ICO 'naively accepted disingenuous' Home Office arguments in FoI decision, tribunal rules

Tribunal says public interest in withholding stop-and-search policymaking document was “negligible”
Police perform stop-and-search operation at Notting Hill Carnival, London. Photo: Vibrant Pictures/Alamy

By Tevye Markson

28 Sep 2023

The information commissioner “naively accepted disingenuous arguments” from the Home Office in backing the department’s refusal to release a stop-and-search policymaking document, a tribunal has found.

The First-tier Tribunal General Regulatory Chamber has overruled the watchdog's decision that disclosing an equality impact assessment would harm Home Office policymaking. It said the public interest in favour of withholding the stop-and-search analysis is “negligible”, while the interest in disclosure os “of substance”.

"It is to be regretted that the ICO naively accepted the disingenuous arguments of the Home Office at face value,” the tribunal said.

The tribunal has ordered the Home Office to release the information by 15 October, and the department has agreed to do so.

The Home Office published the Beating Crime Plan in July 2021, which included an objective to enable police to take more knives off the streets and to prevent serious violence by permanently relaxing conditions on the use of Section 60 stop-and-search powers. The equality impact assessment (EIA) was prepared at the same time.

Human rights advocacy group Liberty sought a judicial review of the stop-and-search elements of the Beating Crime Plan, which the home secretary initially resisted. However, the Government Legal Department wrote to solicitors for Liberty to say it had “come to light” that the EIA had not contained a full analysis of available options and therefore the home secretary had withdrawn her decision and would reconsider the policy. Liberty then sought the EIA.

The Home Office refused the request, using Section 35(1)(a) of the Freedom of Information Act – an exemption which relates specifically to the formulation or development of government policy – stating that the public interest falls in favour of maintaining the exemption.

The Home Office said it was still using the EIA while considering the policy and said the balance of public interest rested with non-disclosure to prevent misinterpretation and the diversion of resources away from consideration to deal with misinterpretations.

It said disclosing information on “ongoing policy development prematurely and which is not intended for public dissemination" would “fuel unhelpful and inaccurate conclusions on an already controversial issue” and undermine officials' ability to provide free and frank advice on policymaking.

It also said it could deter external experts or stakeholders, who might be reluctant to provide advice if the information is disclosed.

The decision was referred to the ICO, which agreed with the department, saying: “It is in the public interest to ensure that policy making on a serious issue such as stop and search is afforded the safe space in which to be deliberated and developed freely to ensure the powers are lawful and proportionate.”

But, following an appeal, the tribunal has disagreed, concluding there were, “on a proper analysis, no harms from disclosure”.

Judge Christopher Hughes said the idea that official external experts or stakeholders who contributed to the EIA would have been inhibited from contributing to the document if they knew it would be released was “inconceivable and demeaning of their integrity”. His judgment added that while stop and search is “arguably a contentious policy area”, quoting the ICO’s term for it, “that derogatory euphemism for moral significance and complexity is precisely why both official external stakeholders and civil servants wish to contribute” to the policy.

The judgment said applying the ICO’s reasoning more widely would suggest documents such as minutes of the Monetary Policy Committee of the Bank of England should not be published, as this area of policy would be in a state continuous evolution; whereas the regular publication of those minutes is an important part of the bank's accountability in explaining its efforts to meet its inflation target.

Martin Rosenbaum, an FoI expert, said this was one of several recent examples where the ICO had backed a public authority under section 35/36 of the act, but been overruled by a tribunal ruling the public interest strongly favours disclosure.

But he added: “It's very unusual for a tribunal to be so critical of the ICO, even when overturning a decision.”

A Home Office spokesperson said: “Our priority is to keep the public safe, prevent violence and save lives. That is why the government fully supports the police to use their full stop and search powers and has taken action to improve the public’s confidence that the power is being exercised proportionately and legitimately.

“In line with the judgment, we will be releasing the information to the requestor by the deadline.”

An ICO spokesperson said: “We note the tribunal’s findings and will be reviewing the judgment in due course”.

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