28 May 2020

Ombudsman Hearing Decisions 76 & 77 clarify FOI exemption for “free and frank” discussions

Two recent decisions on Freedom of Information (FOI) appeals by the Ombudsman have helped clarify when government’s internal discussions are protected from disclosure and when information around those matters should be released to the public.

The FOI Law, in section 20, creates an exemption to the general right of access to ensure that “the free and frank exchange of views for the purposes of deliberation” is not inhibited. This is intended to allow public officers to express opinions frankly for the purposes of aiding government’s decision making processes. It is a subject that has often been hotly contested in FOI appeals hearings over the years.

“The free and frank exchange of views exemption is not a blanket protection for anything discussed internally by government,” said Ombudsman Sandy Hermiston.  “The FOI Law clearly recognises the need for public authorities to conduct candid and thorough discussions out of the public eye when necessary, but it does not mean that anything communicated, decided or remotely connected to those discussions can be withheld.”

In Hearing 76, email conversations occurred between two members of the Civil Service Appeals Commission in preparation for a hearing. The members of the panel were acting in their official capacity and so therefore subject to FOI. However, the Ombudsman found the disclosure of those deliberative discussions would be likely to harm the frankness of future discussions and upheld the exemption.

In Hearing 77, the requested record showed the decisions of Cabinet regarding granting duty waivers to developers. This record contained no exchanges of viewpoints, only a general statement about the decisions that were made. It is unlikely the release of such a factual record would affect Cabinet’s ability to discuss matters freely in the future, so the record was ordered to be released.

“These two cases illustrate the dual role of FOI and the Ombudsman’s enforcement of it, first to hold government accountable for its actions, decisions and expenditures, and second to protect discussions during deliberations from public release if necessary,” said Ms. Hermiston.

For the full text of these rulings, please refer to the attachments on our website: https://ombudsman.ky/outcomes/decisions.