After a significant period of speculation, on the 22nd May this year the UK Information Commissioner issued an Enforcement Notice ordering the release of some, but not all, of the advice given by the Attorney General, Lord Goldsmith, on the legality of military action in Iraq.
The legal advice has been a thorn in the side of the Prime Minister since the beginning of the war. Many high profile calls for the Government to release the document, and those documents issued by the Attorney General which preceded the final document, have been made. For the most part these calls have fallen on deaf ears. The coming into force of the Freedom of Information Act 2000 (the Act) provided another tool to gain access to this information.
While the Act creates a general presumption that information requested should be made available, in this case it was claimed that several statutory exemptions from release applied. These included, for example: that the information was subject to legal professional privilege, that the information related to the formulation of government policy, that it comprised Ministerial communications, that the information related to the provision of advice by the Law Officers, that the release of the information would compromise international relations and included confidential information obtained from a state other than the UK. It was also claimed that the information requested included information that had been provided in subject to an obligation of confidence.
In many instances the Commissioner upheld the Government's reliance on these exemptions and concluded that there was nothing in the substance of the relevant information that would outweigh public interest arguments in favour of maintaining the exemption. While, the Commissioner did recognise that there is a public interest in the transparency of government relations on an international level, he also considered it essential that governments should be able to exchange full and frank views in confidence.
In relation to the exemptions set out in sections 35 and 42 of the Act (which deal with Ministerial communications and the formulation of Government policy, and legal professional privilege respectively), the Commissioner was particularly keen to point out that neither provided an absolute exemption. Thus, he concluded, Parliament was of the opinion that in some cases it would be necessary even for traditionally confidential information to be released.
With respect to the material withheld under these exemptions, the Commissioner stressed that society should be able to debate and challenge decisions taken by the Government, especially decisions of such gravity. More importantly society should have access to sufficient information to ensure that the Government has acted in accordance with the rule of law. These conclusions did not, however, render full disclosure of all of the material in question necessary.
Instead the Commissioner required the legal secretariat of the Law Officers to prepare a Disclosure Statement setting out, in broad terms, the substance of all the recorded material which led to or supported the conclusions made public by the Attorney General in his Parliamentary statement on the 17th March 2003. He further ordered that the Disclosure Statement incorporate the substance of certain documents and that within 28 days the Disclosure Statement be made available to the general public.
Interestingly, the Disclosure Statement that was ordered by the Commissioner does not have an explicit statutory foundation. Section 52 of the Act, which governs Enforcement Notices, states simply that the Public Authority in question must 'take such steps as may be so specified' by the Commissioner (at section 52(1)). The Commissioner has a degree of discretion, therefore, as to the remedy which best fits the situation presented to him. Since the Commissioner felt that the information requested could not be published in whole or in a redacted format, he ordered a statement to be made.
So, is this a victory for the FOI regime? It is probably fair to conclude that none of the difficult questions that were posed before the release of the document were in fact answered by the publication of the Disclosure Statement. With regard to the legal framework of the Act itself, however, the Commissioner has been so specific in his desire not to set any precedent regarding the application of the exemptions considered in this case, that future decisions should not be affected by it. Much like the decision of the Scottish Information Commissioner to release details of mortality rates of surgeons in Scotland, this decision by the UK Commissioner is likely to be seen very much as a one off.