Tue 22 June 2021

In a case brought against Michael Gove’s department by openDemocracy, a judge has found that it provided misleading information about a unit coordinating Freedom of Information requests

The Cabinet Office was “misleading” about the ‘Clearing House’, which blocks the release of politically sensitive information and circulates lists of journalists across Whitehall, an information tribunal judge has found.

In a strongly-worded ruling, the judge found that there is a “profound lack of transparency about the operation” of the unit, which “might appear… to extend to ministers”.

The tribunal ruling comes almost three years after openDemocracy first asked for a sample of the Clearing House lists. After the Cabinet Office refused to comply with the Information Commissioner’s Office, to disclose details of the Clearing House, openDemocracy took a case to the information tribunal with public interest law firm Leigh Day.

Finding in openDemocracy’s favour, the judge criticised the Cabinet Office for a “lacuna in public information” about how the Clearing House coordinates Freedom of Information (FOI) requests referred to it by Government departments and agencies.

At one stage in the case, the Cabinet Office – which is responsible for FOI policy – had offered an out-of-date Wikipedia page as evidence that information about the Clearing House was available to the public.

Releasing documents to openDemocracy, the judge found that “given all the circumstances”, including “a lack of accurate, publicly available information about the constitutionally significant role in coordinating FOI responses, there is real weight in the public interest in disclosure”.  

The judge also found that the Cabinet Office had “minimised the significance of” the Clearing House FOI list, which is circulated daily across Whitehall and has contained the names and details of journalists from openDemocracy, the Guardian, The Times, the BBC, and many others, as well as researchers and campaigners. These lists also contain the Cabinet Office’s advice to departments on how to handle FOI requests.

The Clearing House has attracted criticism since openDemocracy first revealed extensive details about its operation last year. In February, more than a dozen former and serving Fleet Street editors signed an open letter calling for an inquiry. FOI requests are supposed to be ‘applicant-blind’, meaning that who makes the request should not matter; with data protection experts warning that the Clearing House could be breaking the law.

Angela Rayner, Shadow Cabinet Office Minister, has called for her counterpart in Government, Michael Gove, to “intervene and set out how he will be ensuring that this Government abides by the law and upholds the right of citizens, journalists and campaigners to access information under Freedom of Information”.

“The Cabinet Office lists one of its own key responsibilities as ‘making the way government works more transparent’, yet as the court’s damning judgement makes clear, Conservative ministers are determined to undermine accountability and transparency at every turn,” she added.

Conservative MP David Davis said that the court ruling “demonstrates what we have known all along. The Cabinet Office has failed to meet its obligation in either the letter or the principle of the Freedom of Information Act and has withheld important information about government activity from the public domain. This has got to change immediately”.

A spokesperson for the Information Commissioner’s Office said it welcomed the decision of the tribunal.

‘High Political Sensitivity’

The Cabinet Office has previously insisted that the FOI unit was fully compliant with all legislation and attacked reporting about the Clearing House.

Ahead of the tribunal in April, Michael Gove wrote to the Guardian and the Society of Editors calling openDemocracy’s journalism “ridiculous and tendentious”.

But, the Cabinet Office then backtracked and Gove’s department published information about the unit, including the criteria by which FOI requests – such as “cases involving high political sensitivity” – were referred for review.

In court, the Cabinet Office said that the Clearing House handled ’round robin’ requests sent to multiple Government departments but stated that these lists did not include ‘sensitive’ requests.

Noting that the Cabinet Office had “changed its position radically”, the judge found that Gove’s department had “misled” the tribunal by originally stating that the Clearing House lists had included ‘sensitive’ data that would have justified withholding the information.

Meanwhile, questions have been raised about whether the Clearing House lists have actually contained information about politically sensitive FOI requests – contrary to the Cabinet Office’s argument in court.

openDemocracy’s analysis found that one-third of requests on a sample Clearing House list released under FOI were singular – meaning that they had not been sent to multiple departments. Often these requests were of high public interest.

Documents obtained by openDemocracy also show that Whitehall departments have routinely flagged ‘sensitive’ requests to the Clearing House. In one instance, the Cabinet Office unit instructed the Treasury to withhold information from infected blood campaigner Jason Evans, whose father died after being given blood contaminated with HIV and Hepatitis. Clearing House staff compared the situation to the Chilcot Inquiry into the Iraq War.

An openDemocracy report published last year found that the Cabinet Office is the worst-performing Whitehall department on key FOI metrics.

Erin Alcock, of Leigh Day, said that the judge’s decision is important because it “demonstrates the tribunal understood and gave weight to the value of public discourse over the activities of the Clearing House” and that openDemocracy “has been raising serious and legitimate concerns for some time now that the Clearing House may be presenting barriers to transparency, and may not accord with the spirit of the Freedom of Information Act”.

Labour MP and member of Parliament’s Public Administration and Constitutional Affairs Committee, John McDonnell, said: “Access to information is essential to a healthy democracy if people wish to hold its government to account. It’s clear that there are some in Government who are doing all they can to avoid accountability by frustrating our Freedom of Information laws. It’s time for a root-and-branch reform to strengthen the Freedom of Information Act.”

A Cabinet Office spokesperson said that “a Clearing House function has existed since 2004 to help ensure there is a consistent approach across government to requests for information which go to a number of different departments or where requests are made for particularly sensitive information” and that it is “committed to transparency” and will “always balance the need to make information available with our legal duty to protect sensitive information”.

This article was originally published by openDemocracy

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