Office of Government Commerce v Information Commissioner

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeStanley Burnton J
Judgment Date11 April 2008
Neutral Citation[2008] EWHC 737 (Admin),[2008] EWHC 774 (Admin)
Docket NumberCase Nos: CO/5491/2007

[2008] EWHC 737 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL

Information Tribunal

Freedom of Information Act 2000 (FOIA)


Mr Justice Stanley Burnton


Information Tribunal Chairman

John Angel and

Lay Members

David Wilkinson and Peter Dixon

Case Nos: CO/5491/2007


Appeal Numbers: EA/2006/0068 and 0080

Office of Government Commerce
Information Commissioner
Her Majesty's Attorney General on Behalf of the Speaker of the House of Commons
Office of Government Commerce
Information Commissioner

Jonathan Swift (instructed by the Treasury Solicitor) for the Appellant

Timothy Pitt-Payne (instructed by the Office of the Information Commissioner) for the Respondent

Martin Chamberlain (instructed by the Treasury Solicitor) for the Intervener


For the Appellant: Mr Robin Tam QC.

For the Respondent: Mr Timothy Pitt-Payne


Hearing dates: 3, 4, 5 March 2008

Stanley Burnton J



1. This is a statutory appeal by the Office of Government Commerce (the OGC) against two decisions of the Information Tribunal. Both relate to gateway reviews carried out by the OGC of the Government's identity card programme. The first decision, dated 2 May 2007, upheld decision notices of the Information Commissioner requiring the disclosure to one of the complainants, Mark Dziecielewski, of both gateway reviews, subject to an issue as to the disclosure of the names of those who participated in the reviews, whether as persons conducting the reviews or as persons interviewed by them, and the disclosure to the other complainant, Mark Oaten MP, of the traffic light status of the reviews. By the second and supplemental decision, dated 4 June 2007, the Tribunal decided that the names of those who had participated in the reviews should be redacted when the gateway review documents are disclosed, apart from the names of the politicians who had been interviewed, the name of the Senior Responsible Owner (“SRO”, an acronym that is also thought to stand for Senior Responsible Officer) and the name of the person recruited as Programme Director as a result of the second gateway review. However, the Tribunal also required disclosure of the numbers and status of those interviewed, in the form set out in the Tribunal's supplemental decision. That decision is a closed decision: i.e., it remains confidential until the final determination of these appeals, and will become public if the appeal against both decisions ultimately fails, but not otherwise.


2. This appeal is the first occasion on which the Court has been required to consider the effect and application of the provisions of the Freedom of Information Act 2000 (“ FOIA”) as to qualified exemption from disclosure.


3. For convenience, the first decision of the Tribunal is annexed to this judgment.


Gateway reviews


4. I can take the description of gateway reviews and the practice relating to them from paragraphs 9 to 21 of the Tribunal's decision, which has not been criticised by either party.


The facts


5. The first of the gateway reviews relating to the identity cards programme was completed in June 2003, and the second in January 2004. Both were gateway zero reviews. The Identity Cards Bill was published in November of that year, but was lost when the General Election was called in 2005 and Parliament was prorogued. The Bill was re–introduced the following year, and received the Royal Assent on 30 March 2006.


6. The fact that the identity card programme is controversial as a matter of principle, because of its civil rights implications, and in relation to its technical practicability and its cost, is highly relevant to this appeal. It is not suggested that the programme is not the legitimate subject of public interest.


7. In December 2003, in evidence given to the Home Affairs Committee of the House of Commons, it was informed that there had already been gateway reviews of the identity card programme, and that a gateway zero review was to take place in January 2004. That evidence was published in July 2004 with the Fourth Report of the Committee on the programme.


8. In December 2004, in a Parliamentary question, Mr Oaten asked the Home Secretary which stages of the gateway process the programme had passed through. In a written answer, he was informed that it had completed a gateway zero review in January 2004.


9. By an email dated 1 January 2005, Mr Dziecielewski made a formal request under FOIA for the stage zero gateway reviews of the identity card programme. He stated that they were relevant to his correspondence with his local MP, Dr Vincent Cable, like Mr Oaten a member of the Liberal Democrat Party. Mr Dziecielewski gave no further information as to the subject of this correspondence.


10. By an email dated 1 February 2005, the OGC claimed that section 33(1)(b) of FOIA applied to all of the information Mr Dziecielewski had requested and that section 35 applied to some of that information. It stated that it had not yet decided on the balance of public interest, and promised to do so by 22 February. In a further email, dated 22 February 2005, the OGC set out the considerations it had taken into account that militated against disclosure of the requested information and those that favoured disclosure, and asserted that the former outweighed the latter.


11. By an email dated 23 February 2005, Mr Dziecielewski requested an internal review of the refusal of disclosure. The result of the internal review, which had been carried out by the deputy chief executive of the OGC, was communicated to him by email on 24 March 2005. The OGC maintained its decision that the information sought should not be disclosed. In summary, the author of the internal review concluded:

(a) The Gateway process had delivered a public benefit, in that it had accounted for over £700 million of savings in the SRO2 period.

(b) It depends on candour and confidentiality. Senior Responsible Owners (i.e., the civil servants with responsibility for projects, universally referred to as SROs) will be deterred from requesting a gateway review if an adverse review is liable to become public; members of project boards and others who are interviewed for the purposes of a gateway review will be less outspoken if their views are liable to be published; and gateway reviewers will be less forthright in their reports if there is a danger of disclosure to the public.

(c) Disclosure could undermine the still live policy development process relating to identity cards.


12. Mr Dziecielewski exercised his right to apply to the Information Commissioner for disclosure of the information he sought. The Information Commissioner's decision was dated 31 July 2006. He decided that the OGC had failed to comply with its obligations under section 1(1) of FOIA, and required disclosure within 35 days. He was satisfied that the OGC is a public authority to which section 33(1) of the Act applies, but he was not satisfied that the release of the requested information would, or would be likely to, prejudice the exercise of its functions, and accordingly held that the exemption in section 33 was not engaged. He was prepared to accept that section 35 was engaged, but held that the public interest in maintaining the exemption did not outweigh that in disclosing the information.


13. The OGC appealed to the Tribunal against the Information Commissioner's decision.


14. The second request for disclosure originated in a Parliamentary question asked by Mark Oaten MP:

To ask the Chancellor of the Exchequer what traffic light status was awarded to the identity card scheme by the Office of Government Commerce at the gateway review 1 stage.


15. The traffic light (RAG) status awarded to the scheme would not have been informative as to the health or practicality of the programme, but only an indication of the time within which the recommendations made by the reviewers should be considered and implemented. Nonetheless, the then Chief Secretary to the Treasury, Paul Boateng MP, in his written answer of 16 March 2005, stated:

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. The traffic light status awarded by these reviews is exempt from disclosure under the Freedom of Information Act 2000 as disclosure would be likely to prejudice both the ability of OGC to examine the effectiveness, efficiency and economy with which other Government Departments exercise their functions and also the formulation and development of Government policy. I believe the public interest in disclosure of such information is outweighed by the public interest in non-disclosure.


16. Mr Oaten was dissatisfied with this response. He wrote to Mr Boateng on 16 March 2005 stating:

I find the reasons provided to justify withholding this information inadequate. I specifically asked for the scheme's traffic light status rather than any of the detail of the OGC's work. Given the unprecedented scale, expense and constitutional implications of the scheme, I believe there is a clear public interest case for disclosure. I note that the independent assessment conducted by the London School of Economics warns that the scheme may run over the budget by several billion; the public is surely therefore entitled to know...

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