09.01.07
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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.
Comment on this article
NHS
neutered NAO’s criticisms of IT scheme
With
obsessive official secrecy, is FOIA any use?
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