Where the sun doesn't shine
When an FoI request is made, the organisation it is made to takes the first decision about disclosure. Following that, an appeal is available through the Information Commissioner (his decision, from February 2008, for this case can be found here), followed by the option of the Information Tribunal. The final two steps are an appeal to the High Court and Ministerial veto. The government had lost the first two, decided against the High Court, and took the nuclear option. It is the first time the Ministerial veto option has been used to intervene against decisions arrived at through these independent appeal mechanisms. So it's an important decision. And it is also, I believe, quite wrong. Disclosure would be in the public interest, and it should enhance not detract from good government.
The disclosure decision rests on the apparent tension between the public interest in disclosure, and the damage such transparency might do to good government. It could, the argument goes, lessen the likelihood that Ministers would offer full and frank debate.
I don't buy that. First, I'd never just accept the casual assumption that an unintended consequence of incrementally improved openness would be Ministers seeking out unminuteable settings for decisions making. If they do, the problem really isn't with the FoI Act.
But more to the point, this decision is not to publish Cabinet minutes in general. It is to publish limited Cabinet minutes regarding an extraordinarily contentious and important decision. This is an 'exceptional' and singular case, in which the public interest was weighted carefully against the general exemption rules covering disclosures that might jeopardise full and frank debate. That was done twice, by two separate appeals. This should not undermine Cabinet confidentiality. It is not a silppery slope. It should be the exception that proves the rule.
In this case, it is precisely the proper functioning of parliamentary democracy which is at issue. One suspicion is that to take us to war the Prime Minister and those around him used disingenuous, or worse, explanations and justifications to convince fellow MPs, possibly Cabinet peers, and the public, of the necessity and legality of action. Or, more prosaically, as the Information Tribunal put it:
- "criticisms...had been made of the general decision making processes in the Cabinet at the time."
A separate issue might be whether we - the press, and the commentariat, but also the public - have the maturity to deal with the notion that behind a Cabinet decision lies discord, argument and open and frank discussion. Probably not. The feral nature of much public debate will inevitably intensify the way any FoI release is poured over and used. Even so, this is a separate question. Individual non-disclosure decisions should not be our way of putting a sticking plaster over the problematic relationship between politics, the press and the public. Indeed, the FoI Act should be a solution to that problem, not fuel for it.
This decision rests fundamentally on weighing up the public interest in disclosure against the public interest in non-disclosure (meaning avoiding whatever harm may be done through the release of the information.) In this exceptional case, two independent appeals decided in favour of disclosure. Is Jack Straw, who is so directly connected to the information in question, best placed to improve upon those judgements and make the ultimate disclosure decision? If so, the veto becomes the exact point where suspicion about vested interests and secrecy eat away at an important transparency Act.
The next stage may be a judicial review of the decision. I'll be keeping an eye out for the Information Commissioner's full response. His initial statement is available here.