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November 23, 2016

Telegraph wins FoI battle over advice to Tony Blair

By PA Medialawyer and Press Gazette

The Daily Telegraph has won a freedom of information battle to uncover advice on taking up private sector work which was given to former premier Tony Blair by the Advisory Committee on Business Appointments (ACOBA).

The committee’s initial refusal was unreasonable as it was undermined by evidence given to a Parliamentary committee by both its current and previous chairs, each of whom had stressed the importance of public opinion and investigative journalism in helping keep ministers and others from taking on inappropriate appointments after leaving office, said the First Tier Tribunal (FTT).

The Tribunal upheld an appeal by Daily Telegraph deputy investigations editor Edward Malnick against the Information Commissioner’s decision upholding ACOBA’s refusal to disclose the information.

ACOBA had rejected the request on the grounds that it was exempt from disclosure by sections 36 (2) and 40 of the Freedom of Information Act.

Section 36 (2) provides an exemption if disclosing the information would be likely to inhibit the free and frank provision of advice or would be likely to prejudice the effective conduction of public affairs, while section 40 covers personal information.

But in a decision on November 3, the FTT said that ACOBA’s reliance on the qualified exemption in section 36 (2) was unreasonable as it failed to take account of the committee chairs’ own evidence to Parliamentary committees on the importance of investigative journalism and the “court of public opinion” in helping ensure that ministers followed the advice it gave on whether they should take up various private sector appointments or work.

ACOBA’s refusal to disclose the information sought was taken by its chair, Baroness Browning.

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But in April she told the Commons Public Administration Constitutional Affairs Committee (PACA) that while ACOBA had no powers to enforce its recommendations, those who flouted or ignored it were likely to be exposed by the press.

This evidence, the FTT said, “puts beyond doubt the inadequacy” of the opinion Baroness Browning had purported to give in refusing disclosure under section 36 (2).

“The same person who gave that opinion was, here, recognising the importance of investigative journalism as an enforcement mechanism, which serves to underpin the purpose of ACOBA,” it went on.

But “having acknowledged both the important contributions that can be made by investigative journalism to supporting ACOBA’s work and the difficulties that such journalism currently faces in undertaking that role, Baroness Browning failed to have regard to these matters” in her decision on the Daily Telegraph’s request.

The FTT said the PACA transcripts made clear that there was “at the very least a case for permitting journalists (and by extension the public) to know – by asking ACOBA – whether ACOBA’s advice has been disregarded”.

This meant that arguments against disclosure based on the need for “safe space” for advice or discussion had to be carefully examined.

There was, said the FTT, a “strong public interest” in knowing about exchanges between ACOBA and Mr Blair and his office within the period covered by the newspaper’s request.

“The strength of that interest is not diminished by the fact that the period ended over seven years ago,” it said.

“Mr Blair’s post-ministerial activities have attracted a degree of public interest which is of a quite different nature from the desire that the public might have to know about the lives of persons whom it considers to be ‘celebrities’

“In particular, Mr Blair’s business and commercial dealings have spawned a wider, important debate about the interface between political life and the world of business and commerce.”

There was also force in the newspaper’s contention that, if Mr Blair’s dealings with ACOBA could not be disclosed because of what was identified as the public interest in withholding the information, then ACOBA “effectively enjoys an absolute exemption” under the Act.

The FTT ordered the Information Commissioner to issue a new decision which did not rely on section 36 (2).

Earlier this month a new apparent threat to weaken the Freedom of Information Act, just over six months after the Government promised to leave the Act alone, emerged.

The Government has said it is considering resurrecting one of the key recommendations the Independent Commission on Freedom of Information: ending the right to appeal to the First Tier Tribunal against a decision by the Information Commissioner’s Office to block the release of information.

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