Office of Government Commerce v Information Commissioner (Rev 1)

Parliamentary privilege prevents a court or tribunal from determining allegations about the impropriety, inadequacy, accuracy or veracity of parliamentary proceedings. A Parliamentary Select Committee’s opinion on an issue for judicial determination is generally irrelevant and should not be used to resolve that issue, although historical facts, uncontested evidence and the scope of parliamentary scrutiny may be considered.

Under the Freedom of Information Act 2000, sections 33 and 35 create qualified exemptions. Section 35 does not create a presumption in favour of non-disclosure. The public interest in disclosure must be balanced against the public interest in maintaining the exemption in the circumstances of the particular case. A decision-maker may order disclosure only of information held at the relevant time and covered by the request, although a gist or summary may be required if it summarises the requested information.

The Office of Government Commerce appealed against two decisions of the Information Tribunal concerning requests for gateway reviews of the Government’s identity card programme. The Tribunal had upheld Information Commissioner decision notices requiring disclosure under the Freedom of Information Act 2000, subject to redactions and further disclosure of specified information.

The appeals raised questions about qualified exemptions under sections 33 and 35, the public interest test under section 2, the relevance of Parliamentary Select Committee material, Parliamentary privilege, and the Tribunal’s power to order disclosure of information not contained in the requested reviews or not held when the requests were made.

1. The appeals were allowed. The Tribunal’s first decision and supplemental second decision were quashed. The appeals from the Commissioner’s decisions were remitted for fresh determination, provisionally before a differently constituted Tribunal.

2. Parliamentary privilege is founded on freedom of speech in Parliament and mutual respect between the legislative and judicial branches. Courts cannot determine allegations of impropriety, inadequacy, inaccuracy or lack of veracity in parliamentary proceedings. A Parliamentary question and answer are proceedings in Parliament. A court may receive parliamentary material as historical fact, and may consider uncontested evidence or the scope and nature of parliamentary scrutiny, but it must not rely on a Select Committee’s opinion or finding on an issue it has to determine. The Tribunal therefore erred in relying on the opinion of the Select Committee on Work and Pensions. That error alone required both decisions to be quashed.

3. Sections 33 and 35 of the Freedom of Information Act 2000 create qualified exemptions. Section 35 is a class exemption, but it does not establish a presumption that information within it should be withheld. Once an exemption is engaged, the decision-maker must balance the public interest in maintaining the exemption against the public interest in disclosure. The Act recognises a general public interest in disclosure, while the strength of both competing interests depends on all the circumstances.

4. The Tribunal’s reasoning on the public interest was insufficiently clear. It did not adequately explain the public interest in disclosure, the significance of the prejudice it had found under section 33, or whether the exceptional importance of the identity card programme affected the outcome. It also failed to state clearly the implications of disclosure for future gateway reviews. Its criticism of the OGC’s training was, however, a factual matter which the Tribunal was entitled to consider and was not perverse.

5. The Tribunal had no power to order disclosure of information which the public authority did not hold when the request was made, or which was not covered by the request. A gist or summary may be ordered under section 50(4), but it must summarise information within the scope of the original request and cannot require alternative information to be created or disclosed.

6. The court expressed no final view on the date at which subsequent changes of circumstances must be assessed under the Act, or on the separate data-protection arguments concerning the status and names of participants.

1. Information Tribunal upheld the Commissioner’s decision notices in decisions dated 2 May 2007 and 4 June 2007, subject to redactions and specified further disclosure.
2. High Court (Administrative Court) quashed both Tribunal decisions and remitted the appeals from the Commissioner’s decisions for fresh determination.