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 Government forced by DEA FoI Victory to release consultation document on drug classification system

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sunshine band



Posts : 2
Join date : 2010-03-14

PostSubject: Government forced by DEA FoI Victory to release consultation document on drug classification system   Sun Mar 14, 2010 8:45 pm

Posted in March 14th, 2010

by UKCIA in News and comment


We all know and understand that the drug
laws are supposedly based on the harm drugs can cause, hence the ABC
classification system. What is also becoming common knowledge is that
the whole thing is in a mess. It now seems that the government has been
aware of this for some time and tried to get out of the mess by
adopting some other measure to justify prohibition.
Re-wind to the start of the war on (some) drugs; The UN Single Convention had high ideals:
<blockquote>Recognizing that addiction to narcotic drugs constitutes
a serious evil for the individual and is fraught with social and
economic danger to mankind</blockquote>
“Narcotic” drugs of course came to mean all manner of substances
quite unconnected with the sleep inducing properties of true
“narcotics”. But it was to comply with the aims of the Single
Convention that the UK introduced the mess that is the “Misuse of drugs
act” – the MoD act. Right from the start the UK accepted that not all
“drugs” were equal and that some were more dangerous than others.
Cannabis in particular was and still is the big problem. Hence we have
the ABC system which is supposed to rank drugs according to their
harmfulness and thus guide the penalties to be applied for possession
and trading.
The real story starts back in 2005 when Charles Clarke as Home
Secretary asked the ACMD to have another look at their earlier advice
to place cannabis in class C of the MoD act. Clarke’s stated reason at
the time was because of concerns about the effect of cannabis on mental
health. This of course was at the height of the reefer madness V2
campaign, as reports at the time make clear; the BBC for example chose to quote Paul Corry, an activist in the RETHINK charity who claimed
<blockquote>At last the government has woken up to the risk they
have been running of a drug induced mental health crisis,” he said.
“There is mounting evidence that cannabis dramatically increases the
risk of developing schizophrenia in people where there is a family
history of the illness, and significantly increases the risk even where
there is no family history.</blockquote>
Actually there isn’t but that was how the issue was being reported
in the quality media at the time, the tabloids of course were far
worse. So even mild cynics would suspect Clarke referred cannabis back
to the ACMD to take the issue off the political agenda in what was
after all an election year, when the Tories had been playing the drug
warrior card.
Also quoted in that BBC report was Martin Barnes of Drugscope who gave a more measured comment:
<blockquote>It is right that the classification of cannabis, as with
all drugs, is closely monitored on an ongoing basis. But we must ensure
that such monitoring takes place on a rigorously scientific basis and
is not motivated by political factors.</blockquote>
So anyway, we all know the history; the election happened, the
Tories blew it, Labour got back in and Charles Clarke remained Home
Secretary. Clarke was quite happy to play the drug warrior throughout
all this, talking about deterrence and the need to “send out the right
messages” and so on. In due course the ACMD did it’s review and came
back with the answer that cannabis should remain a class C drug and so
Clarke had to stand up before Parliament and announce there would be no
change.
However, Mr Clarke is nothing if not an astute politician. He must
have thought long and hard about the situation he found himself in;
wanting to increase the penalties for cannabis to look tough and yet
unable to on grounds of the scientific assessment of the health risks
it posed. A real dilemma for a politician of his ilk.
He was also no doubt aware of the glaring twin problems of alcohol
and tobacco – two psycho active substances both at least as dangerous
as any illegal drugs if not far more so yet not included in the Mod act
for highly dubious “cultural” reasons. He was also aware of Prof Nutt’s
approach of designing a “measure of harm” index by which the ranking of
drugs would be decided, He was worried that the whole MoD act stood the
risk of being blown out of the water by an ABC scale which was so
obviously flawed. He could see problems were coming and decided to do
something about it.
So it was that on 20th January 2006 The Guardian reported
<blockquote>A complete overhaul of the 30-year-old system for
classifying illegal drugs is to follow the decision yesterday by
Charles Clarke, the home secretary, to confirm the lower class C status
of cannabis. He said he was ordering the review to ensure that
decisions were based on their wider harm to society and not just a
health assessment of the clinical evidence.</blockquote>
Most people in the drug law reform camp welcomed this review,
however shortly after the announcement Mr Clarke was out of government
and the new Home Secretary John Reid buried the whole idea and it was
never heard of again, until now that is.
The “Drug Equality Alliance” (DEA)
is a group we’ve mentioned before who have been making waves of late.
They have an interesting approach to challenging the workings of the
UK’s drug laws, essentially their claim is that the MoD act is being
applied in an arbitrary way and is unfit for purpose because of the
failure to include alcohol and tobacco within the overall drugs policy.
See their website for a far better explanation of what is a very
complex and interesting argument. Just last week they secured an order
forcing the release of the consultation paper Charles Clarke was going
to publish on drug classification and which John Reid buried.
For pretty obvious reasons this could be dynamite, showing the
application of the MoD act to be arbitrary and thus discriminatory,
based as it clearly is on the “cultural” acceptance of some drugs as
opposed to others which is central to the DEA argument. Darryl Bickler
wrote to UKCIA expressing the view that
<blockquote>this will reveal that many years ago govt know that the
classification system was unfit for purpose, that Alcohol and tobacco
were drugs that needed controlling.</blockquote>
Dynamite indeed. It might show something else as well; shortly
after Clarke made his ill-fated announcement of a review of policy, on
18th July 2006 the Select Committee on Science and Technology issued
its 5th report, Section 7
of which was called “A scientifically based scale of harm?” and
addressed the ABC ranking system. It makes this rather interesting
recommendation:
<blockquote>We recommend that the Government … decouple the ranking
of drugs on the basis of harm from the penalties for possession and
trafficking.</blockquote>
This is probably what was in Clarke’s mind when he ordered the
review. It’s a simple way out of a very real problem; the declared aim
of the ABC ranking within the MoD act is to give guidance for the
police and prosecutors for the relative dangers of drugs. That is
central to the MoD act and yet is so obviously not being undertaken
properly. As the report states:
<blockquote>It is perhaps not surprising that Professor Colin
Blakemore’s view of the classification system was that “It is
antiquated and reflects the prejudice and misconceptions of an era in
which drugs were placed in arbitrary categories with notable, often
illogical, consequences”</blockquote>
It’s hard to think what the penalties could be based on if not
relative harm though, but when a law is in this much mess the easy way
out is to scrap it and start again. If you want to keep the law what
would be required is the thinking up a whole new set of reasons
underpinning and justifying it, “moving the goal posts” is putting it
mildly. It would be unthinkable in any other context to scrap the whole
basis for the existence of a law in order to keep that law in place,
but perhaps prohibition is exempt from such logic.
About alcohol and tobacco the report recommends:
<blockquote>In our view, it would be unfeasible to expect a
penalty-linked classification system to include tobacco and alcohol but
there would be merit in including them in a more scientific scale,
decoupled from penalties, to give the public a better sense of the
relative harms involved.</blockquote>
This would be laughable if not so serious. The whole thing is in
such a mess it needs a total re-working but is (or was) the idea to
invent some new index of drug harm that didn’t relate to the harm
caused to the user by the drug? Would this new harm try to base itself
on the disruption to society caused by the trade in that drug? If so
the worms are virtually bursting out of the tin without it even being
opened because of course the idea of a drugs index “based on their
wider harm to society” as Clarke put it are clearly entwined with the
criminality caused by the prohibition laws. A huge chasm of a hole was
opening up and John Reid rammed the lid back on before it engulfed him.
It was far simpler to bury the whole messy idea and hope it would go
away, which it pretty well had done before the DEA came along and dug
it all up again.
If they can prove their point that the government has been aware
that the MoD act is not fit for purpose quite what it would mean for
the future of prohibition is uncertain, but something would have to be
sorted out and it’s hard to see how prosecutions under the act could
continue.
The original aims of the Single convention seemed so simple, but in
truth it’s a minefield. Drugs policy is slowly being revealed as being
based on little more than arbitrary decisions with little or no basis
in hard fact. It’s not news to us of course and we’ve always suspected
others knew it as well. On the other hand perhaps if they hadn’t
included cannabis in all this drugs policy might never have become the
huge social problem it is today
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sunshine band



Posts : 2
Join date : 2010-03-14

PostSubject: Re: Government forced by DEA FoI Victory to release consultation document on drug classification system   Mon Mar 15, 2010 4:36 am

Here is the judgment:

Reference: FS50198230
1
Freedom of Information Act 2000 (Section 50)
Decision Notice
Date: 9 March 2010
Public Authority: The Home Office
Address: 2 Marsham Street
London
SW1P 4DF
Summary
The complainant requested a copy of a draft consultation document on a
review of the UK’s drugs classification system. The Home Office claimed that
the report was exempt from disclosure by virtue of sections 35(1)(a) and (b)
(formulation of government policy and disclosure of Ministerial
communications). During the course of the Commissioner’s investigation the
Home Office released some information that it considered fell within the
scope of the request, cited section 21(1) in relation to information which it
considered was accessible to the complainant by other means and confirmed
that it was citing section 35(1)(a) in relation to the remaining withheld
information. The Commissioner found that the exemption at section 21 is not
engaged. He found that the exemption at section 35 is engaged, but that the
public interest in maintaining the exemption does not outweigh that in
disclosing it. Therefore, he orders disclosure of the draft consultation
document.
The Commissioner’s Role
1. The Commissioner’s duty is to decide whether a request for information
made to a public authority has been dealt with in accordance with the
requirements of Part 1 of the Freedom of Information Act 2000 (the
‘Act’). This Notice sets out his decision.
Reference: FS50198230
2
Background
2. The Misuse of Drugs Act 1971 (amended through the Criminal Justice
2003 Act, which came into effect in 2004) divides controlled drugs into
three classes depending on the degree of harm deemed attributable to
each drug. These classes (A, B and C) carry different levels of penalty
for possession and dealing.
3. The classification of individual drugs can change over time if new
evidence shows that they pose a greater or lesser risk to society. The
Home Secretary decides what harm rating individual drugs should be
given, based on evidence provided by advisers who assess the drugs
according to the problems they cause to society and users.
4. On 19 January 2006, Charles Clarke, the then Home Secretary,
announced the future publication of ‘a consultation paper with
suggestions for a review of the drug classification system’.
5. On 13 October 2006, John Reid, then Home Secretary, announced that
the Government would not be proceeding with the review.
The Request
6. The complainant wrote to the Home Office on 26 March 2007
requesting:
‘comprehensive information about the reasons and reasoning process
that the SSHD [the Home Secretary] undertook in reaching his decision
in Command Paper 6941, October 13 2006, at page 5, paragraph 12,
in which it was said:
“Government has decided not to pursue a review of the classification
system at this time”.
Also, I seek disclosure of a document, specifically “the consultation
document which is in draft form in the department”’. It was referred to
by Vernon Coaker MP in his submission to the 2005 – 2006 House of
Commons Science and Technology Committee on 14 June 2006 in
answer to question 1205 and published in HC 1031 (2006)’.
7. The Home Office responded on 2 July 2007. In its response, the Home
Office told the complainant about the factors the Government had
taken into consideration in deciding not to proceed with the review. It
also confirmed that it held the requested information but that it was
Reference: FS50198230
3
exempt from disclosure by virtue of sections 35(1)(a) and (b)
(formulation of government policy and Ministerial communications).
8. The complainant requested an internal review on 4 February 2008. The
Commissioner notes that the complainant explained to the Home Office
the reason for the delay in making his request for an internal review.
9. The Home Office wrote to the complainant on 12 March 2008 with the
outcome of its internal review. In its correspondence, it upheld its
decision to cite section 35(1)(a). No reference was made to section
35(1)(b).
The Investigation
Scope of the case
10. On 8 April 2008 the complainant contacted the Commissioner to
complain about the way his request for information had been handled.
The complainant specifically asked the Commissioner to consider the
following point:
• that ensuring that the drug classification system is fit for purpose is
in the public interest.
11. In his correspondence, the complainant specifically requested the
Commissioner to focus his investigation on the matter of whether or
not the Home Office was correct to refuse to disclose the draft
consultation document.
12. During the course of the Commissioner’s investigation, the Home Office
released some information that it considered fell within the scope of
the request, cited section 21(1) in relation to information which it
considered was accessible to the complainant by other means and
confirmed that it was citing section 35(1)(a) in relation to the
remaining withheld information.
13. The complainant contacted the Commissioner on 24 July 2009. In this
correspondence he advised that his request was not satisfied by the
Home Office’s disclosure as it ‘referred to information already in the
public domain’. He explained that the disclosure made no reference to
the proposals contained within the requested document, nor the
reasoning behind the consultation proposals.
Reference: FS50198230
4
14. The Commissioner has focussed his investigation on whether or not the
Home Office correctly cited sections 21(1) and 35(1)(a) in relation to
the withheld elements of the draft consultation document.
Chronology
15. The Commissioner wrote to the Home Office on 17 April 2009 asking it
to confirm the exemptions it was claiming and to provide further
information about its decision to cite the exemptions and how it
conducted the public interest test.
16. The Home Office provided the Commissioner with a copy of the
withheld information on 12 May 2009 and a response to his questions
on 9 June 2009. In this correspondence, the Home Office advised the
Commissioner that it was citing the exemptions in sections 21
(information accessible to applicant by other means) and 35(1)(a)
(formulation of government policy) in relation to the draft consultation
document.
17. Following the Commissioner’s intervention, the Home Office disclosed
some information to the complainant which it considered fell within the
scope of his request and referred the complainant to information which
it now considered was in the public domain.
Analysis
Exemptions
Section 21 Information accessible to applicant by other means
18. Section 21 states:
‘(1) Information which is reasonably accessible to the applicant
otherwise than under section 1 is exempt information.
(2) For the purposes of subsection (1)—
(a) information may be reasonably accessible to the applicant
even though it is accessible only on payment, and
(b) information is to be taken to be reasonably accessible to the
applicant if it is information which the public authority or any
other person is obliged by or under any enactment to
communicate (otherwise than by making the information
Reference: FS50198230
5
available for inspection) to members of the public on request,
whether free of charge or on payment.
(3) For the purposes of subsection (1), information which is held by a
public authority and does not fall within subsection (2)(b) is not to be
regarded as reasonably accessible to the applicant merely because the
information is available from the public authority itself on request,
unless the information is made available in accordance with the
authority's publication scheme and any payment required is specified
in, or determined in accordance with, the scheme’.
19. During the course of the Commissioner’s investigation, the Home Office
told the Commissioner that:
‘On reflection, we recognise that the document contains some factual
information which is or was in effect already in the public domain and
to which we therefore propose to apply the exemption in section 21
(information accessible to applicant by other means)’.
20. Although not specifically stated, the Commissioner understands the
Home Office is citing section 21(1) of the Act.
21. In relation to the information withheld under section 21(1), the Home
Office advised:
‘We propose to provide [the complainant] with a copy of Annexes A, B
and C to the document, plus the four-page section entitled
‘International comparisons’ (paragraphs 8.1 – 8.15). So far as the rest
of the material not covered by section 35(1)(a) is concerned, we
propose to explain to [the complainant] in general terms what
information the draft document draws upon and provide links to
sources on the internet where he can find it’.
22. The Commissioner acknowledges that the Home Office wrote to the
complainant on 2 July 2009. In its correspondence the Home Office
explained that, having reviewed its original decision, it now considered
that some of the information originally withheld is accessible to him. It
described the relevant parts of the document being withheld under
section 21(1) as consisting of ‘factual information about drugs and
drug classification at the time the draft was written’.
23. The Home Office provided the complainant with details of how to
access the relevant source documents online and explained how, in its
view, they related to the information contained within the draft
consultation document. The Home Office also disclosed some
information from the draft consultation document itself, together with a
number of its annexes.
Reference: FS50198230
6
Is the information reasonably accessible?
24. The Commissioner considers that, where information is available
elsewhere, it does not necessarily mean that it is ‘reasonably
accessible’ to the applicant. In his view, information is reasonably
accessible if the public authority:
• knows that the applicant has already found the information; or
• is able to direct the applicant precisely to the information.
25. In considering whether or not the Home Office is correct in claiming
that the withheld information is readily accessible to the complainant,
the Commissioner has first addressed the question of whether or not
the complainant has the necessary computer facilities to enable him to
access the links provided by the Home Office.
26. The Commissioner notes that he received a letter from the
complainant, written after the complainant had received the Home
Office’s correspondence which provided him with the links to the
information available online. The Commissioner notes that the
complainant made no reference to the fact that he was unable to
access the information online. The Commissioner is therefore satisfied
that, in this case, there is no evidence that the complainant did not
have access to the necessary computer facilities to enable him to
access the links provided.
27. In accordance with the Information Tribunal’s guidance in the case of
Ames v Cabinet Office (EA/2007/0110) the Commissioner considers
that it is reasonable to expect public authorities to point specifically to
the information it considers relevant to the request rather than, for
example, to say that there could be something of relevance on a
website.
28. In his view, this means the public authority has to be reasonably
specific to ensure the information is found without difficulty and not
hidden within a mass of other information. He has therefore considered
the extent to which the Home Office provided the complainant with a
precise link or some other direct reference to exactly where the
relevant information can be found.
29. In this respect, the Commissioner notes that when the Home Office
provided the complainant with links to a number of documents it
considered relevant to his request, it also provided an explanation as to
how, in its view, the information related to the draft consultation
paper.
Reference: FS50198230
7
30. The Commissioner notes the following level of explanation provided in
relation to the documents:
• ‘provides information about the historical background to the Misuse
of Drugs Act 1971, the Act’s classes and schedules of drugs and the
UN Conventions’;
• ‘provides information on the ABC classification system, its evidence
base and assessment of harm, the Misuse of Drugs Regulations,
international comparisons and the role of the Advisory Council on
the Misuse of Drugs’;
• ‘this provided further information on those author’s views of
assessment of harm which is relevant’; and
• ‘provides the Government’s view on the above issues in 2006,
including tobacco and alcohol, and contains a ‘Table of knowledge
inputs into classification system’ which was quoted in the draft
consultation document’.
31. The Commissioner accepts that the Home Office provided the
complainant with links to a substantial amount of information which it
considered relevant to his request. However, having considered the
Home Office’s explanations as to how it considers the information to be
relevant to the request and taking account of the length of some of the
documents involved, the Commissioner is not satisfied that the Home
Office provided the complainant with sufficiently precise directions to
enable him to establish where the requested information can actually
be found.
32. In the Commissioner’s view, as there is scope for the way in which
source material is, for example, used, presented or interpreted, it may
not accurately reflect the requested information and cannot therefore
be deemed to be the requested information itself.
33. Where links provide access to information that is directly quoted, he
accepts there is a stronger case for saying that it is the requested
information but he considers that, without knowing the context in
which quotes or statistics are used, they may not in themselves
accurately convey the message contained in the requested information.
34. Consequently, the Commissioner does not accept that the information
is reasonably accessible and therefore does not find the exemption
engaged. Accordingly, he requires the Home Office to disclose to the
complainant the information withheld under this section of the Act.
Section 35 – Formulation of government policy
35. Section 35(1) of the Act provides that:
Reference: FS50198230
8
‘Information held by a government department or by the Welsh
Assembly Government is exempt information if it relates to-
(a) the formulation or development of government policy,
(b) Ministerial communications,
(c) the provision of advice by any of the Law Officers or any
request for the provision of such advice, or
(d) the operation of any Ministerial private office.’
36. Although it originally applied section 35(1)(a) to the whole document,
the Home Office confirmed during the course of the Commissioner’s
investigation that it is only relying on section 35(1)(a) in relation to
specific paragraphs within the report.
37. Section 35 is a class based exemption, requiring no evidence of
prejudice. In order for the exemption to be engaged in this case, as the
Home Office is citing section 35(1)(a), the withheld information must,
as a matter of fact, relate to the formulation or development of
government policy. The Commissioner has therefore considered
whether or not the withheld information relates to the formulation or
development of government policy.
Does the information relate to the formulation or development of
government policy?
38. The Commissioner takes the view that the ‘formulation’ of government
policy comprises the early stages of the policy process where options
are generated and sorted, risks are identified, consultation occurs, and
recommendations or submissions are put to a Minister. ‘Development’
may go beyond this stage to the processes involved in improving or
altering already existing policy such as piloting, monitoring, reviewing,
analysing or recording the effects of existing policy. As a general
principle, however, he considers that government policy is about the
development of options and priorities for Ministers, who determine
which options should be translated into political action. It is unlikely to
be about purely operational or administrative matters, or to a policy
which has already been agreed or implemented.
39. The Commissioner is mindful of the fact that the term ‘government
policy’ is not defined in the Act. In this respect, the Home Office has
argued that, when applying section 35 of the Act, ‘it is therefore not
necessary that the information on the formulation or development of
Government policy relates to ultimately agreed policy. The exemption
Reference: FS50198230
9
can apply to early ideas that are discarded as policy is developed or
withdrawn’.
40. The Home Office has argued that although the decision not to proceed
with a review of the drug classification system was taken before the
request from the complainant was received, ‘drug strategy is in effect
always in development’. Accordingly, it considers that the ‘issues raised
in the draft consultation document are to that extent still relevant to
ongoing policy development in this area’.
41. The Home Office has argued that, in applying the exemption, it has
taken into account the Information Tribunal’s conclusions in DfES v the
Information Commissioner & the Evening Standard (EA/2006/0006).
The Commissioner notes that this was a case in which the Tribunal was
also considering information that had been withheld under section
35(1)(a).
42. The Tribunal’s approach in this case demonstrates that where the
majority of information relates to the formulation or development of
government policy then any associated or incidental information that
informs a policy debate should also be regarded as relating to the
section 35(1)(a) purpose.
43. In accordance with the Tribunal’s decision, the Commissioner considers
that the term ‘relates to’ in section 35(1) can safely be interpreted
broadly. Although this has the potential to capture a lot of information,
the fact that the exemption is qualified means that public authorities
are obliged to adopt a common sense approach, disclosing any
information which causes no, or no significant, harm to the public
interest.
44. Having reviewed the withheld information in this case, the
Commissioner accepts that the contents of the consultation paper
provide context and factual information about the subject of the UK’s
drug classification system. He also acknowledges that it contains what
the then Home Secretary, in his statement to the House of Commons
on 19 January 2006, described as ‘suggestions for the review of the
drug classification system’.
45. The Commissioner is satisfied that, by virtue of the withheld
information being a consultation paper whose purpose is the review of
an existing policy, namely the drug classification policy, it relates to the
formulation or development of government policy. He therefore finds
the exemption engaged.
46. Having found the exemption to be engaged, the Commissioner has
gone on to consider the public interest test.
Reference: FS50198230
10
Public interest arguments in favour of disclosing the requested
information
47. The Commissioner understands that, before changing a particular
policy, a public authority may consult on the issue in question. In this
respect, the Home Office website states:
‘Before changing policy, the Home Office publishes consultation papers.
These set out government proposals on a particular issue and ask for
responses from people and organisations with specialist knowledge in
that area. We also value responses from the general public.
The responses received help to ensure that any proposed changes to
the law will have a real, practical impact’.
48. The complainant has argued in favour of disclosure on the basis that
the requested information is a “draft consultation document” which was
to inform a public consultation on the need for a review of the drug
classification system’.
49. The Home Office acknowledges that:
‘There is a public interest in members of the public being able to assess
the quality of information and advice given to Ministers in relation to
the decisions taken, the manner in which they were made and their
proposed implementation or withdrawal. We also acknowledge that,
with increased public knowledge of the way government works, the
public contribution to the decision making process may in the future
become more effective and the process more broadly based’.
50. The Home Office told the complainant that it agrees that ‘disclosure
would also increase the public’s confidence in the system by which
legislation is considered’. It also said it was ‘mindful that the matter of
drug classification is of great interest to the public.’
51. Further, the Home Office acknowledges that ‘the drug classification
system remains a sensitive and ongoing issue’ and that in this respect,
disclosure ‘would allow a marginally more informed public debate’.
Public interest arguments in favour of maintaining the exemption
The safe space argument
52. The Home Office has advised the Commissioner that the draft
consultation document ‘represented a strand of thinking among some
Reference: FS50198230
11
officials at the time, but was abandoned at a fairly early stage of
development’.
53. Consequently, in support of its decision to withhold the requested
information, the Home Office has told the Commissioner that it
considers release ‘would reduce the quality of advice given to Ministers
if a proposal at an early stage of development, which more importantly
was subsequently abandoned, were to be made public’ and that ‘there
is a strong risk that the development of options and proposals will
become inhibited and over-cautious’ as a result of disclosure.
54. More generally, the Home Office has argued that:
‘Ministers and officials should be able to conduct rigorous and candid
risk assessments of their policies and programmes, including
considerations of the pros and cons, without fear of disclosure. The
prospect of disclosure could inhibit consideration and debate of the full
range of policy options’.
55. In this respect, it has argued that:
‘section 35 is statutory recognition of the public interest in allowing
ministers and their officials to have a clear space to debate matters
internally in the knowledge that these discussions will not be made
public’.
56. The Commissioner acknowledges the argument about the need for a
‘safe space’ to formulate policy, debate ‘live’ issues, and reach
decisions without being hindered by external comment and/or media
involvement.
57. In his view, this argument exists separately to, and regardless of, any
potential effect on the frankness and candour of policy debate that
might result from disclosure of information under the Act (the ‘chilling
effect’). Even if there was no suggestion that those involved in policy
development and formulation might be less frank and candid in putting
forward their views, in his view there would still be a need for a ‘safe
space’ for them to debate policy and reach decisions without being
hindered by external comment.
58. However, the Commissioner considers that an important determining
factor in relation to the ‘safe space’ argument will be whether a request
for such information is received whilst a ‘safe space’ in relation to that
particular policy-making process is still required. In this respect, he
notes that the Home Office has advised that the decision not to
proceed with a review of the drug classification system had been taken
by the time the complainant’s request for information was received.
Reference: FS50198230
12
Accordingly he considers that the argument in relation to the
importance of preserving safe space is substantially diminished.
The ‘chilling effect’ argument
59. Another possible public interest factor concerns the ‘chilling effect’
argument, that is, the possibility that disclosure of information will
reduce the frankness and consequently the quality of debate and
advice. Such arguments are described in Scotland Office v the
Information Commissioner (EA/2007/0070) as arguments about ‘the
risk to candour and boldness in the giving of advice which the threat of
future disclosure would cause’.
60. The Commissioner accepts that in principle the possibility of disclosure
of information may have a ‘chilling effect’ on discussions. However, he
also notes that the Information Tribunal has generally not given
significant weight to ‘chilling effect’ arguments. For example in the case
of the Foreign and Commonwealth Office v The Information
Commissioner (EA/2007/0047) the Tribunal indicated that:
‘we adopt two points of general principle which were expressed in the
decision in HM Treasury v the Information Commissioner
EA/2007/0001. These were first, that it was the passing into the law of
the FOIA that generated any chilling effect, no Civil Servant could
thereafter expect that all information affecting government decision
making would necessarily remain confidential…. Secondly, the Tribunal
could place some reliance in the courage and independence of Civil
Servants, especially senior ones, in continuing to give robust and
independent advice even in the face of a risk of publicity.’
61. In this case, the Home Office has argued that ‘release would reduce
the quality of advice given to Ministers if a proposal at an early stage of
development, which more importantly was subsequently abandoned,
were to be made public’’.
62. When considering the ‘chilling effect’, the Commissioner would expect
public authorities to provide convincing arguments for each kind of
impact being argued with reference to the particular disclosure being
considered.
63. In this case, he considers the argument put forward by the Home
Office to be general in nature and lacking in any specific evidence.
Accordingly, he considers that the weight that can properly be given to
the ‘chilling effect’ of disclosure is slight.
Reference: FS50198230
13
The accuracy argument
64. In support of its withholding of the requested information, the Home
Office told the complainant that it ‘did not consider it to be in the public
interest to release a document that was an early piece of work relating
to a review that did not take place. The document is no more than an
early draft and may possibly contain factual inaccuracies’.
65. The Commissioner notes that the Home Office variously describes the
information which is the subject of this request as being ‘a draft of a
proposed public consultation paper on a review of the UK’s drugs
classification system’ and ‘an unapproved draft consultation document’.
In view of this emphasis, the Commissioner is surprised that there
does not appear to be anything on the document itself indicating its
status as a draft version of the report.
66. During the course of the Commissioner’s investigation, the Home Office
clarified its argument that the information may not be accurate,
explaining that, as the draft was abandoned at an early stage, it was
not subject to final checking for factual accuracy.
67. It has also told the Commissioner that the draft consultation document
‘did not represent Government policy at the time or subsequently’.
68. In this respect, the Commissioner notes that the Act gives a right to
information held, not to information which is accurate. In his view, a
public authority is able, when responding to a request, to explain, for
example, that its response may contain some factual inaccuracies. He
therefore considers this argument irrelevant when considering the
public interest.
Balance of the public interest arguments
69. Section 2(2)(b) of the Act states that where an exemption is qualified,
information will only be exempt if the public interest in maintaining the
exemption outweighs the public interest in disclosing it. This means
that where a qualified exemption is engaged, the information must still
be disclosed unless the public interest in maintaining the exemption is
greater than the public interest in disclosing it. Where the public
interest factors are equally balanced, the presumption is in favour of
disclosure.
70. The Commissioner considers the withheld information in this case
comprises context and background, options and questions, and
administrative details.
Reference: FS50198230
14
71. In respect of the information which comprises context and background
the Commissioner acknowledges that it may contain statements of fact
and opinion. However, in this case, he considers that it is principally a
‘technical’ outline of the context and possibilities within which policy is
to be decided, rather than a substantive debate over potential policy
positions involving the exchange of views and advice. As such, the
Commissioner does not consider that the factors favouring
maintenance of the exemption are particularly strong in relation to
such information.
72. In respect of the information which comprises administrative details,
the Commissioner is not persuaded that the information is of such a
nature that its disclosure will have the detrimental effect described by
the Home Office.
73. The Commissioner accepts that there is other information which deals
with the pros and cons of future options for the classification of illegal
drugs as well as, understandably for a document of this nature,
consultation questions on the issue of drug classification.
74. The Home Office has argued that the draft as a whole and these
elements in particular ‘show one way in which policy might have been
developed but in the event was not’.
75. When considering the opposing public interest factors in this case, the
Commissioner considers the classification of illegal drugs is a matter of
significant public concern. He notes that decisions regarding changes in
classification, such as the reclassification of cannabis from class B to
class C in 2004, have been the subject of intense media debate. The
Commissioner also notes the level of media interest in the Science and
Technology Committee Report, a report which addressed the
classification of illegal drugs, published in the second half of 2006. He
therefore considers the issue in this case likely to have been a matter
of considerable public interest at the time of the request.
76. It is also the Commissioner’s view that there is a strong public interest
in understanding how government formulates policy and in ensuring
that there is well-informed public debate on this and other important
issues. Furthermore, he considers there is a public interest in
promoting transparency and participation.
77. Having balanced the opposing public interest factors in this case, the
Commissioner’s conclusion is that the public interest in maintaining the
exemption does not outweigh that in disclosing it and that the withheld
information should therefore be disclosed.
Reference: FS50198230
15
Procedural Requirements
Section 1 – General right of access
78. Section 1(1) states:
‘Any person making a request for information to a public authority is
entitled –
a) to be informed in writing by the public authority whether it
holds information of the description specified in the request,
and
b) if that is the case, to have that information communicated to
him’.
79. As the Commissioner considers that the withheld information should
have been disclosed, he finds the Home Office in breach of section
1(1)(b) of the Act in that it failed to provide disclosable information by
the time of the completion of the internal review.
Section 10 - Time for compliance
80. Section 10(1) of the Act provides that:
‘Subject to subsections (2) and (3), a public authority must comply
with section 1(1) promptly and in any event not later than the
twentieth working day following the date of receipt.’
81. In this case, the complainant made his request for information on 26
March 2007 but the Home Office did not issue its refusal notice until 2
July 2007. In failing to confirm to the complainant that it held
information falling within the request within the statutory timescale,
the Commissioner finds the Home Office in breach of section 10(1) of
the Act. It also breached section 10(1) in failing to disclose information
that was not exempt within this statutory time limit.
Section 17 – Refusal of request
82. Section 17(1) provides that:
‘A public authority which, in relation to any request for information, is
to any extent relying on a claim that any provision of Part II relating to
the duty to confirm or deny is relevant to the request or on a claim that
information is exempt information must, within the time for complying
with section 1(1), give the applicant a notice which -
(a) states that fact,
Reference: FS50198230
16
(b) specifies the exemption in question, and
(c) states (if that would not otherwise be apparent) why the
exemption applies’.
83. The Commissioner notes that, in taking more than 60 working days to
issue its refusal notice, the Home Office was clearly in breach of the
statutory timescale, and therefore breached section 17(1) of the Act.
84. The Commissioner also considers the Home Office failed to specify in
sufficient detail why each exemption it was citing applied. The
Commissioner has therefore concluded that the Home Office breached
section 17(1)(c) of the Act in failing to supply a Notice compliant with
the requirements of that section within 20 working days.
The Decision
85. The Commissioner’s decision is that the public authority did not deal
with the request for information in accordance with the Act:
• it breached section 1(1)(b) by not providing the complainant with
the requested information wrongly withheld under sections 21
and 35 by the time of the completion of the internal review;
• it breached section 10(1) by not confirming to the complainant
within the statutory timescale that it held the requested
information;
• it also breached section 10(1) by failing to disclose wrongly
withheld information within the statutory timescale;
• it breached section 17(1) by not providing the complainant with a
valid refusal notice within the statutory timescale; and
• it breached section 17(1)(c) by failing to specify in sufficient
detail why the exemptions cited applied.
Steps Required
86. The Commissioner requires the public authority to take the following
steps to ensure compliance with the Act:
• disclose the information in the draft consultation document
withheld under sections 21 & 35.
87. The public authority must take the steps required by this notice within
35 calendar days of the date of this notice.
Reference: FS50198230
17
Failure to comply
88. Failure to comply with the steps described above may result in the
Commissioner making written certification of this fact to the High Court
(or the Court of Session in Scotland) pursuant to section 54 of the Act
and may be dealt with as a contempt of court.
Reference: FS50198230
18
Right of Appeal
89. Either party has the right to appeal against this Decision Notice to the
First-tier Tribunal (Information Rights). Information about the appeals
process may be obtained from:
First-tier Tribunal (Information Rights)
GRC & GRP Tribunals,
PO Box 9300,
Arnhem House,
31, Waterloo Way,
LEICESTER,
LE1 8DJ
Tel: 0845 600 0877
Fax: 0116 249 4253
Email: informationtribunal@tribunals.gsi.gov.uk.
Website: www.informationtribunal.gov.uk
If you wish to appeal against a decision notice, you can obtain
information on how to appeal along with the relevant forms from the
Information Tribunal website.
Any Notice of Appeal should be served on the Tribunal within 28
calendar days of the date on which this Decision Notice is served.
Dated the 9th day of March 2010
Signed ………………………………………………..
Gerrard Tracey
Assistant Commissioner
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Reference: FS50198230
19
Legal Annex
Information Accessible by other Means
Section 21(1) provides that –
“Information which is reasonably accessible to the applicant otherwise
than under section 1 is exempt information.”
Section 21(2) provides that –
“For the purposes of subsection (1)-
(a) information may be reasonably accessible to the applicant
even though it is accessible only on payment, and
(b) information is to be taken to be reasonably accessible to
the applicant if it is information which the public authority
or any other person is obliged by or under any enactment
to communicate (otherwise than by making the information
available for inspection) to members of the public on
request, whether free of charge or on payment.”
Section 21(3) provides that –
“For the purposes of subsection (1), information which is held by a
public authority and does not fall within subsection (2)(b) is not to be
regarded as reasonably accessible to the applicant merely because the
information is available from the public authority itself on request,
unless the information is made available in accordance with the
authority's publication scheme and any payment required is specified
in, or determined in accordance with, the scheme.”
Formulation of Government Policy
Section 35(1) provides that –
“Information held by a government department or by the National
Assembly for Wales is exempt information if it relates to-
(a) the formulation or development of government policy,
(b) Ministerial communications,
(c) the provision of advice by any of the Law Officers or any
request or the provision of such advice, or
(d) the operation of any Ministerial private office.
Section 35(2) provides that –
“Once a decision as to government policy has been taken, any
statistical information used to provide an informed background to the
taking of the decision is not to be regardedReference:
FS50198230
20
(a) for the purposes of subsection (1)(a), as relating to the
formulation or development of government policy, or
(b) for the purposes of subsection (1)(b), as relating to
Ministerial communications.”
Section 35(3) provides that –
“The duty to confirm or deny does not arise in relation to information
which is (or if it were held by the public authority would be) exempt
information by virtue of subsection (1).”
Section 35(4) provides that –
“In making any determination required by section 2(1)(b) or (2)(b) in
relation to information which is exempt information by virtue of
subsection (1)(a), regard shall be had to the particular public interest
in the disclosure of factual information which has been used, or is
intended to be used, to provide an informed background to decisiontaking.”
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Government forced by DEA FoI Victory to release consultation document on drug classification system
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