Increasingly guarded interactions
On 22 October, London’s Evening Standard reported that “Users of the heavily-congested Euston Road are set for six years of misery when it loses two lanes for work on the government’s new high-speed rail project”. Of course, regular readers of the Beleben blog will be aware that building HS2 would be extremely disruptive (much more disruptive than upgrading existing lines).
In October 2013, as part of an attempt to improve the public perceptions of the HS2 scheme, a government PR offensive emphasised the ‘fourteen years of disruption at weekends’ which would supposedly follow if existing lines were upgraded instead.
The government’s claim that not building HS2 would mean ‘years of rail chaos‘ received widespread media coverage, but was ridiculed on national television, and seems to have been unsuccessful in changing public opinion.
But what was the actual evidence behind the “14 years of disruption” claim? Since it was a cornerstone of the October 2013 PR offensive, one might have thought that the government, and Network Rail, would be eager to set out in detail all of the disruption involved in upgrading existing tracks.
However, it is plain to see that the opposite is the case.
[Network Rail response to freedom of information request about ‘HS2 strategic alternatives’]
Thank you for your email of 18th May 2015. You requested the following information:
‘The Strategic Alternatives to High Speed Two reports
do not give details of the cost estimation, or details of the rationale, for the individual interventions listed, or the breakdown of estimated disruption hours by intervention or worksite. I would like to request the information held on these topics.’
[…] Firstly, I would like to apologise for the delay in responding to your request, we do endeavour to respond to requests for information within the deadline of 20 working days, however in this instance we have failed to do so and we hope this has not caused any inconvenience to you.
I can confirm that we hold the information you have requested. However, this information is exempt from disclosure under section 36 of the FOIA.
Section 36 of the FOIA
Subsections of section 36 of the FOIA provide exemptions when, in the reasonable opinion of a ‘qualified person’, the disclosure of the information requested would or would be likely to inhibit the free and frank provision of advice (s36(2)(b)(i)) (s36(2)(b)(ii)); inhibit the free and frank exchange of views for the purposes of deliberation; and/or prejudice the effective conduct of public affairs (s36(2)(c)).
For Network Rail, the ‘qualified person’ is a Minister at the Department for Transport. I can confirm that the Minister has decided that disclosing the information you have requested engages all three of those subsections on the basis that disclosure would be likely to inhibit the free and frank provision of advice; inhibit the free and frank exchange of views for the purposes of deliberation; and prejudice the effective conduct of public affairs.
This is because the disclosure of the information through the FOI process is likely to make Network Rail’s experts increasingly guarded in future interactions with the Department for Transport (DfT) and the Government as a whole. This in turn would limit the range of advice available to the Department and the Government when making decisions in the future; restrict the number and quality of views available to the Government for its future deliberations; and fetter the capacity of the leading expert in the field to assist the Government.
It is important to note that section 36 of the FOIA is a qualified exemption meaning that in order to apply this exemption we must not only obtain the consent of a ‘qualified person’ but must also consider the harm that may occur if the information were released, as well as carrying out a public interest test. Our conclusions are set out below.
As previously explained, it is our view that disclosure of the information in question through the FOIA process is likely to limit the range of advice available to the Government when making decisions in the future; restrict the number and quality of views available to the Government for its future deliberations; and fetter the capacity of the leading expert in the field, Network Rail, to assist the Government.
Arguments in favour of disclosure
The public interest arguments in favour of disclosure are that it:
• would demonstrate the thoroughness of the Government’s decision making process and engender confidence that a polarising decision has been taken on the best possible evidence;
• would be likely to assist Network Rail (and by extension the Government) by making sure that advice and information supplied by us to the Government was of the highest possible standard, the prospect of disclosure through FOI acting as a motivation to strive for higher standards;
• would be likely to lead to greater public understanding of policy making increasing trust in policy decisions and engagement between citizens and the Government; and
• would inform the public about the process behind and justification for a proposed scheme which is a matter of national importance and significant public interest. This would allow for informed debate and the possibility of members of the public challenging decisions which affect their lives.
Arguments against disclosure
The public interest arguments against disclosure are:
• good Government requires experts, like Network Rail, to provide expert advice and information honestly and unflinchingly. Concerns that advice and guidance, which is frequently asked for at short notice and regularly requires a degree of speculation, would in all likelihood cause our experts to rein in their advice to only the least controversial views. This would restrict the advice and information at DfT and the Government’s disposal and would not serve the interests of good Government;
• it is our view that the public interest in increasing confidence in the Government’s decision making process; improving engagement between citizens and the Government; and fostering more informed public debate on HS2 has already been satisfied by the prior publication of the reports in question;
• a disclosure through the FOIA could lead to a reluctance on the part of Network Rail to keep thorough and accurate records of its decision making process through fear that any speculative or potentially contentious views would be subject to disclosure. This would mean that any potential review of decisions would be hindered and the rationale behind decisions would be obscured, neither of which is in the public interest; and
• the long term impact of lower quality advice being supplied to Government might create a reticence on the behalf of the Government to seek advice in the first place. The effect of which would be that expert advice relevant to the Government’s deliberations would not influence the decision making process thereby diminishing the quality of the Government’s decisions.
Having considered the public interest, our decision is to withhold the information. This is because the public interest in disclosure has, in large part, been satisfied by the previous publication of the requested reports. In addition to which there is a genuine danger that our experts would not feel at liberty to advise the Government as frankly and directly as they should, the impact of which would be that the Government was less well informed when making future policy decisions.
This represents a refusal of your request under section 36 of the FOIA.