Government will take FOI case to High Court

The Office of Government Commerce (OGC) will go to the High Court in an attempt to overturn an Information Tribunal ruling on access to controversial Government reports.

An anti-ID card activist and a Liberal Democrat MP asked for copies of confidential reports into the progress of the ID card project run by the Home Office. They were refused, but the Information Commissioner backed their case and ordered the release of the papers, called Gateway Reports.

The Government appealed to the Information Tribunal, which also backed the release of the papers earlier this month. It has now appealed to the High Court in an effort to keep the reports secret. The Information Commissioner's Office (ICO) has said it will defend the case in the High Court.

Gateway Reports were designed as a safety mechanism for large government projects. They are intended as an honest assessment of the cost and likelihood of success of projects carried out at crucial junctures in projects' development.

The OGC has argued that the reports must stay confidential in order to be effective because if they were going to be made public then civil servants would not give an honest assessment of a project's failings.

The Information Tribunal said it was not comfortable with any blanket exemption for Gateway Reports.

"Although [OGC lawyer] Mr Tam says he is not putting forward a case for [reports] to be subject to an absolute exemption under [the Freedom of Information Act] it seems very like that to us," said Tribunal chairman John Angel in the ruling. "He says that the combined extent of the harm which will flow from disclosure is so overwhelming that there can be very few exceptions and then only possibly after a long period of time, say 30 years."

Angel said that if Parliament had wanted a blanket exemption to apply, it would have mandated that in the Freedom of Information Act.

"[The OGC] does not agree with the Tribunal's findings on where the public interest lies in relation to what information should be disclosed and what it is appropriate to withhold," said an OGC statement. "In the Government's view, disclosure would seriously undermine the effectiveness of the Gateway process, as confidentiality is essential to the whole process.

“The Gateway process is a crucial management tool to improve the success of the government's projects and programmes. In the Government's view it is not in the public interest to put that effectiveness at risk through disclosure of the information contained in the two reports concerned in this case," said the statement.

The ICO said that it understood the Government's position, but believed that it had not got the balance of public interests right. "In reaching his decision, the Information Commissioner was aware of the importance the government attaches to the Gateway Review process and the balance between public accountability and transparency, and maintaining public confidence in the robustness and effectiveness of the Gateway Review process," said an ICO statement.

"However in these cases he was not persuaded that the Gateway Review process would be damaged by the disclosure of this information. The Commissioner concluded that disclosure is likely to enhance public debate of issues such as the programme’s feasibility and how it is managed," said the statement.

The appeal against the Tribunal ruling will not be a re-run of the entire case; the OGC can only appeal on specific points of law.

Influential House of Commons committee the Public Accounts Committee has already recommended that Gateway Reports be made public, as has the Work and Pensions Committee.

It emerged in the Tribunal hearing that Government employees had been told that their comments to the Reports would remain confidential. This approach was attacked by Angel.

"We cannot understand how the OGC appears to have given such internal assurances that reports would not be disclosed under the FOI Act," he said. "There has always been a possibility that GRs would be disclosed under the FOI Act. GRs 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 GRs which is to encourage and support, in effect, more professionalism in the way programmes and projects are undertaken," said Angel.