Freedom of information - Guardian challenge succeeds

Just over three years ago, Rob Evans, a Guardian journalist, wrote to 17 central government departments asking to be provided with specific information relating to how the Ministerial Code was being applied so that ministers avoided conflicts of interest. Although the journalist was careful to ensure that confidential ministerial discussions did not have to be disclosed, the Government refused to provide the requested information. The Parliamentary Ombudsman was then asked to investigate.

However, in July 2003, her investigation was discontinued because she had received a written notice signed by the Secretary of State for Constitutional Affairs and by the Minister of the Cabinet Office, issued under a never before used section of the Parliamentary Commissioner Act.

The notice stated that providing the requested information would be “prejudicial to the safety of the State or otherwise contrary to the public interest”.

Evans sought judicial review of the decision to issue the notice on the basis that it was unfair, an infringement of Article 10 rights (free speech) and irrational. On 18 March 2004, in a landmark victory for freedom of information, the Government admitted it had been wrong to issue the gagging order on the Parliamentary Ombudsman, dropped the challenge and agreed to pay The Guardian’s costs.

This climbdown immediately followed the Parliamentary Ombudsman having ruled in another case, where she was not gagged, that the Prime Minister had to provide information about breakfast meetings with captains of industry at 10 Downing Street. This information, when provided, proved to be highly embarrassing to the Government. Embarrassment, however, is not a reason to withhold information under the existing Code on Access to Government Information, soon to be replaced when the Freedom of Information Act 2000 is fully implemented.

From 1 January 2005 everyone, including journalists, will have a statutory right of access to information held by public authorities, subject to certain exceptions. This should be a huge weapon for journalists with which to hold the Government to account, as The Guardian’s challenge has shown.

Jennifer McDermott is a partner in the technology, telecommunications and media department at Lovells

Jennifer McDermott

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