The Government are reported to be seeking to appeal against the recent decision by the Information Rights Tribunal (Cabinet Office v IC, EA/2011/0263) ordering the disclosure of information relating to the controversial takeover of Rowntree Mackintosh by Nestle in 1988. At the time of the request the disputed information was at least 22 years old
The decision to appeal is illogical given the Government’s decision to proceed with reducing the “30 year rule” to 20 years. The decision to move to a 20 year rule was taken by the previous Labour Government, following a review by Paul Dacre. The Coalition Government confirmed it would go ahead with the policy on 7 January 2011.
Lord McNally recently announced that the Government intended to start implementing the change in 2013, with two years’ worth of records being transferred to the National Archives every year until the transition is complete in 2023. He also confirmed there would be a corresponding reduction in the maximum lifespan of a number of FOI exemptions including section 35. He said:
The change to a “20-year rule” is a key part of our Transparency Agenda and will see a wealth of historical material opened to the public much earlier than under current arrangements. The aim is to provide greater openness and accountability, strengthening democracy through more timely public scrutiny of government policy and decision-making.
Yet the Cabinet Office is now seeking to appeal a decision ordering the disclosure of information from 1988, even though the Government has accepted that 20 year old policy discussions should not be exempt.
The Cabinet Office refused to disclose five documents about the takeover under sections 35(1)(a) and (b) citing the need to protect collective responsibility. It also refused to even confirm or deny whether the takeover had been discussed by the cabinet. However, the Tribunal concluded the public interest favoured disclosure of the information:
71. We accept that government must be given a protected safe space for policy formulation and development. However in the circumstances of this case we find that there is very little evidence that merger policy or the Ministerial Code were under active policy review during the time period. In any case merger policy is very different today to that in 1988. Therefore we find the need for a safe space was diminished and accordingly the weight we should attribute to this public interest factor.
73. In contrast the public interest in transparency and openness in this case seems to us to be very weighty indeed. This is not only for the reasons given by the Commissioner and Mr Aitchison [the requester], and the likely continuing consequences for employment in the confectionary industry in York. There is also a weighty public interest in knowing that when a Minister of the Crown is charged with exercising a quasi-judicial function (as was the case with the decision which fell to Lord Young to take about the takeover of Rowntree), the quasi-judicial role of the decision maker was not compromised by improper political or other pressures.
Draw your own conclusions!