Written evidence from Professor Nigel Ashton (FOI 22)

 

Public Administration and Constitutional Affairs Committee

The Cabinet Office Freedom of Information Clearing House

 

 

I would like to alert the Committee to the Cabinet Office’s handling of an FOI request, which I originally submitted in 2014. I sought information about the British government’s policy towards Libya for a history book I was writing covering Britain’s relations with the Qaddafi regime from the revolution of 1969 through to Qaddafi’s fall in 2011. The final request I submitted to the Cabinet Office was for six Prime Minister’s Office (PREM) files covering the period 1990-2002.

 

The Cabinet Office fought this request at every turn and was only finally forced to concede defeat as a result of a ruling in my favour issued by the Upper Tribunal in June 2018. I think the Committee could profitably examine this ruling (GIA 2782 2017-00) since it contains much detailed evidence relevant to its current proceedings:

(https://assets.publishing.service.gov.uk/media/5b57139a40f0b6339963e8cf/GIA_2782_2017-00.pdf)

 

Why does the ruling in my case matter both in terms of the Cabinet Office’s approach to FOI and more broadly for information rights? To explain this, we need to understand what was at stake in the case. There are two relevant sections of the Freedom of Information Act. Section 12 which concerns cost limits and section 14 which concerns what are known as ‘vexatious’ requests. A public authority can refuse a request if it violates either section. The problem with the Act as far as public authorities are concerned is that section 12 only covers what are essentially administrative costs (finding and photocopying documents). In my case, the Cabinet Office could not use section 12 to refuse the request since the main burden of cost did not lie in photocopying documents, but in considering them for redaction and release in relation to national security. So, this became a battle about section 14 of the Act and the meaning of the word ‘vexatious’. Could the Cabinet Office argue that the 80 hours of review time they estimated it would take them to process my request, made it ‘vexatious’ under the terms of the Act?

 

Earlier rulings in the Court of Appeal and the Upper Tribunal had established that a test of proportionality must be applied in judging whether a request was vexatious. In other words, did the extent of the public interest engaged outweigh the burden on the public authority in processing the request?

 

The basis of my case at both the First Tier and Upper Tribunals was simple. As I put it in my original appeal: The point of the FOIA request is to bring into the public domain information about the contradictory conduct over time of British policy toward Libya which was instrumental in creating the failed state that we now have on the southern shore of the Mediterranean.

 

The First Tier tribunal found in my favour. It is worth quoting the terms of that ruling, which were repeated in the Upper Tribunal’s decision, to understand why: The records he seeks concern the reaction of the UK Government to the murder of hundreds of people over Lockerbie by a Libyan agent, the involvement of the Government of Libya in facilitating the murders committed by the PIRA, the rapprochement with that Government in the light of concern about Islamist terrorism and the decision to use force to protect an insurgency against that Government during the Arab Spring. These are all substantial questions of public policy where there is a profound public interest in understanding the Government’s approach. The information sought is of great value to the public and to a historian.

 

The ruling by the Upper Tribunal, confirming the First Tier tribunal’s reasoning, underlines that an FOI request cannot be refused as ‘vexatious’ on cost grounds alone, where a substantial public interest has been identified which outweighs the burden imposed by those costs.

 

My argument throughout was that the public needed access to information to understand the contradictory course of British policy towards the Qaddafi regime across the decades. We have, rightly, had a full inquiry into the mistakes made over policy towards Iraq. We have had nothing similar for Libya, even though, unlike over Iraq, Britain was often in the lead in shaping Western policy towards Qaddafi.

 

Perhaps, rather than seeing this as no more than a burden, the Cabinet Office might have stepped back and admitted that there could be lessons to be learned by releasing information about policy towards Libya. Instead, it chose to fight this request at every turn and to try to exploit the section 14 exemption for ‘vexatious’ requests in such a way as to undermine fundamentally the central purpose of the FOI (2000) Act. It is for parliament to legislate if it thinks the current terms of the FOI (2000) Act need to be changed. It is not for the Cabinet Office to seek to exploit a limited exemption in such a way as to expand its reach in a wholly unwarranted manner.

 

I commend Judge Wikeley’s ruling on 21 June 2018 in the Upper Tribunal to the Committee for further information about the Cabinet Office’s approach.

 

 

September 2021