The public interest test

• Which public interest arguments are relevant to the exception?
  
  • Safe space arguments
  • Chilling effect arguments
  • Record-keeping arguments
  • Collective responsibility
  • Government unity and effectiveness
  • Identification of officials
  • Legal advice
  • Commercial interests
  • Public interest in disclosure

If you have determined the requested information is internal communications, the exception is engaged. You must still disclose the information unless you can demonstrate the balance of the public interests favours the exception being maintained.

Which public interest arguments are relevant to the exception?

Although a wide range of internal communications are caught by the exception, not all public interest arguments are relevant to regulation 12(4)(e).

Your public interest arguments should focus on the protection of internal deliberation and decision-making processes. This reflects the underlying rationale for the exception: to protect a public authority’s need for a ‘private thinking space’.

Some types of internal communication, eg legal advice or commercially sensitive information, may be better protected under other exceptions. This allows you to take other effects of disclosure into consideration in carrying out the public interest test.

If more than one EIR exception applies, you can aggregate the public interest factors relevant to all applicable exceptions, when considering the public interest test.

The relevant factors must be balanced against the public interest in disclosure. Regulation 12(2) provides that you should apply a presumption in favour of disclosure. This means that you are likely to have to disclose some internal communications, even if disclosure has a negative effect on your internal deliberation and decision-making processes.

Arguments should always relate to the content and sensitivity of the information, and the circumstances of the request. There is no automatic public interest in withholding information just because it falls within this exception. Neither should there be a blanket policy of non-disclosure for a particular type of internal document.

Arguments about protecting internal deliberation and decision-making often relate to preserving a safe space in which to debate issues away from external scrutiny, and preventing a ‘chilling effect’ on the exchange of free and frank views in future. Their weight will vary from case to case, depending on the timing of the request and the content and context of the particular information in question.

Safe space arguments

The ICO accepts you need a safe space to develop ideas, debate live issues and reach decisions away from external interference and distraction. This may carry significant weight in some cases.

The need for a safe space is strongest when the issue is still live. Once you have made a decision the argument will carry little weight. The timing of the request is therefore an important factor. This was confirmed by the Information Tribunal in DBERR v Information Commissioner and Friends of the Earth (EA/2007/0072, 29 April 2008):

This public interest is strongest at the early stages of policy formulation and development. The weight of this interest will diminish over time as policy becomes more certain and a decision as to policy is made public.

Where an issue is still under active consideration, the public interest does not always favour maintaining the exception, regardless of the sensitivity of the information. The following case concerned the application of section 35(1)(a) FOIA and is applicable because it concerns the weight of safe space arguments in considering the balance of the public interests.

Since, as with regulation 12(4)(e), the exemption at section 35(1)(a) can potentially capture a very wide range of information, to accept the department’s argument could result in a lot of non-sensitive information being withheld without any good cause.

The Tribunal’s rejection of this argument was upheld in the subsequent appeal to the Upper Tribunal. (Department of Health and Social Care v Information Commissioner, GIA/1552 and 1553/2019, [2020] UKUT 299 29 October 2020, Paragraph 59)

You may need a safe space after a decision is made, in order to properly promote, explain and defend the key points. You need to explain why this safe space is still required at the time of the request. This safe space only lasts for a short time, and once you have made an initial announcement, there is likely to be increased public interest in scrutinising and debating the details of the decision.

Chilling effect arguments

Public authorities often argue that the disclosure of internal discussions inhibits free and frank discussions, and that the loss of frankness and candour damages the quality of advice, leading to poorer decision-making. This is known as the chilling effect.

Civil servants and other public officials are expected to be impartial and robust in meeting their responsibilities, and not easily deterred from expressing their views by the possibility of future disclosure. It is possible that the threat of future disclosure could actually lead to better quality advice. Nonetheless, the possibility of a chilling effect cannot be dismissed out of hand.

Chilling effect arguments operate at various levels. Arguments about a chilling effect on live internal discussions are likely to carry significant weight. Arguments about a chilling effect on closely related live discussions may also carry weight. Once relevant discussions have finished, the arguments become more speculative as time passes and it is harder to make convincing arguments about a generalised chilling effect on all future discussions within a public authority.

However, Tribunals are generally sceptical of such arguments. In Davies v Information Commissioner and the Cabinet Office GIA/2757/2017 [2019] UKUT 185, 11 June 2019 the Upper Tribunal stated at paragraph 25 that:

There is a substantial body of case law which establishes that assertions of a “chilling effect” on provision of advice, exchange of views or effective conduct of affairs are to be treated with some caution.

There are two main reasons for such caution. Firstly, since FOIA and EIR were introduced in 2005, public officials now recognise that it is not possible to guarantee the confidentiality of their advice or deliberations. Secondly, civil servants and other public officials are expected to be impartial and robust when giving advice, and not easily deterred from expressing their views by the possibility of future disclosure.

In the event that Commissioner receives a complaint, it is therefore important that you fully explain why the chilling effect is relevant. This may include explaining the stage which the relevant advice process or decision-making process has reached and how closely it relates to other ongoing or future processes that you believe may also be inhibited.

In summary, the ICO does not consider that chilling effect arguments automatically carry much weight. The weight accorded to such arguments instead depends:

• on the circumstances of each case, including the timing of the request;
• whether the issue is still live; and
• the content and sensitivity of the information in question.

If the ICO receives a complaint, the onus is on you to make your case to us. Without these explanations, we cannot attribute any significant weight to your arguments.

Record-keeping arguments

Arguments that disclosure leads to public authorities keeping less detailed or inadequate records of discussions, and that this harms future internal deliberation, carry little weight. You should appropriately address failures to keep adequate records through your own processes and effective management. If any department endorses or permits a loss of detailed content in your records, it will be difficult to argue that this loss of detail is harmful.

This follows the approach of the Information Tribunal in Guardian Newspapers Ltd and Heather Brooke v Information Commissioner and BBC (EA/2006/0011 & 0013, 8 January 2007) and DfES v Information Commissioner and the Evening Standard (EA/2006/0006, 19 February 2007).

Some record-keeping arguments may be chilling effect arguments made in a slightly different way: that disclosure would result in less detailed advice, which would inevitably result in less detailed records. These may carry some weight.

Collective responsibility

If the information reveals the views of an individual Minister on an issue of Government policy, arguments about maintaining collective responsibility are likely to carry significant weight.

Collective responsibility is the long-standing convention that all Ministers are bound by Cabinet decisions and carry joint responsibility for all Government policy and debates. It is a central feature of our constitutional system of government. Ministers may express their own views freely and frankly in Cabinet, committees and in private, but once a decision is made, Ministers are all bound to uphold and promote that agreed position to Parliament and the public. This principle is set out at paragraph 2.1 of the Ministerial Code (August 2019):

The principle of collective responsibility, save where it is explicitly set aside, requires that ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed in Cabinet and ministerial committees, including in correspondence, should be maintained.

The convention of collective responsibility incorporates elements of safe space and chilling effect. There is also an additional unique element that carries weight. Ministers need to present a united front in defending and promoting agreed positions. If disclosure undermined this united front by revealing details of diverging views, this would undermine ongoing

Government unity and effectiveness.

Note that the Ministerial Code for the Welsh Government states that the Welsh Cabinet operates on the basis of collective responsibility. The Ministerial Code for the Northern Ireland Executive does not refer to a convention of collective responsibility.

Collective responsibility arguments carry significant weight in the public interest test because of the fundamental importance of the general constitutional principle.

This weight may be reduced to some extent if:

• the individuals concerned are no longer politically active;
• published memoirs or other public statements have already undermined confidentiality on the particular issue in question; or
• there has been a significant passage of time.

This does not mean the publication of memoirs always undermines the confidentiality of the full official record. It depends on the circumstances of each individual case.

Whether or not the issue is still live does not reduce the public interest in maintaining collective responsibility. The need to defend an agreed position continues to be relevant after a decision has been taken, because of the constitutional importance of maintaining the general principle of collective responsibility for the sake of government unity.

Identification of officials

Some arguments may relate to the protection of civil servants, or public authority employees or officials. These must focus on the harm this would cause to internal deliberation and decision-making processes.

For example, if it would:

• affect their perceived neutrality and undermine their future working relationships;
• contribute to a chilling effect;
• weaken the accountability of politicians and more senior officials.

However, these arguments do not generally carry much weight, as officials should not be easily deterred from doing their job.

The personal effect on the individual concerned is not relevant to this exception. Arguments that the disclosure is unfair to an individual can be made under the personal data exception in regulation 13.

Legal advice

Internal communications may include legal advice from your in-house lawyers, which attracts legal professional privilege. Public interest arguments under the internal communications exception must focus on harm to the quality of internal deliberation and decision-making processes. Broader arguments about the principle of legal professional privilege and its fundamental importance to the legal system do not carry any inherent weight under this exception. The course of justice exception in regulation 12(5)(b) is likely to be more appropriate for legal advice, and you should consider this exception instead.

If you do use the exception for internal communications, there will be some public interest in preserving a safe space to seek and consider legal advice without external interference. This is only likely to carry weight while the issue is still live.

Chilling effect arguments may also carry some weight. It may be important to maintain the confidentiality of legal advice to ensure you are not discouraged from obtaining proper legal advice. There is likely to be a greater expectation that legal advice is kept confidential compared to other types of advice or discussions. The resulting chilling effect may therefore be more pronounced. Lawyers are subject to professional regulation and should be expected to continue giving full and proper advice. The quality of internal discussions may deteriorate if you were deterred from even seeking the advice, for fear it would later be disclosed.

Commercial interests

There is a public interest in protecting effective commercial discussions and decisions within a public authority. Arguments about the impact of disclosure on commercial interests are not relevant to this exception unless they are linked to an effect on internal deliberation and decision-making processes.

You should consider making arguments that internal information should remain confidential for purely commercial or economic reasons under the commercial confidentiality exception in regulation 12(5)(e).

Public interest in disclosure

There will always be some public interest in disclosure, to promote:

• the transparency and accountability of public authorities;
• greater public awareness and understanding of environmental matters;
• the free exchange of views; and
• more effective public participation in environmental decision-making.

The weight of this interest will vary. It depends on the profile and importance of the issue, and the extent to which the content of the information will inform public debate. Even if the information does not add to public understanding, disclosing the full picture always carries weight as it removes any suspicion of ‘spin’.

There may be other factors in favour of disclosure, depending on the circumstances of the case. These could include:

• transparency about the influence of lobbyists;
• accountability for spending public money;
• the number of people affected by a proposal;
• any reasonable suspicion of wrongdoing; or
• any potential conflict of interest.

There may also be an argument that disclosure would encourage better advice and more robust, well considered decision-making in future.