Public And Administrative Law Update: The Banking Inquiry And Freedom Of Information: Yet More Transparency?

The Banking Inquiry published its final report on 27 January 2016. One of its recommendations is that the freedom of information ("FOI") exemptions should be reviewed with a view to increasing public access to advice provided by civil servants and special advisors. We consider the extent to which such advice is currently accessible under FOI law.

Under the Freedom of Information Act 2014 ("FOI Act"), the current position is that, generally, such advice is exempt from release, as explained below.

The right of access under FOI

The FOI Act provides a right of access, on request, to records held by or under the control of all public bodies not specifically excluded from the remit of that Act ("FOI bodies"). However, exemptions under the Act allow or require refusal of access to records in certain circumstances, including records relating to meetings of the Government and to deliberations of FOI bodies.

Meetings of the Government

The confidentiality of discussions at meetings of the Government is enshrined in the Constitution (Article 28.4.3). The rationale is clear: Governments need to be able to deliberate on issues freely, frankly and confidentially. Dissenting views, if aired publicly, could undermine the Government's obligation to act collectively.

However, the FOI Act seeks to strike a balance between what could, and should, be protected in this regard. Access may be refused to certain records relating to meetings of the Government, and must be refused to others.

FOI bodies may refuse access to:

(a) records prepared by Government Ministers or the Attorney General for submission to and consideration by the Government;

(b) internal Government records, other than records of published Government decisions; or

(c) records containing information, including advice, for Government members, Ministers of State, the Secretary General to the Government and the Attorney General, for the sole use of Government business or meetings.

However, this discretion does not apply to factual information relating to published Government decisions, or to records relating to a decision made over 5 years ago.

Further, FOI bodies must refuse access to records containing statements or parts of statements made at Government meetings, or information that would reveal or infer the substance of those statements, where those records are not covered by (a) or (c) above, or are not records of published Government decisions.

Interestingly, by comparison, the Access to...