gershon, former chief executive of the OGC, said that confidentiality was essential to the success of gateway reviews. The government could either be open or have an effective scrutiny process – not both, he said.
But the tribunal said in its decision: “We find that the grave consequences for the gateway process which [the OGC] maintains would result from even the remotest possibility that reports would be disclosed is overstated.”
“We have accepted… that government needs to operate in a safe space to protect information in the early stages of policy formulation and development.”
“However at the time of the requests, the decision had already been taken to introduce ID cards, a bill had been presented to parliament and was being debated publicly. We therefore find that, in the circumstances of this case, it was no longer so important to maintain the safe space at the time of the requests.”
The tribunal also condemned the OGC for its responses in general to FOIA requests for copies of gateway reviews. “Although [the OGC] says [it] is not putting forward a case for gateway reviews to be subject to an absolute exemption under FOIA, it seems very like that to us.”
“The OGC seems to us to have taken the view that they are exempt despite the act, and their public utterances that they will consider each request on its own merits is difficult to reconcile with their training of those involved in the gateway-review process, their practice of not having released any gateway reviews so far and the arguments being put forward in this case.
“We cannot understand how the OGC appears to have given such internal assurances that reports would not be disclosed under FOIA. There has always been a possibility that gateway reviews would be disclosed under FOIA.
“Gateway reviews are all about the management of risk. We would have thought that FOIA would have been factored into that risk assessment because cases like this appeal were foreseeable.
“To have developed a system on the apparent assumption that there was little or no risk of disclosure is at the very least unprofessional and at variance with one of the aims of gateway reviews which is to encourage and support, in effect, more professionalism in the way programmes and projects are undertaken.”
The decision will force the government to publish more gateway reviews, although it does not mean that all such reports must be disclosed automatically in response to a FOIA request.
The information commissioner, Richard Thomas, said: “The information tribunal has confirmed my view that the public interest in disclosing the gateway review information on identity cards was stronger than any public interest in it remaining secret. Disclosure is likely to enhance public debate of issues such as the programme's feasibility and how it is managed.”
FOIA Centre commentary
The decision of the information tribunal in this case represents a significant break-through for FOIA. It is also a victory for the system for regulating FOIA, although we note that it is 28 months since the initial request was made to the OGC. This is, indeed, a very British openness.
We previously argued that the OGC’s claims of dire consequences flowing from disclosure of gateway reviews were exaggerated.
We also rejected the claim, made to the tribunal by Peter Gershon, a former senior civil servant, that we cannot have both effective scrutiny and open government. As we argued, we can only have effective scrutiny if we have open government.
Anyone in favour of open government and acc-ountability will be buoyed to see that the tribunal agreed.
And, it seems, we need not have been concerned that the chairman of the housing corporation, which refused a separate FOIA request for a report on a troubled IT programme because it contains details about a gateway review, was sitting on this tribunal. Curious, though.
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