Chapter 2: Decision-making


However that is not to say that the case-by-case system is free from difficulties, and many who responded to our survey drew our attention to them – even those who supported the system.

First, the case-by-case system takes time. There are no firm rules by which to operate, and dealing with each case on its merits requires careful consideration of all the facts. It is less efficient in terms of resource than a rule-based system.

Secondly, there can be more room for what some see as “game-playing” by agencies. Not only does it enable them to buy time while they assess the facts; it can also enable them to respond that even though this type of information may have been released in the past, the facts on this occasion are different and justify a different result.

Thirdly, the case-by-case approach can lead to uncertainty. Agencies can find the decision whether or not to release very difficult, particularly if the officials charged with making the decision are inexperienced, or if they do not have access to in-house legal advice, or if the agency in question has handled few requests of this kind previously. There are no rules, and in some areas little guidance as to what they ought to do. Matters are exacerbated in the case of those withholding grounds which are expressed in broad and ill-defined language – the “free and frank” and “commercial interest” grounds are notable examples.39

Fourthly, since each case depends on its own facts, there is a risk that an agency might reach an idiosyncratic decision. If that happens there can sometimes be adverse consequences, in particular if it too readily releases information which might be commercially sensitive or of a private nature. One of the main concerns about the commercial withholding grounds is that some organisations whose commercial information is held by an agency think those grounds are sometimes not properly applied.

Fifthly and most importantly, a lack of rules and principles can lead to inconsistency. Some requesters commented on the ad hoc and inconsistent approaches taken by different agencies to similar questions and, sometimes, different interpretations between an agency and the Ombudsmen. Some respondents to our survey even believe that successive Ombudsmen have taken different approaches to the same matter over the years. This can make it difficult for agencies to be confident about the stance they should take on a particular occasion. Many agencies have, over time, developed their own consistent practices internally for dealing with frequently recurring requests, but the consistent practice of one agency may not be the same as that of another.

The uncertainty and variability which mark the present system can detrimentally affect both agencies and requesters. Agencies sometimes find it genuinely difficult to know how to handle a request, and requesters sometimes complain about delay and inconsistency of approach.

It was clear from the submissions to us that the agencies, even the great majority in support of the case-by-case system, would greatly welcome firmer guidance to assist their decision-making, and that requesters would welcome more consistency of outcome.

See chapters 3 and 5 respectively.