Office of Government Commerce v Information Commissioner [2007] UKIT EA_2006

Information Tribunal Appeal Numbers:

EA/2006/0068 and 0080

Freedom of Information Act 2000 (FOIA)

Heard at Procession House, London Decision Promulgated

On 12, 13, 14 and 16 March 2007 02 May 2007

BEFORE

INFORMATION TRIBUNAL CHAIRMAN

John Angel

And

LAY MEMBERS

David Wilkinson and Peter Dixon

Between

OFFICE OF GOVERNMENT COMMERCE
Appellant

And

INFORMATION COMMISSIONER
Respondent

Representation:

For the Appellant: Mr Robin Tam QC

For the Respondent: Mr Timothy Pitt-Payne

Decision
The Tribunal upholds the decision notices dated 31^st July 2006 and 5^thOctober 2006, except that we find that section 33 as well as section 35
FOIA is engaged, and dismisses the appeals.

Reasons for Decision

The requests for information

1. On 3^rd January 2005 Mr Mark Dziecielewiski (Mr D) requested the
following information from the Office of Government Commerce (OGC)
(Request 1):

“Please provide me with the two pre-Stage Zero and the actual
Stage Zero Gateway Reviews of the Identity Cards Programme
project being run by the Home Office.”

2. On 1^st February 2005 the OGC sent a letter to Mr D advising him that
the information requested was subject to two qualified exemptions
under section 33 (examination functions) and section 35 (formulation of
government policy) of FOIA and that they would need time to consider
the balance of the public interest. On 22^nd February the OGC informed
Mr D that they would be refusing part of Request 1 because the public
interest in maintaining the exemptions outweighed the public interest in
disclosure (Refusal Notice 1). The background information contained in
both Gateway Reviews (GRs) was disclosed. Following an internal
review of the decision Refusal Notice 1 was upheld by letter dated 24^thMarch 2005 to Mr D from Peter Fanning, the Deputy Chief Executive of
the OGC.

3. On 25^th February 2005 Mr Mark Oaten MP (Mr Oaten) requested by
way of Parliamentary Question (PQ) (Request 2):

“To ask the Chancellor of the Exchequer what traffic light status
was awarded to the identity cards scheme by the Office of
Government Commerce at the Gateway Review 1 Stage.”

4. Mr Boateng, the Chief Secretary to the Treasury, by way of Commons
Written Answers, informed Mr Oaten that “The ID Cards programme
has not yet undergone a Gate 1 Review. It has, however, undergone
two OGC Gate 0 Reviews, in June 2003 and January 2004

respectively.” He then went onto say that the information was exempt
under FOIA and that “the public interest in disclosure of such
information is outweighed by the public interest in non-disclosure”
(Refusal Notice 2). Following an internal review of the decision John
Healey MP, on behalf of HM Treasury, wrote to Mr Oaten on 22^nd June

2005 upholding Refusal Notice 2.

The complaint to the Information Commissioner

5. Both requesters complained to the Information Commissioner (the
Commissioner). On 31^st July 2006 the Commissioner issued a decision
notice reference number FS50070196 addressed to the OGC and Mr D
(Decision Notice 1) upholding the complaint of Mr D. On 5^th October

2006 the Commissioner issued a decision notice reference number
FS50132936 addressed to the OGC and Mr Oaten (Decision Notice 2)
upholding the complaint of Mr Oaten on similar grounds to Decision
Notice 1. In the Decision Notices the Commissioner found that only
section 35 FOIA was engaged and that the public interest in
maintaining the exemption did not outweigh the public interest in
disclosure.

The appeal to the Tribunal

6. The OGC appealed against Decision Notice 1 and Decision Notice 2
(the Decision Notices). Request 1 and Request 2 (the Requests) are
based on the same Gateway Reviews (the Gate Zero Reviews). The
Decision Notices are similar and the notices of appeal cover the same
grounds. Therefore the Tribunal ordered the consolidation of the
appeals with the approval of the parties.

7. Both Mr D and Mr Oaten were invited to apply to be joined as parties
but declined to do so, hence neither is a party to this consolidated
appeal.

8. The information that is the subject of the Requests (the disputed
information) has been disclosed to the Tribunal in confidence in order
for the Tribunal to be able to consider all the evidence in the case. As a
result part of the hearing was held in closed session .

Background to Gateway Reviews

9. In 1998, against a background where many large, complex, novel and
often IT-enabled civil programmes and projects had missed their
delivery dates, run over budget or failed to fulfil requirements, the
Government asked Sir Peter Gershon (Sir Peter) to review civil
procurement in civil government. The Review of Civil Procurement in
Central Government, April 1999 (the Gershon Report) recommended
that a common strategic framework should be established within which
all central government departments would conduct their procurement
activities.

10. The Government accepted the recommendations of the Gershon
Report and in 2000 the OGC was set up with Sir Peter as its first Chief
Executive. The OGC introduced a number of initiatives to promote
best value for money in government procurement, the central of which
was the Gateway process, through which programmes and projects are
examined at critical stages in their life cycle to provide assurance that
they can progress successfully to the next stage.

11. As Sir Peter explained in his written evidence to the Tribunal, the
Gateway process is now mandatory across Central Civil Government
departments and Executive Agencies and that others such as the
Ministry of Defence, the NHS and local government have adopted the
process on a voluntary basis. The process is set out in detail in the
OGC Gateway Process Review Pack.

12. A Gateway Review (GR) is a review of a delivery programme or
procurement project carried out at a key decision point by a team of
experienced people who are independent of the team running the
project. Each programme or project has a Senior Responsible Officer
(SRO), a senior individual in the department concerned who takes on
personal responsibility for its success. SROs use Risk Potential
Assessments to determine the level of risk associated with a
programme or project and this helps determine the composition of the
GR team and the extent of its independence from the department.

13. GR’s are conducted on a confidential basis for the SRO. Typically (and
this was the case in the Gate Zero Reviews that are the subject of this
appeal) the review teams are made up of three people (the Reviewers)
who take four days to conduct the on-site review. Reviewers are
mainly senior civil servants or outside consultants with extensive
experience of the area under review. The members of the review team
conduct their interviews on a confidential basis with interviewees (the
Interviewees) and present their findings in a non-attributable manner in
the report to the SRO. The review team has access to all the
stakeholders in a project and, for high risk projects, Ministers and
Permanent Secretaries are usually interviewed. At the end of each day,
the review team provides a progress report to the SRO and, before
they leave the site on the final day, the team presents him/her with a
draft report. The SRO has the opportunity to correct factual errors but
the substance of the report, its recommendations and their RAG status
(see paragraph 17 below) are not open to negotiation. In brief, the
philosophy of the Gateway process is that an independent review team
should come in, conduct a quick peer review, and leave behind a short,
clear and sometimes blunt report that is easily digested by the SRO
who can put it to immediate use in pursuit of the success of the project
or programme.

14. The number and nature of GR’s has evolved since 2000. There are
now five numbered Gates during the life cycle of a project which, for

this purpose, is defined as a piece of work designed to achieve
specified outputs within a specified period of time and within planned
cost, quality and resource constraints. Three of the reviews are
conducted before the award of the contract, one examines the
implementation of the service and one confirms the operational
benefits.

15. A major upgrade of the process resulted in the introduction in January
2004 of Gate Zero Reviews, although there is evidence that they had
started to be used earlier than this date but the process was not
formalised until later. Gate Zero Reviews, two of which are the subject
of this appeal, are undertaken only for programmes. A programme is
defined in the Cabinet Office’s Review of Major Government IT
Projects as a portfolio of projects that aim to achieve a strategic goal of
the lead government department, and that is planned and managed in
a coordinated way. Gate Zero Reviews may be repeated through a
programme’s life and such reviews might typically be undertaken
during the phase when the programme is being defined, when the
programme is being implemented and when the programme has been
completed.

16. Some programmes are more important than others. Some are deemed
“mission-critical”, such as the Identity Cards programme that is the
subject of these two appeals, because they are essential to the
successful delivery of a legislative requirement, a key departmental
target, or a major policy initiative announced or owned by the Prime
Minister or a Cabinet Minister. Also additionally “mission-critical” is
used to define programmes or projects whose failure would have
catastrophic implications for a delivery of a key public service or
national security.

17. A “key” programme is a mission-critical programme that the Prime
Minister’s Office regards as having the greatest reputational risk or
operational impact on government as a whole. The Chief Executive of

the OGC is required to give the Prime Minister regular reports on the
status of these programmes. As at December 2006 there were 15 such
key programmes, one of which was the Identity Cards programme.

18. About June 2002, the R(ed) A(mber) G(reen) status (RAG Status) was
introduced to prioritise review recommendations. Red means that
immediate action must be taken. Amber means that action must be
taken before the next review. Green means that the recommendation
is considered beneficial to the project but not essential for its success.
The overall RAG status of a review is derived from the RAG status
given to the individual recommendations: one or more reds produces
an overall RAG status of red; no reds but one or more ambers
produces an overall RAG status of amber; and no reds or ambers
produces an overall RAG status of green.

19. Since April 2003, a project or programme given an overall red RAG
status in consecutive reviews triggers what is known as a “double red”
Gateway procedure. The Chief Executive of the OGC sends a letter to
the Permanent Secretary of the Department concerned, with a copy
(since June 2005) to the National Audit Office (NAO). Since February
2006 the NAO has passed on information about “double reds” to the
Chairman of the Public Accounts Committee (PAC).

20. The Tribunal was provided with evidence that GR’s, of which there
have been several thousand conducted since the process was
introduced, have succeeded in improving the extent to which
government projects are delivered on time, to quality and to budget.
This has produced substantial benefits: it is claimed that GR’s saved
the Exchequer some £1.5 billion between 2003 and 2005.

21. In addition to GR’s, internal reviews that mirror the Gateway process
are undertaken by departments and their agencies. We were shown a
funnel and pipe shaped diagram of these in relation to a particular
department and how they relate the various OGC review gates. The

internal reviews are carried out without external help in contrast to
GR’s where Reviewers come from outside the department. We were
informed in evidence that the Interviewees are often more candid, open
and critical than they are during GRs.

Opportunities for public scrutiny

22. There are several ways to scrutinise procurement projects and
programmes publicly. The NAO, headed by the Comptroller and
Auditor General (C&AG), is totally independent of Government and
scrutinises public spending on behalf of Parliament. It audits the
accounts of all central government departments and agencies, as well
as a wide range of other public bodies, and reports to Parliament on
the economy, efficiency and effectiveness with which they have used
public money. On the basis of reports by the C&AG, the PAC (whose
main function under the National Audit Act 1983 is to examine whether
the sums of money agreed by Parliament for public spending are
properly spent) subjects departments to rigorous and public scrutiny.

23. In addition to the PAC with its government-wide remit on public
spending, each government department is also subject to scrutiny by a
Parliamentary Departmental Select Committee whose role is to
examine 'the expenditure, administration and policy' of the relevant
department and its 'associated public bodies'. Committees determine
their own subjects for inquiry, gather written and oral evidence and
make reports to the House of Commons to which the Government
replies. In the course of this hearing, the Tribunal was referred to the
inquiry conducted by the Select Committee on Work and Pensions that
reported in 2004 on Management of Information Technology Projects:
Making IT Deliver for DWP Customers. It considered, amongst other
things, the arguments for and against publishing GR’s.

24. GR’s are conducted ‘live’ and make recommendations while the
programmes/ projects are still going forward. In contrast the NAO, the

PAC and other Parliamentary Select Committees conduct historical
audits and reviews whose recommendations are generally based on
lessons learnt usually after the programme/project has been launched
and often after it has been completed. In particular the NAO conducts
retrospective audits that are looking at value for money rather than
actually seeking to contribute to the successful delivery of the
programme/project. Whereas NAO audits and PAC and Select
Committee reports and proceedings are public and undertaken on a
retrospective basis, GR’s have remained private, are current reviews
and look forward.

25. In evidence we were informed that GR’s had been taken into account
by the NAO, the PAC and Select Committees, but without disclosing
the contents of the reviews. However the 27^th PAC Report 2004-05
published on 6^th April 2005 concluded that:

“this Committee believes that, to further enhance external
scrutiny, there is a strong case for the publication of Gateway
review reports, particularly given the repeated failures of public
sector IT-enabled projects and programmes in recent years.”
Also the Work and Pensions Select Committee in its 3^rd Report of the
2003-04 Session published in July 2004 recommended that;

“the Government should publish GR’s with appropriate
safeguards or failing that to set out how Parliament otherwise
can be provided with the level of information it needs in order to
scrutinize adequately questions of value for money from major
IT contracts.”

26. The Government response to the PAC in the form of the Treasury
minutes of the 19^th and 27^th PAC reports presented to Parliament in
November 2005 also record that despite the conclusions reached in the
previous paragraph that:

“The OGC does not agree with routine publication of Gateway
reports. However, it does not operate a “blanket” exemption for
Gateway information. Under the Freedom of Information Act

2000 each request for information is considered on a case-by-
case basis and the public interest is carefully considered in each
case. Where information is disclosed simultaneous publication
on the OGC website is also considered.”

27. In its Response to the Work and Pensions Select Committee,
published in October 2004, the Government said:

“The Government recognises the concerns of the Committee
with respect to the information provided to Parliament on IT
projects and IT contracts. It takes seriously the need to consider
requirements under the Freedom of Information Act 2000 (FOI)
and Parliament's need for sufficient information to perform
effective scrutiny. Equally, however, the Department and the
OGC have been frank about their concerns around the provision
of commercial information and the publication of OGC Gateway
Reviews. There are legitimate concerns around the need to
protect Government departments' onward programme of
competitive supply, and to protect the inherent value of the
openness and candour of the OGC Gateway Review process
currently afforded by confidentiality.”

The evidence presented to the Tribunal was that no GR had been

disclosed under FOIA.

Witnesses before the Tribunal

28. Mr Tam on behalf of the OGC called 7 witnesses. Sir Peter Gershon
who was the first Chief Executive of the OGC. He was the instigator of
the introduction of the Gateway Review process by Central
Government. Keith Boxall, the Head of Standards and Practice at the
Identity Passport Service, who has had experience of implementing
projects both before and after the introduction of the Gateway Review
Process. Derek James Baker, Director of Managed Services
Operations at the Better Projects Directorate of the OGC, who was
formerly Gateway Project Director responsible for developing and

rolling out the Gateway programme across Central Civil Government,
developing and maintaining the design of the Gateway process and
communicating the benefits of that process throughout Central Civil
Government. Andrew Edwards a retired civil servant with more than 31
years experience, mostly at the Treasury. Since his retirement he has
provided consultancy services to Government Departments and has
led many GR’s. Bernard Herdan, the Executive Director for Service
Planning and Delivery at the Identity and Passport Service (IPS), who
is responsible for all IPS operational delivery and for planning future
evolution of services and capabilities. Anthony Melville Deputy Chief
Constable of Devon & Cornwall Constabulary and finally Stephen
Harrison Acting Executive Director, Strategy at the IPS.

29. These witnesses provided extensive evidence about the introduction
and operation of the Gateway Review Process from the perspective of
policy makers and project and programme initiators, managers, SROs,
Reviewers and Interviewees both in relation to central government
departments and other authorities who use the GR process on a
voluntary basis. Their evidence forms the basis of the sections of this
decision under the headings the ‘Background to Gateway Reviews’ and
the ‘Public Interest Test: Factors in favour of maintaining the
exemption’. In a nutshell this evidence describes the GR process and
how it works and their view of the future should GR’s be disclosed
under FOIA. In relation to the latter we would summarise their evidence
as overwhelmingly of the view that notwithstanding the risk that GR’s
might be disclosed, they all considered that even the remotest
possibility of disclosure would undermine the whole system which, it is
claimed, has resulted in major benefits for government projects
including substantial savings.

30. Mr Pitt-Payne on behalf of the Commissioner did not call any witnesses
which we find surprising as it would have been helpful to have had a
different perspective on the GR process. We have glimpses of this
perspective from Mr D’s email correspondence exhibited to the

Tribunal and in reports of other bodies such as the PAC and the Select
Committee on Works and Pensions.

FOI training

31. We were informed in evidence by several of the witnesses that they
had undertaken general FOI training. There had also been some
briefing on FOI during training for the GR process. The witnesses
seemed to believe that there was little risk of GR’s being disclosed
under FOIA or other means, which appears to have come from the
briefings. Only in cross examination did some of the witnesses
recognise that there could be no guarantee of non-disclosure. Mr
Herdan said “OGC practice was that this information would not be
disclosed and that people could talk without fear and that it would be
non-attributable to them, but we were not able to say that there was a
100 percent guarantee that this information would never get into the
public domain.”

32. There was no evidence that the OCG had reviewed its training or
briefing in relation to FOIA following the Commissioner’s findings in the
Decision Notices.

Background to the ID card scheme

33. This is set out in detail in the Tribunal’s decision in Department of
Works & Pensions v The Information Commissioner’s (DWP case) at
paragraphs 34 to 53. Briefly the Government completed its consultation
exercise in relation to ID cards in January 2003 and announced its
decision to introduce a scheme in November 2003 after the first Gate
Zero Review in this case. A Bill was presented to Parliament in October
2004 after the second Gate Zero Review. At the time of the Requests
the Bill was being debated in Parliament.

34. In evidence Mr Harrison confirmed that the Bill would not have been
published without the benefit of the two Gate Zero Reviews. He also
commented on why the GR process was used at such an early stage in
the programme: “We were in the odd position where we could not set
up a programme team because Government had not decided to have
ID cards, so we eventually got there I think slightly subverting the
gateway zero process, but it was the only process that was there at the
time and that importantly other Government departments, particularly
Number 10 and the Treasury would sign up to something that was an
adequate assessment of the issues before they would agree to the
policy.” Mr Harrison added “It was made very clear to us from Number
10 in particular that they wanted a Gateway process.”

The Questions for the Tribunal

35. In this case the Tribunal needs to address the following questions:

a. Whether the exemption at section 33 of FOIA was engaged in
respect of the requested information, i.e. whether the "prejudice"
test was satisfied;

b. If the section 33 exemption was engaged, whether the public
interest in maintaining that exemption outweighed the public
interest in disclosure;

c. Whether the exemption at section 35 of FOIA was engaged in
respect of the requested information;

d. If the section 35 exemption was engaged, whether the public
interest in maintaining the section 35 exemption outweighed the
public interest in disclosure.

The Tribunal’s powers

36. These have been set up out clearly in other decisions of the Tribunal,
for example the DWP case. The Tribunal’s general powers in relation
to appeals are set out in section 58 of the Act. They are in wide terms.
Section 58 provides as follows.

(1) If on an appeal under section 57 the Tribunal considers-

(a) that the notice against which the appeal is brought is not
in accordance with the law, or

(b) to the extent that the notice involved an exercise of
discretion by the Commissioner, that he ought to have
exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other
notice as could have been served by the Commissioner; and in
any other case the Tribunal shall dismiss the appeal.

(2) On such an appeal, the Tribunal may review any finding of
fact on which the notice in question was based.

The question whether the exemptions in sections 33 and 35 apply is a
question of law or alternatively of mixed fact and law. The Tribunal
may consider the merits of the Commissioner’s decision as to whether
the exemption applies, and may substitute its own view if it considers
that the Commissioner’s decision was erroneous. The Tribunal is not
required to adopt the more limited approach that would be followed by
the Administrative Court in carrying out a judicial review of a decision
by a public authority.

The examination exemption

37. The Commissioner found that section 33 was not engaged in this case.
Mr Tam challenges this finding.

38. Under section 33(1) of FOIA “any public authority which has functions
in relation to – (b) the examination of the economy, efficiency and

effectiveness with which other public authorities use their resources in
discharging their functions” is caught by this exemption provided that:
“(2) Information held by a public authority to which this section
applies is exempt information if its disclosure would, or would be
likely to, prejudice the exercise of any of the authority’s functions
in relation to any of the matters referred to in subsection (1).”

39. This is a qualified exemption which is subject to two tests. Firstly the
“prejudice” test set out in section 33(2) above and provided that is met
then the public interest test has to be considered under section 2(2)(b),
namely that “in all the circumstances of the case, the public interest in
maintaining the exemption outweighs the public interest in disclosing
the information.”

40. The Tribunal has considered the meaning and application of the
prejudice test, which is common to a number of qualified exemptions
under FOIA, in several decisions e.g. Hogan and Oxford City Council v
Information Commissioner and John Connor Press Associates Limited
v Information Commissioner. These cases have found the term “would
prejudice” means that it is “more probable than not” that there is
prejudice to the specified interest set out in the exemption. The other
part of the prejudice test, “would be likely to”, has been found by the
Tribunal to mean something less than more probable than not but
where “there is a real and significant risk of prejudice.” (Hogan at
paragraph 35). This finding has drawn support from the decision in R
(on the application of Lord) v Secretary of State for the Home Office
[2003] EWHC 2073 (Admin).

41. In other words the Tribunal has found that the occurrence of the
prejudice to the specified interest in the exemption has to be more
probable than not or that there is a real and significant risk of prejudice,
even if it cannot be said that the occurrence of prejudice is more
probable than not. The probability of prejudice expressed by these two
limbs of the test are not too far apart.

42. Mr Tam, although accepting the definition of the first limb of the test,
challenges the definition of the second limb. He argues that in the Lord
case the court was concerned with section 29(1) of the Data Protection
Act 1998 (DPA) which provides, relevantly:-
"Personal data processed for any of the following
purposes:-
(a) the prevention or detection of crime,
(b) the apprehension or prosecution of offenders, or
... are exempt from ... [the subject access provisions] in
any case to the extent to which the application of those
provisions in the data would be likely to prejudice any of
the matters mentioned in this subsection" (emphasis
added).

43. He continues, Munby J held that 'likely' in section 29(1) connotes a
degree of probability where there is a very significant and weighty
chance of prejudice to the identified public interests. The degree of risk
must be such that there 'may very well' be prejudice to those interests,
even if the risk falls short of being more probable than not" (judgment
paragraph 100, emphasis added by Mr Tam).

44. Mr Tam then argues that Munby J’s conclusion in that case provides no
assistance to the Tribunal in this case, and presumably that the
Tribunal’s previous findings on this point have been wrong, for the
following reasons:

a. Munby J was considering an exemption in a different statutory
scheme. The exemption, if applicable, would have the effect of
preventing subject access to the data requested. It was
therefore an absolute rather than a qualified exemption. This
was, and was treated by the judge, as a reason to construe its
requirements strictly. See in particular paragraph 99 of the
judgment, where Munby J said:-
"... I cannot accept that the important rights intended to
be conferred by section 7 are intended to be set at
nought by something which measures up only to the
minimal requirement of being real, tangible or identifiable

rather than merely fanciful. Something much more
significant and weighty than that is required ..."

b. Equally, the construction adopted by the judge was influenced
by the need to construe the DPA in the light of the
requirements of Council Directive 95/46/EC of 24 October
1995 (see judgment paragraph 83). At paragraph 99, the judge
observed that the Directive permitted:-
"... restrictions on the data subject's right of access to
information about himself only (to quote the language of
recital (43)) 'in so far as they are necessary to safeguard'
or (to quote the language of Article 13(1)) 'constitute a
necessary measure to safeguard' the prevention and
detection of crime (emphasis added). The test of
necessity is a strict one."

45. Mr Tam concludes that by contrast, FOIA stands alone and is not to be
interpreted by reference to any Directive or other instrument, still less
by reference to one that requires a test of "necessity" to be satisfied
before rights of access to information may be denied. Consequently,
Munby J's judgment was not a sound basis for the adoption of a "very
significant and weighty chance of prejudice" test in relation to FOIA, or
indeed for any test higher than "not insignificant", "real, as opposed to
fanciful", "not insubstantial" or "not minimal".

46. Mr Tam then refers us to a number of other authorities, namely - Three
Rivers District Council v Governor and Company of the Bank of
England (No 4) [2002] EWCA Civ 1182, [2003] 1 WLR 210 at 221H,
para 22. See also In re H (Minors) (Sexual Abuse: Standard of Proof)
[1996] AC 563 at 568 - which he says support his contention that the
phrase “would be likely to” means that

a. The chance or likelihood of prejudice resulting must be more than

insignificant or fanciful; and

b. The prejudice anticipated must be more than trivial or frivolous,
for the qualified exemption to be made out, but that no further or
higher hurdles should be imposed.

47. In other words Mr Tam is asking us to find that the gap between the
two limbs of the prejudice test is wide and that this means there is a
lower threshold than required under Hogan and John Connor Press to
engage the exemption.

48. We have considered these arguments and are not prepared to change
our finding in the previous decisions of the meaning of the prejudice
test for the following reasons:

a. The words in section 33(2) FOIA are closer to the words in the

DPA interpreted in Lord than the words of the statutes being
interpreted in other authorities cited by Mr Tam;

b. In terms of the statutory context the DPA and FOIA are closely
connected, despite the fact the former implements a European
Directive and FOIA does not. There are links between the
statutes and at various points in the DPA they are now referred
to collectively as "the Information Acts" and to some extent
these two pieces of legislation form a common scheme for
dealing with rights of access to information, both personal
information and other information, with common enforcement
mechanisms both via the Commissioner and via this Tribunal;

c. The Lord and the FOI cases are dealing with limitations on rights
of access to information; in Lord with the subject access rights
under section 7 DPA and in FOI cases with the general right of
access to information under section 1 FOIA. Mr Tam says that in
section 29 DPA, there is no public interest balance to be struck.
Therefore if section 29 is engaged, the subject access right is
lost, and that is an end of the matter. In the present context,
even if a qualified exemption that is prejudice based is engaged,
there is still the public interest test to go through. However, if a
qualified exemption is engaged under FOIA, then what this
means is that the important general right of access under
section 1 is potentially lost. It is potentially at risk. The right of
access to information held by a public authority is now under
scrutiny and is subject to a public interest test after having gone
through the gateway of the prejudice test. It is not simply a right

that is enjoyed without qualification. So although if a prejudice
exemption is engaged it does not take the right away, it does
have significance in relation to the right. It means that the right
is potentially at risk, depending on where the public interest
balance lies in the circumstances of the individual case.
Therefore although this position is not on all fours with the Lord
case, there are important similarities with Lord which although
not binding on us are of assistance as to what a phrase like
"would be likely to prejudice" means.
d In Lord, the expression "would be likely to prejudice" stands
alone. In the present case, the phrase is "would or would be
likely to prejudice". There is no disagreement that "would
prejudice" indicates prejudice being more probable than not. If
this phrase had been coupled with an alternative possibility
whereby any non-fanciful, non-remote prospect of prejudice
could engage the exemption, then the language that we would
have expected Parliament to have used in FOIA is, as Mr Pitt-
Payne submits, "would or might" rather than "would or would be
likely to prejudice".

Engagement of section 33

49. The implications of our above finding is that the OGC has a more
difficult task in complying with the prejudice test as the threshold is
higher than Mr Tam has been contending. The Commissioner found in
the Decision Notices that this higher threshold had not been met and
therefore the section 33 exemption was not engaged and there was no
need, therefore, to move to applying the public interest test.

50. This Tribunal has the power to review the OGC’s application of the
prejudice test, despite our finding that the Commissioner applied the
right legal test (see DWP at paragraph 16). We have decided to
exercise this power and find that the OGC was correct to find that the
exemption was engaged.

51. The public interest test requires the public authority to stand back and
abnegate its own interests except and insofar as those interests are
properly viewed as part of the public interest when applying the test
(See DWP paragraph 24). The prejudice test, however, does not
require such a balancing act. It requires the public authority to
determine reasonably and objectively whether disclosure would, or
would be likely to, prejudice the exercise of, in this case, the OGC’s GR
functions.

52. The OGC has provided considerable evidence in this case from
witnesses appearing before the Tribunal and in statements attached to
Refusal Notice 1 that the Public Authority considers that the GR
process would be harmed by public disclosure. We find that the OGC
was reasonable in concluding there would be a weighty chance of
harm, because the underlying way that GR’s are undertaken would
need some change to the current practice if it were to be demonstrated
under FOIA that there could be no guarantee that GR’s would be kept
from disclosure in the future. These changes would put the currently
practised GR process at some risk. We make no comment here on the
way the GR process is practised or whether it could be argued that the
way it is practised has contributed to the likely harm. It certainly does
not amount to maladministration. Therefore we find it was reasonable
for the OGC to determine that disclosure of the disputed information
would be likely to prejudice the undertaking of GR’s and therefore the
OGC’s function. However we would not go so far as to find that it would
prejudice the OGC’s functions in this respect.

The formulation of government policy exemption

53. The other exemption claimed in this case is under section 35 FOIA,

namely (1) Information held by a government department ............. is

exempt information if it relates to- (a) the formulation or development of

government policy. This is a class – based exemption which means
that there is no need to show prejudice or harm as under section 33.

54. Both the OGC and the Commissioner consider that parts of disputed
information are caught by this exemption and that the exemption is
engaged. The Tribunal has reviewed the disputed information and
agrees that the exemption is engaged, although we find, as the
Commissioner recognised in the Decision Notices, that the policy in
relation to the introduction of identity cards had been formulated and
was well under development by the time of the Requests. Most of the
information which is not caught by the exemption has already been
disclosed to the complainants.

55. Therefore we need to consider the application of the public interest
test. Both parties agree that the factors to be taken into account are
largely common to both exemptions so we consider these exemptions
together in order to determine whether the test has been applied
correctly by the Commissioner.

56. We would observe that we do not expect that section 35 would be
engaged for every request for a GR. There will be little if any policy
formulation or development in some reviews, particularly later in the
project cycle where they are above all concerned with implementation
and delivery.

Analogy to other exemptions

57. Mr Tam suggests to us that we should consider these exemptions as
analogous to three other exemptions under FOIA, namely section 42
(legal profession privilege or LPP), section 40 (personal information)
and section 41 (information provided in confidence). His reason for
seeking to create such analogies is to require us to apply, in effect, a
stricter test when considering the public interest balance.

58. In relation to the LPP exemption we have already considered such an
analogy in the DWP case and rejected it in relation to section 35. We
reject the analogy on similar grounds in this case in relation to both the
section 33 and 35 exemptions engaged in this case.

59. In relation to the other two exemptions (sections 40 and 41), which are
absolute exemptions, we again reject the analogy. If Parliament had
intended the section 33 and 35 exemptions to be absolute exemptions
than it would have provided as such. If these exemptions (sections 40
and 41) had been relevant to this case then the OGC should have
claimed these exemptions. Mr Tam cannot expect us to allow him to
introduce them in such an indirect manner. In any case both these
exemptions are not as absolute as first appears. The application of
section 40 will often require a similar balancing act to the public interest
test when the date protection principles are being considered – see the
Tribunal’s decision in House of Commons v Information Commissioner.
Section 41 will usually require the application of a public interest test as
to whether there is an actionable breach of confidence at common law
– see the Tribunal’s decision in Derry City Council v Information
Commissioner.

The public interest test

Factors in favour of maintaining the exemption

60. Mr Tam argues that there is a very strong public interest in maintaining
the exemptions otherwise the success of GRs will be fundamentally
undermined. There is a very strong public interest in the efficient and
effective running of programmes and projects particularly where large
sums of money can be saved. Mr Tam applies the same public interest
to both of the exemptions engaged in this case and does not seek to
apply separate and different factors to each exemption.

61. Mr Tam identifies two information flows within the Gateway process
which he argues have to be protected. The first one is the information

flow from Interviewees and other sources to the review team. The team
uses this information to reach its conclusions and recommendations. It
is important, he argues, to distinguish that flow from information flowing
back to the Department concerned and the SRO in the form of advice
and recommendations. The Requests touch on both flows in this case
and it is important to recognize the difference and not to confuse the
two when considering the public interest test.

62. The GR system, he argues, is based on maintaining confidentiality in
order to promote openness, honesty and the candid exchange of
information. This is a fundamental philosophy resulting in a form of
behaviour which makes the process work.

63. He identifies 14 areas of harm to GR’s from even the remotest
possibility of disclosure which is, in effect, a summary of the OGC’s
witnesses’ evidence. He contends that if one of these is triggered, even
the less substantial items, then all the other items will be triggered
because they are interrelated, and that severe harm to the GR system
will occur. He further argues that disclosure of a GR would essentially
trigger an entire package of disadvantages and adverse effects on the
whole process.

64. We set out the 14 areas briefly below, which are largely based on the
witnesses’ opinion of the future of the GR process should GR reports
become routinely disclosable soon after publication:

a. The effect on Interviewees who would become more guarded
and cautious in their communication with the review panel and
less open and candid. This would have three possible effects.
Juniors would be reluctant to criticise or be seen to be
criticising superiors or others involved in the project. Anyone
would be reluctant to be seen to be criticising the department
as a whole, the particular project or perhaps a minister's
approach to policy or decisions. Finally Ministers who are

interviewed themselves may be reluctant to say anything
critical about their own policies or decisions, for fear this would
have an impact on the way they are seen.

b. Interviewees may refuse to be interviewed at all. Currently it is
not actually a problem because of the way the process works,
but past experience is no guide to the future where you are
contemplating a wholesale change in the assumptions that are
to be made by the participants to a review.

c. Reviewers will be less willing to be involved in reviews
generally.

d. Reviewers might be less willing to become involved in reviews
from a time commitment point of view because the whole
process will lengthen due to concern that the content of the
report might be published. The availability of Reviewers for
increased periods of time would be less.

e. There will be an impact on civil servants wishing to become
SROs for fear of adverse publicity.

f. The private sector would be less willing to be involved in
reviews if they feared adverse publicity and this may have a
knock on effect on their interest in working with government.

g. Although GR’s are mandatory for central government there is
flexibility in the timing of when reviews are undertaken and
SROs would tend to delay reviews in order to maximize the
chance of getting a green light RAG status.

h. It will affect the way reports are written. They would become
more bland and anodyne if published. They would be drafted
in "finessed language" or "Civil Service speak". The reports
might omit issues of sensitivity which are then communicated
orally rather than put in the report.

i. The time and energy taken to negotiate the content of reports
in order to reduce the risk of criticism of the project or the
review team, because the department involved feels obliged to
take a public stand and defend itself against the criticism. Time
and energy might also be expanded if things go wrong and the

review team then gets criticized for not having done a thorough

job.
j. This will not only result in delays but influence the way the GR

report is communicated to SROs.
k. Some of the above effects would introduce an atmosphere of

conflict and confrontation between the two sides in the review

process.
l. It would also lead to a general loss of enthusiasm and

confidence in the process.
m. There would be resistance to recommendations. Participants

would take entrenched lines, defending themselves, rather

than embracing the recommendations. This is a natural

reaction to criticism which is said is avoided by the current

system.
n. This would particularly effect information relating to policy

options which are of a sensitive nature to government, and

also commercially sensitive information.

65. In Mr Tam’s words the Gateway process is currently protected from
these 14 areas of harm through non disclosure and provides a “huge
boulder of protection for the Gateway process” and should not be
tampered with. Put another way, what he is saying is that the effect of
all of these areas of harm is that any FOI disclosure of any GR,
regardless of the content of the review or of the timing (except perhaps
after 30 years or a considerable period of time) of the disclosure, he
says in every case, creates a very strong public interest in favour of
maintaining the relevant exemptions, because of the almost certain
adverse effect of disclosure on the GR process generally which is
regarded as having so much value to the system.

66. Mr Pitt-Payne deals with the 14 areas of harm under 7 headings. Firstly
the “frankness” of Interviewees where Mr Tam draws a contrast
between the current frankness as he sees it and the feared future lack
of frankness if there was disclosure. Mr Pitt-Payne argues that this

harm has been overdone. The most obvious concern of Interviewees
will be the way that their superiors will respond to the content of the
GR, and more specifically to anything that they say to Reviewers
which, although non-attributable, is nonetheless most likely to be
identified as coming from them by their superiors. The main constraint
on frankness, he argues, is not the prospect or possibility of publicity. It
is the concern of a junior employee who may say something to upset a
superior.

67. According to Mr Pitt-Payne there are really two points relating to
frankness. The first relates to Interviewees being identified in the
reports as having made a particular point. He argues that as the way
the process presently operates, which makes such points non-
attributable to particular individuals in GR reports, means that this
important practice would be completely unaffected by any prospect of
FOI disclosure and can continue.

68. The second point he makes in relation to frankness is the culture or
behaviour surrounding GR’s. OGC reviews and mechanisms are likely
to work well in organizations where the culture allows people to speak
freely and, if necessary, critically, without recrimination. They will not
work well in an organization that does not have that culture.
Organizations either have that sort of culture or not. If they have it they
are not going to lose it overnight merely by the prospect of FOI
disclosure. It will be up to management to assure staff that frankness
will still be valued despite the possibility of disclosure.

69. Mr Pitt-Payne points out that even with non-attribution there is still a
risk that it will be possible from the context of a report to ascertain who
must have been the source of particular comments or information in a
report. But, he says, this is a risk that is present anyway from insiders
particularly the SRO who currently sees the report and will be most
familiar with the position of Interviewees. It is unlikely, he argues, that
people will simply decline to take part in OGC interviews. In Sir Peter

Gershon’s words the review process is part of the “DNA” of the public
sector. It would be unrealistic to imagine that people would not take
part in the system not least because, in accordance with the Civil
Service Code, civil servants must fulfill their duties and obligations
responsibly. This also goes for commercial partners who have an
interest in ensuring that they have a good continuing relationship with
public authorities.

70. The second heading of adverse effect referred to by Mr Pitt-Payne
comes under the general remit of “delay”: that if there is any perceived
risk of GR reports being made public under FOIA then they would be
negotiated and that will take time and use up everybody’s energies and
it will make the process confrontational. He argues that these
consequences are largely in the hands of the public authority in general
and the OGC in particular. The current ground rules are clear and
work: the review is completed within a week; the SRO gets a draft
report on the last day of the review; the report will include
recommendations and a RAG status; these are non-negotiable; and
there is a limited opportunity for the SRO to seek to correct matters of a
drafting nature or factual errors. If the public authority and OGC makes
it clear that these ground rules will still be applied, then the concerns
will soon dissipate.

71. Mr Pitt-Payne labels the third area of concern as that of “deterrence”:
the concern that the prospect of publication would either deter people
from having OGC reviews at all or deter them from having them in
good time or deter them from acting on the recommendations made.
He makes the point that they are compulsory for Civil Central
Government. If an SRO deliberately chooses to delay a GR or ignore
its recommendations the harm, he argues, would be even greater
because of the risk to which the SRO might be placing the
programme/project with the consequent risk of criticism say by the
NAO or PAC. The prospect of a greater level of public accountability

and transparency would operate as an incentive to cooperate with the
review system rather than withdraw from it.

72. The fourth area of concern Mr Pitt-Payne labels as “self-censorship”.
The concern that Reviewers will be less frank, open and
straightforward in their reporting than currently practiced. He argues
that if the GR process is so highly valued then this is a matter for the
OGC to get a strong message across to Reviewers that they should be
frank, open and honest because that is in the public interest. If there is
an increased level of publicity as would be expected under FOIA
generally that is something that participants will have to be robust
about.

73. The fifth area of concern identified by Mr Pitt-Payne comes under the
general heading of “disincentives”: disincentives for people to be
Reviewers, SROs etc. He argues that this is not a realistic submission
by Mr Tam because the SROs and Reviewers are on the whole senior
Civil Servants who are committed to developing their own careers and
it would be inconceivable that they would choose not to engage in the
Gateway process because of a possibility of some GR material being
disclosed under FOIA.

74. The sixth area of concern relates to the position of “commercial”
organizations. Mr Pitt-Payne drew our attention to The Select
Committee on Works and Pensions 2004 Third Report (2004 Report)
(see paragraph 75 below) where it is clear that some outsourced
suppliers would welcome publication of the GR reports and considered
this was not a strong point. He accepted that commercial organizations
would want to protect their confidential information and trade secrets
but noted that there were specific FOIA exemptions for such
information which had not been claimed in this case.

75. The final area of concern was that if information was disclosed it would
be “misinterpreted”. Mr Pitt-Payne pointed out that the Tribunal had

already considered this general issue in Hogan and Oxford City
Council v Information Commissioner where it was not considered a
good public interest argument in favour of maintaining the exemption to
submit that if information was disclosed that it would be misunderstood.
Mr Tam narrowed down the argument from misunderstood by the
public to information disclosed would be misrepresented by the press.
Mr Pitt-Payne quite rightly made the point that if such a general
assumption could be made then it would undermine the whole public
policy behind having a freedom of information regime in the first place.

Factors in favour of disclosure

76. Mr Pitt-Payne points out that the public interest in disclosure is very
often stated at a rather higher level of generality than the public interest
in maintaining the exemption which will centre on the interests set out
in the exemption. The public interest in disclosure will be set out in
terms of interests in transparency, openness, accountability and
informed public debate and so on. However, in this case he argues
there are actually some very specific public interests in disclosure at
stake in relation to two matters; the ID cards scheme and OGC reports
and GR’s.

77. He then argues that one of the principal public interests in favour of
disclosure is contained in the 2004 Report. The means of public
scrutiny currently available such as NAOs and PACs are historical and
retrospective reviews and not related to current projects. GR’s would
provide a level of public scrutiny of current projects. We set out the
relevant paragraphs from 2004 Report:

118. We note that OGC guidance does not provide for a blanket
refusal to publish Gateway Reviews. OGC guidance suggests
that publication of reviews should be determined on the merits of
each case. We asked the Department how Parliament could
exercise its legitimate duty of scrutiny of the Department and its
Agencies when the Department refused to publish any of the

many reviews into projects, such as CSA. In response the
Department defended the Government's decision not to publish
Gateway Reviews and pointed out that the NAO had a clear
responsibility to scrutinise the Department and that "a review of
the Child Support Reform programme will almost certainly take
place when implementation is complete.” We acknowledge the
excellent work of the NAO. Indeed, in this report we have
referred to some of the problems caused by defective IT that
have been identified in successive NAO and PAC reports. The
NAO, as the guardian of the public purse, discharges its
responsibility in a highly effective manner. However, and this is
not a criticism of its skill and dedication, the NAO tends to
undertake post evaluations on projects as part of its value for
money studies or as an audit. Although its reports are presented
to Parliament and published, they are generally historic,
whereas we believe major IT projects should also be subject to
close scrutiny during their development. Current projects need
to be subject to current scrutiny. Parliament and the public
should not be required to wait years after the planning decisions
were made or problems emerged before they can get a detailed
account of what has gone wrong. Parliament requires the
opportunity to scrutinise such projects armed with relevant
detailed information. The NAO produces 60 reviews per year
and cannot fulfil the necessary scrutiny process unaided.

119. It was noticeable from the evidence that a number of other
witnesses supported the case for OGC Gateway Reviews being
published. During oral evidence sessions, a number of major IT
suppliers said that they would welcome publication of OGC
Gateway Reviews, or had no problem with publication, provided
all major IT projects were treated equally. For example, Kevin
Saunders said that SchlumbergerSema would be happy for
them to be published. He added:

“I cannot see any problem that we would have with them being
published, providing there is a clear understanding of the
framework, obviously. I think the reviews would have to be
perhaps even more tightly controlled in terms of the
management and input to them but I cannot see why we would
have a problem with publication because we have been through
them, we know how they work and they make key decisions.”

120. We found it refreshing that major IT suppliers should be
content for the reviews to be published. We welcome this
approach. It struck us as very odd that of all the stakeholders,
DWP should be the one which clings most enthusiastically to
commercial confidentiality to justify non-disclosure of crucial
information, even to Parliament. We were surprised also that
there is little central guidance to departments for dealing with
those circumstances when the commercial IT suppliers are
content for information to be made available and departments
cling to commercial confidentiality. As regards damaging the
review process, Tony Collins made the valid point that perhaps
the reviewers are too close. He told us:

“If Gateway Reviewers believe the quality and rigour of their
advice and work would suffer if their reviews were published, we
would question whether they are too culturally close to those
they are reviewing and therefore perhaps not be sufficiently
independent and objective to reach the tough conclusions that
Gateway Reviews sometimes demand.

“133…In general, no witness thought FOIA would have any
effect on the disclosure of information relating to IT projects. It
was thought that exemptions would apply. Equally, there was no
evidence that FOIA was likely to put off suppliers from bidding
for public sector contracts. Sheelagh Whittaker (EDS) told us
that EDS was experienced in working under jurisdictions that
operated freedom of information legislation and that the only test

was to ensure that any claimed exemptions were genuinely
commercial.”

Mr Pitt-Payne explains that this does not mean that GR’s should be
disclosed immediately under FOIA after being completed. That is not
the position in this case where disclosure is being sought a year to 18
months after the relevant report was produced. It is still disclosure that
would enable the delivery of what the House of Commons Select
Committee is referring to in the previous paragraph, namely current
projects, such as the ID card scheme, should be subject to current
scrutiny. This, he argues, is a strong public interest.

78. Mr Pitt-Payne then argues that the public interest factors taken into
account in the DWP decision at paragraphs 96 to 102 are all relevant
to this case. In summary these are as follows:

a. The importance of the decision to introduce an ID card scheme;

b. The need for informed public debate of such an important
decision;

c. The importance of allowing the public to better judge the
Government’s performance; and

d. The fact the disputed information was mature information.

79. Mr Pitt-Payne then refers us to Mr Edwards’ witness statement where
he sets out what a review team would be looking at in relation to the
implementation of the ID cards programme. This includes whether the
scope and priority had been sensibly defined? Whether the objectives
have been clearly defined? Has a sensible range of options been
properly identified? Have the technical options (for example, in relation
to the National Identity Register, biometrics, etc) been properly
identified and assessed? Have the procurement options been sensibly
and rigorously assessed? Have promising options for rolling out the
programme been similarly identified and assessed?

80. Mr Pitt-Payne agrees that these are all extremely good questions.
They are questions he argues where there is a strong public interest
element, in two respects. There is public interest in informed debate
about these questions. There is a public interest in getting the right
answer to these questions. There is also a public interest, he says, in
understanding what answers the government has reached in relation to
those questions and why, because these questions are all fundamental
to the wider question, namely, is it a good idea to go ahead with the
scheme? Is this a scheme that is do-able, that is deliverable? Is this a
scheme where the benefits will outweigh or justify the costs? Are there
sensible steps in place to ensure that those benefits are delivered for
an acceptable cost and within an acceptable timeframe? If not, does
that mean that the whole scheme should be abandoned or does that
just mean that delivery should be rethought?

The Tribunals Analysis and Findings

81. Although Mr Tam says he is not putting forward a case for GR’s to be
subject to an absolute exemption under FOIA it seems very like that to
us. He says that the combined extent of the harm which will flow from
disclosure is so overwhelming that there can be very few exceptions
and then only possibly after a long period of time, say 30 years. His
whole argument is based on the fact that the GR system can only
continue to be successful if disclosure is not a realistic possibility.

82. The FOIA has been around for 7 years, from before the start of GR’s.
Parliament in its wisdom has absolutely exempted certain information
from the Act, but it has not exempted GR’s as such in this way. The
OGC seems to us to have taken the view that they are exempt despite
the Act and their public utterances that they will consider each request
on its own merits is difficult to reconcile with their training of those
involved in the GR process, their practice of not having released any
GR’s so far and the arguments being put forward in this case.

83. We cannot understand how the OGC appears to have given such
internal assurances that reports would not be disclosed under FOIA.
There has always been a possibility that GR’s would be disclosed
under FOIA. GR’s are all about the management of risk. We would
have thought that FOIA would have been factored into that risk
assessment because cases like this appeal were foreseeable. To have
developed a system on the apparent assumption that there was little or
no risk of disclosure is at the very least unprofessional and at variance
with one of the aims of GR’s which is to encourage and support, in
effect, more professionalism in the way programmes and projects are
undertaken.

84. We are influenced by what the 2004 Report considered in relation to
the publication of OGC GR’s. The Government argued as in this case
that publishing GR’s would weaken the process. Despite this the Select
Committee came to the following conclusion:

121. We are not convinced that the Gateway Review process is
so fragile that the current levels of secrecy are necessary. We
are genuinely sympathetic to any reasonable argument that
justifies some material to be excluded from the published
version of a Gateway Review, but in our view, the Government's
objection to publishing Gateway Reviews is based on an
untested assertion that publication would invalidate the review
process. Publication of inspections and reviews is a widespread
feature of public life nowadays and there is no reason why a
major public IT projects costing millions of pounds, should not
be subject to the same open scrutiny that applies in other areas
of public life. This is especially true when the projects in
question have such a long history of poor service. We
recommend that the Government should publish Gateway
Reviews with appropriate safeguards or failing that to set
out how Parliament otherwise can be provided with the
level of information it needs in order to scrutinise

adequately questions of value for money from major IT
contracts.

123. In short, we believe that more openness is needed and in
our view one way to achieve this would be to give parliamentary
committees greater access to Gateway Reviews. In the event
that the case against full publication of Gateway Reviews
can be substantiated, we call upon the Department to
provide a summary document of each review within 6
weeks of the review being completed. We consider that by
providing more information to Parliament, Ministers and officials
will be under corresponding pressure to be kept fully informed
about projects. (Bold emphasis taken from the report.)

We note that the 2004 Report records the Government and OGC’s
offer to develop a set of guidelines to cover increased access to
information on IT contracts, which could then be used to inform
decisions under FOIA about the amount of information provided on
GR’s and how it proposes to deal with requests for detailed information
on publicly funded IT projects from members of the public. We were not
provided with any evidence of progress on this offer, despite the fact
the 2004 Report recorded that the guidelines were expected to be
agreed by Ministers and published ready for the entry into force of
FOIA on 1^st January 2005.

85. We have accepted in DWP and Department for Education & Science v
The Information Commissioner that Government needs to operate in a
safe space to protect information in the early stages of policy
formulation and development. We can understand the need for a
similar safe space in relation to examination functions, despite what
one witness described as an unusual use in this case of the Gate Zero
Review process. However at the time of the Requests the decision had
already been taken to introduce ID cards, a Bill had been presented to
Parliament and was being debated publicly. We therefore find that in

the circumstances of this case that it was no longer so important to
maintain the safe space at the time of the Requests.

86. We find that the grave consequences for the Gateway process which
Mr Tam maintains would result from even the remotest possibility that
reports would be disclosed is overstated. We prefer Mr Pitt-Payne’s
arguments in paragraphs 64 to 73 above.

87. All the witnesses seem to be of the view that once one report was
disclosed under FOIA the floodgates would open and they would have
to work on the assumption that all reports would need to be disclosed
very soon after publication. This is clearly incorrect. FOIA provides for
many exemptions and where the public interest test is applicable it is
applied to the circumstances of the particular request, not generally to
say any GR’s. There is no reason to believe the floodgates would
open, but clearly GR’s are subject to FOIA.

88. We find it difficult to accept that the OGC is really convinced by the
arguments put forward by Mr Tam on their behalf. Mr Herdan, an
experienced Reviewer and SRO, under cross examination accepted
that although working under OGC rules and the care he took that
nothing said to him by an Interviewee would be attributable, that given
FOIA there could be no guarantee that a report would not be disclosed.
Incidentally Mr Herdan had recently been involved with a GR relating to
the Olympic Games, after at least one of the Decision Notices had
been published, and despite the risks of disclosure following those
Notices had still been able to undertake the GR successfully.

89. We are aware that some of the risks identified in Mr Tam’s areas of
harm are already being addressed in practice. For example Mr
Edwards said in his evidence that he already draft’s GR reports in a
way which recognise that they may become public. He said to us:

“There is always a concern that these reports, like other public
documents, may occasionally enter the public domain, for
example as a result of leakage. For myself, therefore, I always

try to ensure that the reports are drafted diplomatically so that if
this did happen there would be no unnecessary political
embarrassment and no unnecessary damage to the relationship
between Government and officials. The style of the reports is
therefore sensitive to that consideration.”

90. The Tribunal has considered all the circumstances of this case and
finds that the public interest in maintaining the exemption does not
outweigh the public interest in disclosure. In other words we uphold the
Commissioner’s Decision Notices in this case.

91. The Tribunal observes that the RAG status only was requested under
Request 2. If the Requests had not been consolidated this may have
created a problem because the RAG status alone could be
misconstrued unless other parts of Gateway report are disclosed.
Therefore a public authority faced with such a limited request in the
future might choose to disclose other parts of a report in order that the
RAG status can be fully understood, unless of course an exemption is
being claimed.

Remedies

92. The Tribunal orders that the disputed information is disclosed to the
complainants. However before requiring this order to be carried out we
are prepared to give the parties 14 days from the date of this decision
to make written submissions to us as to whether the names of the
individuals listed as Reviewers and Interviewees in the disputed
information should be redacted. Once we have determined this matter
we will then require the OGC to disclose the information in whatever
format we determine within 14 days of that determination.

John Angel

Chairman Date 02 May 2007

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	United Kingdom Information Tribunal including the National Security Appeals Panel
You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Office of Government Commerce v Information Commissioner [2007] UKIT EA_2006_0068 (2 May 2007) URL: http://www.bailii.org/uk/cases/UKIT/2007/EA_2006_0068.html Cite as: [2007] UKIT EA_2006_68, [2007] UKIT EA_2006_0068



	Reasons for Decision The requests for information 1. On 3^rd January 2005 Mr Mark Dziecielewiski (Mr D) requested the following information from the Office of Government Commerce (OGC) (Request 1): “Please provide me with the two pre-Stage Zero and the actual Stage Zero Gateway Reviews of the Identity Cards Programme project being run by the Home Office.” 2. On 1^st February 2005 the OGC sent a letter to Mr D advising him that the information requested was subject to two qualified exemptions under section 33 (examination functions) and section 35 (formulation of government policy) of FOIA and that they would need time to consider the balance of the public interest. On 22^nd February the OGC informed Mr D that they would be refusing part of Request 1 because the public interest in maintaining the exemptions outweighed the public interest in disclosure (Refusal Notice 1). The background information contained in both Gateway Reviews (GRs) was disclosed. Following an internal review of the decision Refusal Notice 1 was upheld by letter dated 24^thMarch 2005 to Mr D from Peter Fanning, the Deputy Chief Executive of the OGC. 3. On 25^th February 2005 Mr Mark Oaten MP (Mr Oaten) requested by way of Parliamentary Question (PQ) (Request 2): “To ask the Chancellor of the Exchequer what traffic light status was awarded to the identity cards scheme by the Office of Government Commerce at the Gateway Review 1 Stage.” 4. Mr Boateng, the Chief Secretary to the Treasury, by way of Commons Written Answers, informed Mr Oaten that “The ID Cards programme has not yet undergone a Gate 1 Review. It has, however, undergone two OGC Gate 0 Reviews, in June 2003 and January 2004

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United Kingdom Information Tribunal including the National Security Appeals Panel