Public interest test—the chilling effect and safe space
Produced in partnership with Kim Mayo of Essex County Council
Public interest test—the chilling effect and safe space

The following Public Law guidance note Produced in partnership with Kim Mayo of Essex County Council provides comprehensive and up to date legal information covering:

  • Public interest test—the chilling effect and safe space
  • What is chilling effect?
  • Application of safe space to the public interest test
  • In contrast
  • A safe space argument
  • Conclusion

Since the introduction of the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 (EIR 2004), SI 2004/3391, there have been arguments that their provisions have caused a chilling effect on the frank and open communications taking place within public authorities obliged to comply with them.

What is chilling effect?

Arguments of the chilling effect are normally put forward as part of the public interest considerations advanced under section 35 of the Freedom of Information Act 2000 (FIA 2000) (formulations of government policy etc) but could also be seen under FIA 2000, s 36 (prejudice to effective conduct of public affairs) and Environmental Information Regulations 2004 (EIR 2004), SI 2004/3391, reg 12(4)(e) (exceptions to the duty to disclose environmental information).

The arguments focus on the need to protect the internal deliberation and decision making process.

Public authorities have sought to argue that if they were obliged to disclose details of internal discussions it would inhibit the free and frank discussions necessary to advance the debate. This, it is suggested, would in turn damage the quality of advice provided and lead to a decline in the quality of decision making and policy development, whilst also impacting on the quality and willingness to commit advice and views to writing.

The tribunal has described these arguments as a ‘risk to candour and boldness in