Freedom of Information: Ministers are learning the lessons of secrecy

Appeals to the Information Tribunal are helping to open up Whitehall to public scrutiny. Robert Verkaik, Law Editor, untangles the most recent ruling

The Information Tribunal, the body that hears appeals over the refusal to disclose documents requested under the Freedom of Information Act, is at last baring its teeth.

Its decision to overrule the BBC and the Information Commissionerafterthewithholdingofminutestaken at the BBC governors' meeting to discuss the removal of Greg Dyke, the Director-General, has lessons for all those who are prepared to fight for access to secret information.

Mr Dyke, depending on which interpretation of the minutes one adopts, either fell on his sword or was forced out by the governors after Lord Hutton's criticism of the BBC's reporting of the Government's evidence for Iraq's possession of weapons of mass destruction.

While many journalists asked to see the minutes it was only The Guardian and the writer Heather Brooke who were prepared to argue their claim at the tribunal. To bolster their case they even managed to persuade the deposed Director-General himself to testify in favour of disclosure. Since Mr Dyke had been present at the governors' meeting on January 28 2004 his evidence appears to have been very persuasive. He told the tribunal:

Anyone involved in important and historic decisions such as those [that] were made in response to the Hutton Report would know that their deliberations would be matters of interest and importance which would, inevitably, be studied by others who were seeking to understand and analyse what had happened. For whatever reason the BBC, which was resisting disclosure, decided not to offer up a senior member of the governors to counter this argument. It proved a costly error of judgement.

In its decision the tribunal said it recognised the need to protect the role of the board of governors. And they reminded themselves that the public "owed a considerable debt of gratitude to those distinguished people who are willing to take on onerous responsibilities in public service, such as the governorship of the BBC". But, crucially, the tribunal chairman, Andrew Bartlett QC, observed: "No one has suggested that publication of the governors' deliberations would make it more difficult to find people to serve in that capacity." Others planning to persuade the tribunal of the merits of non-disclosure would do well to take note.

It's a point that has been quickly picked up by the Government in its attempt to block the release of written material recording ministerial and Whitehall discussions about the future funding of schools. On the face of it this appears to be a relatively innocuous request but ministers believe that there is much more at stake as the exemption being cited is one that relates to the formulation of government policy.

If they lose the case the floodgates may open for scores of pending requests that have been blocked on the grounds that their disclosure will inhibit the candid and frank exchange of ideas in the creation of policy.

So who has the Government wheeled out to defend its position? Step forward Andrew (now Lord) Turnbull, the former Cabinet Secretary who was last to the fore in the refusal to release the Attorney General's advice on the legality of the war with Iraq.