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A glimpse of the Information Tribunal Hearing

Yesterday, I managed to sit in on part of the Information Tribunal Hearing which was considering the appeal by the UK Government via Gordon Brown's Treasury agency, the Office of Government Commerce, against the Decision Notice by the Information Commissioner.

See this OGC Gateway Reviews of the Identity Cards Programme category archive for the lengthy saga stemming from my original Freedom of Information Act request in January 2005.

The Information Tribunal hearing sat for 4 days last week, from Monday to Friday, except for Thursday.

I managed to attend as a member of the public, for about two and a half hours on Friday afternoon, basically just to get a flavour of the proceedings, and to put some faces to the names I have seen in print and online over the last few months, since the appeal process was initiated.

The Information Tribunal had, sensibly, decided to combine the hearing of the OGC's appeal against the Information Commissioner's Decision Notice in my favour regarding my Freedom of Information Act request for the publication of the full Pre-Stage Zero and Stage Zero OGC Gateway Review reports regarding the Home Office's Identity Cards Programme, with that of their appeal against the similar Decision Notice about the FOIA request for just the "Red / Amber / Green" traffic light status summary of the programme. This had, by mutual agreement, been converted from a Parliamentary Written Question into a Freedom of Information Act request, on behalf of the the then Liberal Democrat Home Affairs spokesman Mark Oaten MP.

In both cases the Information Commissioner had ruled in favour of full disclosure.

Note that the Freedom of Information Act requires public authorities to disclose the requested information within 20 working days. It is now over 2 years and 3 months, since they should have done so, the Government having successfully suppressed publication of these reports, especially during the period of public and Parliamentary debate which led to the passing of the Identity Cards Act 2006.

Is this really the culture of transparency and openness which the Government claim to have been promoting with the Freedom of Information Act ?

The Tribunals Service building at 110 New Bridge Street, at the corner with Ludgate Hill is a pleasant modern office block, although the security theatre of having one's photo taken by a web camera and printed on your visitor's pass at the New Bridge Street entrance, seemed a bit privacy invasive and pointless from the viewpoint of actual security.

I was directed to the 3rd Floor reception desk to the right of the lifts, where I was told that the Information Tribunal hearing was currently in Closed Session, in Hearing Room 4, right by reception.

These are public tribunals i.e. court hearings, but there are no coach parties of tourists or crowds of photographers and journalists such as one might see at the Old Bailey or the Royal Courts of Justice.

I waited for a while by reception, no doubt boring the Clerk of the Court with the details of the the FOIA request and Decision Notices and the Appeal.

After participating in a survey about the the Tribunals Service and its facilities, the Clerk passed a note to the Chairman, and I was allowed in to the Hearing when the session became Open and public again. from about 2:15pm.

Hearing Room 4 is quite large, with five rows of tables and chairs, a court stenographer, microphones for the front row of lawyers and the Tribunal members, and a raised platform for the Chairman of the Information Tribunal John Angel, sitting in the centre, with lay member Peter Dixon sitting on his right, and the other lay member David Wilkinson on his left, facing the lawyers and the public, all under an imposing Royal Coat of Arms.

As you would expect, the front row was for the Information Commissioner's lawyers, the solicitor Janet Witkowski andd the barrister Timothy Pitt-Payne and the Office for Government Commerce lawyers the barrister Robin Tam QC and some man obviously standing in for Ms Grainne Ross the Treasury Solicitor.

Royal Coat of Arms
Exit Peter Dixon
 - Lay Member
John Angel - Chairman David Wilkinson
 - Lay Member
Witnesses (empty)   Court Stenographer   Clerk of the Court 
     Janet Witkowski - Solicitor for the Information Commissioner Timothy Pitt-Payne -
Counsel for the Information Commissioner
  Robin Tam QC
 - Counsel for the Office for Government Commerce
Ms. Grainne Ross - Treasury Solicitor (someone else was deputising)                  E
  Lawyers or Civil Servants ? Lawyers or Civil Servants ? Lawyers or Civil Servants ? Lawyers or Civil Servants ?
        Yours Truly

The Open Session lasted from about 2:15 until 4pm when there was a 10 minute break, during which time I managed to introduce myself to Timothy Pitt-Payne and Janet Witkowski, as one of the people whose original Freedom of Information Act requests had led to this hearing. They had obviously guessed that I was not Mark Oaten MP ! It was good for all of us to put a face to the names we had only seen on paper documents or emails. Mr Pitt-Payne indicated that he had read this blog, and those by Steve Woods (who has now joined the Information Commissioner's team, with his UK Freedom of Information blog now being run by the Freedom of Information Campaign) and also Heather Brooke's blog Your Right To Know.

Almost all of the speaking at this stage was done by the Information Commissioner's barrister Timothy Pitt-Payne, who obviously knows his subject., with some questions from the Tribunal Chairman John Angel

I did not get to hear Robin Tam QC for the OGC, but I did hear Timothy Pitt-Payne make his points refuting the OGC's legal submissions on the public interest tests under the Section 33: Audit Functions and Section 35: Formulation Of Government Policy, where the concept of public interest is essentially the same.

Mr Pitt-Payne spent some time definition of

"would prejudice"

which would imply that there it would have to be shown that it was more likely than not that disclosure would prejudice either the audit function or the formulation of Government policy.

Timothy Pitt-Payne seemed to provide several legal precedents and judgements by lthe Law Lords that the meaning of the second test in the legislation, that of

"or would be likely to prejudice"

was deliberately worded by the Parliamentary Draughtsmen to have a meaning close to the "would prejudice test" i.e. that there still needed to be quite a substantial effect of prejudice.

From Timothy Pitt-Payne's submissions, it seems that Robin Tam QC had been arguing that this this wording implied a much lower threshold of any risk of harm or prejudice, i.e. closer to the "any disclosure whatsosever would be prejudicial" position.

Apparently Robin Tam QC had argued that any disclosure at all would somehow prejudice the entire OGC Gateway Review process, even though, the official position of the OGC is to recognise that there is no blanket exemption under the FOI for these Gateway reports.

As Timothy Pitt-Payne said, there are plenty of exemptions to protect the identities of individuals contributing to the reports, or, in the case of the later stage Gateway Reviews,any possible commercially sensitive trade secrets or pricing information.

Mr. Pitt-Payne reminded the Tribunal of the timing issue in the requested disclosure. The OGC reports were already 18 months or a year out of date by the time they were requested in January and February 2005.

The formulation of Government policy was, in effect over, as there had already been a Draft Identity Cards Bill published, which was virtually identical to the Identity Cards Act 2006 when it was eventually passed.

There was both Parliamentary debate and debate amongst informed members of the public in the academic and IT industry communities, who would have been able to understand the significance of the reports, thereby refuting the peculiar claim by the OGC that somehow the Press and Media would distort the Reports, which is something which could apply to any disclosures of Government information at all, and therefore runs counter to the whole premise of the Freedom of Information Act itself.

The Open Session resumed until about ten to 5, at which point Timothy Pitt-Payne was due to refer to some points directly quoting from the OGC reports, so the Tribunal went back into Closed Session and I left, having got a glimpse and flavour of the proceedings, which was all I had expected.

The Chairman John Angel seemed keen to finish the Hearing on the Friday, so it could well have gone on for quite some time. Given the substantial effect which the Tribunal's ruling may have, I expect quite a detailed ruling in several weeks time.
Will the Tribunal decide that these particular (by now well out of date) OGC Gateway review reports should be fully disclosed, as ordered by the Information Commissioner, or will they make a stronger ruling that all OGC Gateway Reports should be disclosed, subject to the other exemptions under the Act ?

Conceivably the Information Tribunal could rule in favour of the OGC, which would be astonishing, and politically controversial.


Thanks for this description - I am attending the tribunal tomorrow (Weds 4th April) for the hearing of the appeal by the Dept of Health against the IC's ruling that the report by Sir William Wells into the NHS University should be disclosed.

My case also involves sections 33 & 35 (as well as 40 & 41) so I suspect I shall hear similar arguments.

It's also useful to know a bit about the room set up etc. I may be chatting to the receptionist as well as a lot of the hearing will be closed - however I intend to stay for the duration & be present for as much of the hearing as I can.

UPDATE. The Department of Health withdrew their appeal against the IC on my case, before the hearing

@ Rod - thanks for the update ! It is a shame that they did not inform you of the last minute decision to withdraw the appeal, but that is good news !

Interesting that this happened just after all the publicity the pensions policy advice given to Gordon Brown was revealed by a FOIA request

There has been some small amount of political embarrassment but the whole decision making system of Government has not collapsed as a result, which is what the Sir Humphrey's have been claiming in these Information Tribunal Appeals.

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