Relight My FOIA

Last year, I wrote about the issues I faced in trying to get hold of a copy of Rishi Sunak’s disclosure of interests to the Cabinet Office.

Sunak was found to have breached parliamentary rules inadvertently by failing to declare his wife’s shareholding in a company which would benefit from government childcare policies.

Following the story, I asked for a copy of his full disclosure of interests, to see if there were any other conflicts.  Under the rules, ministers have to disclose all relevant interests.

The Independent Adviser on Ministerial Standards then determines what material disclosed should be placed in the public domain in the register of minister’s interests.

The Cabinet Office refused to release the information to me or to the ICO, even after I filed a complaint with the regulator.

When the ICO issued a formal information notice requiring disclosure, the Cabinet Office then made the extraordinary move of taking legal action against the ICO to try and avoid having to disclose it.  

Making the regulator’s job impossible

The information tribunal has now issued its ruling on this appeal. It thoroughly rejected the Cabinet Office’s arguments.

The department had argued that disclosure to the regulator would breach Sunak’s data protection rights, that the Commissioner didn’t need to see the material to decide on what should be released, and that the issuing of the information notice was premature as negotiations were ongoing.  

Tribunal judge Rintoul found that:

“We are satisfied in the circumstances of this case, bearing in mind the statutory duty, that the Commissioner’s processing of such data is necessary and fair, those being in this context the same thing.”

“The alternative and bearing in mind that the processing of any data by the Commissioner from a public authority would fall within this ambit were the proposition by the Cabinet Office, to be adopted, could render the Commissioner’s duty almost impossible.”

He concluded that:

“In summary, we consider that it would not, standing in the Commissioner’s shoes, been possible to determine whether any of the exemptions prayed in aid were made out without an examination of the material. Accordingly, we dismiss the appeal.”

It was good regulatory work by the ICO to pursue this case rather than folding, and this decision will make it much harder for public bodies to try the same trick in future, as any attempt could be referred back to this case as evidence they were on a path to nowhere.

Tribunal scepticism

Despite appearances as a witness in front of several tribunals by Director of Propriety and Ethics at the Cabinet Office Simon Madden, the tribunal seems to be becoming sceptical of the claims by the Cabinet Office of serious harms that would flow from the disclosure of relatively mundane material.

In a similar recent case, the Tribunal threw out suggestions that disclosure of blank ministerial interest forms would make ministers less likely to provide a full picture of their interests.

Judge Mornington found in that case that:

“Any minister who takes a more narrow view of the form and fails to make full and frank disclosures or becomes less candid would be in breach of the Ministerial code and ought to be held to account.”

Damage done

However, to some extent, the delays in my case have already done the necessary damage.

My Sunak case will now revert to the ICO, after the Cabinet Office now belatedly complies with the information notice.

The ICO may then rule that the material should not be disclosed, and I would then have to consider whether an appeal to the tribunal is worth it.

In any case, disclosure in this case is still a long way off and will only come long after Sunak left office.

The material released could be interesting and hopefully this case will make challenges of information notices less likely.

But ultimately, the Cabinet Office has prevented me from obtaining this information when it would be of most value for accountability purposes, albeit at considerable taxpayer expense.

Photo credit: Simon Walker / No 10 Downing Street