Significant victory in quest for transparency in public affairs

Published on Saturday 27 January 2007 00:38

IN THE past week, we have been given important judicial guidance on the extent to which officials' advice to ministers can be made public under freedom of information (FoI) laws.

In one of its first decisions in the FoI field, the Court of Session rejected attempts by the Scottish Executive to withhold from the public arena advice given by civil servants to ministers. In doing so, it has curtailed the "private space" in which the Executive claimed ministers and advisers were entitled to operate without external scrutiny. The ruling has important implications for ministers and for all public authorities subject to the Freedom of Information Act 2002.

The appeal - one of two decided in his favour on the same day - concerned a decision by Kevin Dunion, the Scottish Information Commissioner, that the Executive should release certain documents, including advice given by civil servants to ministers, about delays in bringing into force parts of the Law Reform (Miscellaneous Provisions) Act 1990, allowing non-lawyers (such as accountants and patent attorneys) to apply for the right to represent clients in court in certain cases. The applicant's request hints at a suspicion on his part that the delays were intended to protect the interests of the legal profession.

Among other things, he asked for information about the source of a suggestion that the new provisions would place a burden on the courts.

Specifically, the Executive argued it could refuse to release all documents in a "class" or group of documents covered by the applicant's request if disclosure of the class as a whole could inhibit substantially the free and frank provision of advice and exchange of views between civil servants and ministers, or could prejudice substantially the effective conduct of public affairs. It was said to be necessary that "ministers (or other public persons) and their advisers should have a measure of 'private space'; otherwise there were risks disclosure would be made before views had properly matured and that the public record would be incomplete due to an increased tendency not to record advice given".

The commissioner's view was that the exemptions relied on by the Executive could apply only a document-by-document basis and where the content of individual documents was such that disclosure could lead to prejudice to the giving of advice or conduct of public affairs.

• Christine O'Neill, a partner in Brodies' public law litigation unit, leads a team advising the Information Commissioner.