Standing before the Information Tribunal

I attended my first Information Tribunal hearing this week. The case was heard on Wednesday 20th December 2006 to determine whether or not the Information Commissioner was correct in his decision to uphold the BBC’s refusal to release the minutes of meetings held in the wake of the Hutton report. The meetings resulted in the removal of both the BBC’s Chairman Gavyn Davies and Director General Greg Dyke and the release of an abject apology to the Government. I brought the case together with Guardian Newspapers.

Greg Dyke gave evidence in the morning, stating that while he did not believe the minutes of such meetings should be published routinely, these meetings were of such public importance that the public clearly had a right to know the reasoning behind the Governors’ decisions. Of most concern to the public, he said, was the allegation that the Governors had come under sustained pressure and bullying from Number 10. After the meeting on January 28 2004, the BBC’s acting chairman, Lord Ryder, “made this rather embarrassing” apology on behalf of the BBC to the government. “Someone clearly cleared the statement with Downing Street before it was made,” Mr Dyke told the Tribunal.

Listen to Greg Dyke speaking outside the Tribunal.

The Guardian covered the Tribunal in several news reports:

The Tribunal hearing comes almost two years after I made my initial request, and this is one of my ‘speedier’ case progressions. The BBC’s stated refusal for disclosing the minutes has been that it would hinder the governors from speaking freely and frankly in the future. I find it hard to believe that those in charge of a £4 billion public service would feel unable to voice their opinions if they knew they would be held to public scrutiny.

Suprisingly, the BBC did not present any evidence that the Governors actually felt that opening up their reasoning would inhibit them from making decisions in the future. There were no statements form the Governors, simply a one-page minute from the meeting where they decided to reject the FOIA request (this was presented to the tribunal in confidence). Another striking comment from the BBC’s counsel was that there was not public interest in ‘knowing the exact reasoning behind the Governor’s decisions’.

If the reasons for the Governors’ decision to sack Greg Dyke are sound, they should be able to withstand public scrutiny. As I so often hear from the government with it seeks to invade my privacy: If you have nothing to fear, you have nothing to hide. The same argument can be used against a public authority. In fact the argument is more effective as it involves a public body rather than a private individual. Can we assume, then, that the Board has something to hide? Do they fear their reasons will not stand up to public scrutiny? Were they not based on facts that can be justified?

If you’re interested in seeing more of arguments in this case you can read my Skeleton Argument, which was submitted to the Tribunal and also my statement which I read out at the hearing.

Some thoughts on attending a Tribunal.

The Information Tribunal generally meets at Procession House near Blackfriar’s Bridge on New Bridge Street. It is a modern building and the room where our case was heard had the look of an Ikea display room with its blond wood tables and white-washed walls. The appellants and the respondents sit at tables at the front of the room with solicitors from the BBC, Information Commissioner’s Office and Guardian behind. Behind them were tables for the audience. Facing us was a raised platform for the three members of the tribunal overhung with the Crown crest. At one end was a table for the clerk and at the other a table where witnesses sat while giving evidence. The room is not at all intimidating and the procedures are quite informal. The only nod to formal court procedure is that the audience rises as the tribunal members enter and leave the room.

Andrew Bartlett QC chaired the tribunal accompanied by two lay members: Gareth Jones and Anne Chaffey. I was rather surprised that the lay members did not speak directly to any of us throughout the entire day, but rather fielded their questions via Mr Bartlett. He seemed to have total control of the meeting and I would have liked to have heard more from the lay members. This hearing was unusual in that all parties (apart from my good self) were represented by legal counsel, and counsel of an eminent degree. The BBC had, apart from its own in-house litigation department, Monica Carrs-Frisk QC accompanied by a second lawyer; Timothy Pitt-Payne of 11 Kings Bench Walk represented the Information Commissioner, and the Guardian (perhaps feeling under pressure for high-level counsel of its own) hired Hugh Tomlinson QC from Matrix Chambers. As my case was conjoined with the Guardian, I fortunately had the advantage of Mr Tomlinson’s counsel. But what if I had been on my own? That would have been quite a daunting prospect, and I highlighted this to the Tribunal.

Evidence from witness was taken first: the BBC’s solicitor Jaron Lewis, the Guardian’s media editor Matt Wells who made the initial FOI request on behalf of the Guardian, and Greg Dyke. After that the parties each went through their argument starting with the Guardian, then myself, Mr Pitt-Payne, Ms Carrs-Frisk. After that, Mr Tomlinson and I had a ‘right to reply’ and respond to points raised by the other parties. At 4.45pm. the hearing ended and Mr Bartlett announced that we would have the Tribunal’s decision in writing in a few weeks.

Overall, it was a good experience though I do hold some reservations about the disparities that can develop in terms of legal representation. Private citizens are not entitled to legal aid at the Information Tribunal even if they are fighting for information in the public interest. Yet, public authorities always have access to public funds and so can always hire lawyers to fight cases even when they are fighting against public accountability!

4 Responses to “Standing before the Information Tribunal”

  1. peter whale says:

    I think that any communication between No 10 and the B.B.C. should be on public record especially if it is not parliamentary business.

  2. PCLP says:

    “If you have nothing to fear, you have nothing to hide. The same argument can be used against a public authority.”

    QFT

    Absolutely appalling behaviour.

  3. Rod says:

    Thank you for sharing your experiences of the tribunal.

    I have found out today that the Department of Health appealed, on 21st December, to the Information Tribunal against the decision notice of the Information Commissioner ruling that they must disclose the report by Sir William Wells into the NHS University. Although I have not seen a copy of the appeal I understand it argues that the Information Commissioner was wrong in his application of sections 33, 35(1)(a), 40(2) and 41 of the Freedom of Information Act 2000.

    This means that my case will now be going to the Information Tribunal & I’m worried as I’m no lawyer & don’t really have any idea what to expect.

    see http://www.rodspace.co.uk/blog/blogger.html over the last 2 years + for the full story & documents.

    Rod

  4. Roy Benford says:

    I attended as a member of the public the morning session on 4th January of the Tribunal case Department for Education and Skills
    v The Information Commissioner EA/2006/0006, an interesting experience. At one point during the department’s evidence, I was left with the impression that the core argument was “the right of civil servants to make policy in private before the minister ‘decides'”. But, it was just a passing view.

    There was also a comment by Mr Crowe, representing the department, asking for a ruling. It was difficult to hear from behind but it seemed that the Information Commissioner had introduced Section 40 and not the department. This has happened to me in my case against defra. It will be interesting to hear the outcome. My complaint is about defra’s refusal to the publish details of egg producers that correspond to the code on each egg. In my view, we have a right to know who produces the food we eat, see FS50089403.

    Rod, I am no lawyer either. I went to Procession House as part of my preparation to decided whether or not to appeal. I would recommend a visit. I went casually dressed, a suit would have blended in better.

    Roy

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