More confusion over flat tax FOIA request

Sunday, 21 August 2005, 13:35

Bishop Hill notes that Nicholas Macpherson, Chancellor Gordon Brown’s new Permanent Secretary at the Treasury, has written to the Daily Telegraph denying the Chancellor’s involvement in the redactions to the flat tax documents that were released in late July:

Sir — You are wrong to suggest that information released under the Freedom of Information Act by the Treasury relating to flat tax proposals was edited by the Chancellor.

The decision to excise arguments both for and against a flat tax was taken by Treasury officials on the advice of government lawyers to comply fully with the statutory obligations of the Freedom of Information Act, as laid down by Parliament.

The Chancellor had never seen any version of the released documents and no minister had any involvement in the decisions regarding their release. To suggest otherwise is completely false.

This is very interesting.

It’s true that usually, FOI redactions don’t require the input of a minister. If the redactions were justified with any of the 22 exemptions that don’t require the opinion of a minister, the Telegraph got the story wrong by assuming the Chancellor had some involvement.

As I wrote yesterday, however, if section 36 exemptions of FOIA were invoked, a Minister of the Crown would have had to offer his opinion that disclosure would be prejudicial to the effective conduct of public affairs. This would not necessarily have to be Gordon Brown, but Macpherson says “no minister” was involved.

If it’s not an s36 exemption, as Macpherson’s letter implies, it’s the Telegraph that will have egg on its face for jumping to conclusions about political motivations for the redactions.

Something here doesn’t add up. Either something has been misreported or some crucial detail is missing.

Another FOI request should clear this all up. Tomorrow morning, a Treasury civil servant’s inbox will contain an FOI request from me asking for the letter sent to the original requestor of the flat tax documents indicating the justifications for the redactions. I have asked that if that letter invokes s36, they should also supply a copy of the document showing which Minister of the Crown gave his opinion that disclosure would be prejudicial to the effective conduct of public affairs.

Entry Filed under: Freedom of Information,UK

3 Comments Add some more of your own

1. Watching Them, Watching us | 21 August 2005 at 1616

Perhaps Lord Falconer’s Department for Constitutional Affairs provided the Ministerial rubberstamp, since they run a “clearing house” for any FOIA requests which might trouble senior officials or ministers.

Perhaps the Treasury will try to claim that any such letter authorising the s36 redaction is itself “legal advice” or “advice about policy”, or a “communication between Ministers” and is therefore subject to a Section 35 exemption:

Section 35: Formulation Of Government Policy
http://www.dca.gov.uk/foi/guidance/exsumm/sec35.htm
2. Bishop Hill | 21 August 2005 at 1933

WTWU:

But MacPherson’s letter says “No minister” was involved, not “No Treasury minister”.

Martin:
Is the unexcised text available anywhere? I’m interested to know exactly what was removed.
3. Watching Them, Watching Us | 21 August 2005 at 2230

“But MacPherson’s letter says “No minister” was involved, not “No Treasury minister”.

There is probably some convention that senior civil servants do not comment in public on, or even acknowledge the existance of, other Departments, apart from their own.

If it does turn out that there was no Minsterial “opinion” authorising the redactions, then who will be going to jail as a result of breaking the Freedom of Information Act ? Nobody.

The Information Commissioner does not have the power to prosecute anybody over this sort of incident, which can easily be brushed off as a mistake, if necessary.

The most that he can rule on, would be to force the Treasury to disclose the full document, which appears to have already been leaked. Even then he is unable to make such a ruling, or to have it enforced by a court, until after an internal Treasury review of the decision is called for by the original FOIA requestor, a process which could easily take another 3 months.

The majority of my FOIA requests have been delayed , and even appeals to the Information Commissioner also seem to be subject to long delays as well.

There simply is no “culture of open Government” as a result of the Freedom of Information Act, certainly not so far as the Home Office and the Treasury are concerned.

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