Peering into the laundry basket

In my blog All will be revealed in due course, perhaps (posted 28 Mar 2017) I reported on the oral evidence that David Prout of the Department for Transport (DfT) and Simon Kirby of HS2 Ltd (see footnote 1) had given to the House of Commons Public Accounts Committee, and the news they had given that HS2 Ltd had been invited by the DfT to review the programme for HS2 Phase 1 and advise if the estimated completion date should be put back. Since no details of the findings of this review had been made public in the period since, I suggested in my blog that someone might want to seek to obtain these details by making a Freedom of Information (FoI) request, and added a postscript subsequent to the blog being posted confirming that such a request had been submitted (see footnote 2).

The person who heeded my clarion call was no other than Dr Paul Thornton, and there could be no one better to press for the release of the information. Dr Thornton is a long-time opponent of the HS2 project, and is very well versed in the ins and outs of FoI requests (see footnote 3).

He shot to fame in 2013 when the Information Commissioner found in his favour over the refusal by the Cabinet Office to disclose HS2 Project Assessment Reports prepared by the Major Projects Authority that had rated the HS2 project as having an “amber red” risk assessment. The subsequent overruling of the Information Commissioner’s decision to require publication by the then Transport Secretary, employing a rare emergency veto power, led to Dr Thornton instigating judicial review proceedings which the Information Commissioner joined once underway (see footnote 4).

In June 2015, following a UK Supreme Court majority ruling that the use of this veto in another case had been inappropriate, chiefly on the grounds that the veto cannot be used in an environmental information case and that “a decision of a judicial body should be final and binding and should not be capable of being overturned by a member of the executive” (see footnote 5), the Government announced that it was “withdrawing from the judicial review proceedings” and released the “secret” MPA project assessment review reports from 2011 and 2012, which exposed public pronouncements made at the time as disingenuous (see footnote 6).

The initial response that Dr Thornton has received to his FoI request for the findings of the HS2 project timescale review is very reminiscent of the early stage of his quest to get the MPA project assessment reviews made public. Despite him specifying that the request should be treated “under the provisions of the Environmental Information Regulations” the DfT has concluded that the “requested information relates to planning and governance and does not fall within the definition of environmental information” and has decided to “process [the] information under the FOI Act”. Access to the requested information has been refused, as permitted by the FoI Act, on the grounds that “disclosure would (or would be likely to) inhibit the free and frank provision of advice or exchange of views or otherwise prejudice the effective conduct of public affairs {sections 36(2)(b)(ii) and (c)}”. The DfT reply acknowledges that the application of Section 36 of the FoI Act is subject to a public interest test, but concludes that the public interest considerations do not outweigh the arguments for not releasing the information.

Dr Thornton has requested an internal review of the DfT’s decision, which is the next step in the formal process (see footnote 7). In his request he contests the assertion that the Environmental Information Regulations are not applicable, and points out that the reasons for refusing access to information permitted by Section 36 of the FoI Act are not provided by the EIRs. Notwithstanding, Dr Thornton also disputes that the prejudice test of Section 36 can properly be engaged in this case.

It is interesting to speculate, on the basis of the decision reached by the Information Commissioner in the earlier case, what his successor might make of this latest refusal to disclose HS2 project information. In his Decision Notice for that case, the Commissioner found that the information being requested was “environmental”, not by being environmental data of itself but in view of the impact that the HS2 project would have on the environment (see footnote 8). Whilst the determination of the case under the provisions of the EIRs effectively removed the Section 36 exception, it introduced a new one excepting the disclosure of communications within and between government departments (“internal communications”). The Commissioner found that this exception, provided by EIR regulation 12(4)(e), was engaged in respect of the disclosure of the MPA project assessment reviews (see footnotes 9 and 10).

Overall though, it was the Information Commissioner’s view that, whether the FoI or the EIR exceptions was invoked, “the public interest in maintaining the exception does not outweigh the public interest in disclosure” (see footnote 11). Whilst we should recognise that the granting of Royal Assent for the HS2 project might have some influence on any reassessment of the public interest weight of information about the project, the precedent set by the Information Commissioner in June 2013 provides a high level of confidence that, should Dr Thornton take this current request to the Commissioner, he would be likely to win.

The idiomatic expression that warns about the folly of washing dirty linen in public seems to be advice that is well heeded in government circles. The risk that public access to government’s deliberations might discourage officials from “speaking truth to power” is a convenient excuse for keeping the lid of the laundry basket firmly shut, and the soiled linen safe from prying eyes. However, I am far from convinced that the average battle-scarred civil servant is a fragile plant that has to be tenderly nurtured and protected from the rough winds that shake its “darling buds” (see footnote 12).

The French language alternative expression pas devant les domestiques probably strikes closer to home in this respect. In our subservient position, we – the plebeians – should expect only to be told what is good for us to hear, and we should not be encouraged, in any way, to seek to question those who presume to govern us. In truth, of course, it is they who are our servants, and, other than in very exceptional circumstances, the excuse that disclosure “would prejudice the free and frank exchange of views” between the Executive and its advisors smacks far too much of the picture of the working of government painted by Yes Minister.

Footnotes:

  1. Both of whom have since announced their departures from their posts.
  2. The request has been given the identity FOI17-1740 by HS2 Ltd.
  3. For example, at the time that this blog was first posted Paul’s page on the What Do They Know website listed 67 requests in his name.
  4. See the article Minister’s bid to keep HS2 report secret ‘is unlawful’: Transport secretary used wartime gagging order to stop document being released, Ray Massey, Mail Online, 9th April 2014.
  5. See paragraph 115 of the judgment R (on the application of Evans) and another (Respondents) v Attorney General (Appellant), The Supreme Court of the United Kingdom. 26th March 2015.
  6. See the webpage HS2: Major Projects Authority project assessment review reports, Cabinet Office, Department for Transport, High Speed Two (HS2) Limited and Infrastructure and Projects Authority, 25thJune 2015 (date of first publication).
  7. Paul’s appeal for an internal review is included in the correspondence reproduced on the webpage devoted to his FoI request on the What Do They Know website.
  8. See paragraph 20 in the document Environmental Information Regulations 2004 (EIR) Decision notice Reference FER0467548, Information Commissioner’s Office, 6th June 2013.
  9. See paragraph 23 in Decision notice Reference FER0467548.
  10. Very soon after Decision notice Reference FER0467548 was published, HS2 Ltd minutes were discovered that confirmed that the report had been provided to HS2 Ltd. It could therefore no longer be claimed to be an internal document; HS2 Ltd being a separate public body. In the light of that further evidence, in the pre-tribunal exchange of documents in the appeal of the Information Commissioner’s decision the Commissioner proactively conceded that Section 12(4)(e) should not have been engaged at all.
  11. See paragraph 48 in Decision notice Reference FER0467548.
  12. Both I in All will be revealed in due course, perhaps and Dr Thornton in his internal review request for FOI17-1740 refer to Philip Rutnam’s response to the Chair of the House of Commons Public Accounts Committee that the DfT “will need to see what the report is first” before deciding on whether it would be published. I feel that those few words epitomize the Executive’s approach to open government, and shine a light on the real reason why publication has been withheld.

Acknowledgement: I am very grateful to Dr Paul Thornton for checking the factual content of this blog, and for his helpful suggestions for improvements.

 

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