The Daily Telegraph has obtained, via a leak, the redacted parts of a Treasury document released last week to the Financial Times under the Freedom of Information Act (PDF of the report).

The redacted document appeared to show the Treasury rubbishing the idea of a flat tax system. However:

… The complete version reveals that most, but not all, of the elements which were blacked out present compelling arguments in favour of the flat tax.

Under the Freedom of Information Act, such excisions have to be approved by ministers or senior officials, so the inevitable conclusions are: first, that Treasury mandarins are privately taken by the flat tax idea; and second, the Chancellor fears that this could hand a powerful weapon to the Tories.

I’m not sure where economics editor George Trefgarne got the idea that FOIA redactions “ have to be approved by ministers or senior officials”. This is just not true. This is true only if the officials who answering the initial FOIA request relied on the provision in Section 36 of the law.

And according to the Daily Mail, that’s exactly what happened in this case:

Treasury officials insisted last night that the Government has no plans to introduce flat taxes.

They said Treasury lawyers decided to black out sections of the report to ensure that officials were not prejudiced in the provision of ‘free and frank advice’ to ministers by the prospect of ‘unchecked disclosure’.

This is spin for those who don’t know the details of the Freedom of Information Act. Of course Gordon Brown didn’t personally put the Sharpie to this document. However, if the civil servant or lawyer who did the actual redacting cited a Section 36 exemption to FOIA as the justification for doing so, a minister would have had to authorise it.

Section 36 of FOIA
exempts from disclosure anything that would “prejudice to the effective conduct of public affairs”. There are many definitions of this in the subsections of s36. But invoking any of them requires the “opinion of a qualified person”, which in Whitehall-speak (and, in this case, s36[5][a] of FOIA) means a the say-so of “any Minister of the Crown”.

The Treasury resource pack for civil servants answering FOIA requests (PDF, p 22) explains this in plain English:

Because this exemption has to be based on the “reasonable opinion” of a Minister, you must refer all cases where you propose to rely on this provision to a Minister: the decision cannot be delegated to officials. As such a judgement can be referred to the Information Commissioner the basis on which it has been made and the basis for overriding the general presumption of disclosure should be carefully documented.

According to the spokesperson quoted in the Daily Mail, the exemption cited was the one about “free and frank advice” — a s36(2)(b)(i) exemption.

It will be interesting to see which Minister of the Crown signed the required Section 36 certificate. I’ve submitted a FOIA request for it to be released, and will be doing so routinely when I see s36 exemptions mentioned in the media.

Because of the odd wording, my first instinct was that the Telegraph had got this story badly wrong, and that the analysis of potential political motivations for the redactions could therefore be filed under “baseless speculation”. Perhaps not.

Usually, FOI requests (and hence initial redactions) tend to be made by very junior officials who tend to be overcautious in releasing information. Several journalists experienced with using the Act have told me that you tend to get more, not less, information if you use the internal appeal mechanism under FOIA to have the case reviewed by more senior civil servants.

This story is part of an interesting trend. Leaks of redacted sections of documents are becoming a common feature of stories based on Freedom of Information Act requests. The Guardian was the benefiary of such a leak when it asked for Lord Birt’s report on drugs policy and the *Western Mail * recently had some inside help on a story about a scandal at the University of Wales.

Update: Lots of flat tax advocates are commenting on this, but for those interested in both economic and government transparency issues at stake, Stumbling and Mumbling is your best bet.

Update 2: The story has developed further.