ACE refuses to release ‘sensitive’ race and disability documents

Arts Council England has refused to publish the minutes of internal discussions about race and disability in the organisation due to their "frank" and "sensitive" nature.

Following a Freedom of Information (FOI) request from ArtsProfessional, the Information Commissioner's Office (ICO) investigated whether the minutes of ACE's Race and Disability Advisory Group should be released.

The ICO report concluded that the withheld information contains comments surrounding ACE's internal plans, processes and strategies, including "sensitive issues". The minutes also detail how ACE handles these matters, including those related to performance, training and financial management.

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The ICO said the detail of discussions during the meetings "touches on sensitive matters such as issues discussed by the respective groups, and ACE’s planning and practices regarding equality and inclusion". 

"Some of the matters discussed concern how the groups work, internal processes, planning, in other words matters that require internal reflection and organisational scrutiny," the ICO report states.

In refusing to release the information, ACE cited section 36 of the Freedom of Information Act – that disclosure of the documents would "prejudice the effective conduct of public affairs" by inhibiting the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation.

Minimal progress

Kevin Osborne, social entrepreneur and founder of MeWe360, a not-for-profit, Black-led creative hub that champions Black, Asian and minority ethnic entrepreneurs in the arts and creative industries, says that private discussions on race and disability are necessary and that publishing such conversations, in some cases, can be counter-productive. 

However, he believes the issue for ACE in the circumstances is that "trust in their ability to improve things is low given that they haven’t made any progress in decades".

"It’s their general [policy on] FOIs which I think is the issue," Osborne says. 

"If it is their default position to block [FOI requests], even for non-sensitive information or factual data then it’s hard to know, when they use it for potentially genuinely sensitive situations like conversations on race, if they are simply using it to mask ‘uncomfortable truths’ in order to avoid dealing with legitimate public scrutiny.

"To give it the latitude to have sensitive conversations in private ACE needs to build trust through meaningful target-based commitments to improve their performance on race and disability, including setting quotas for distribution of funds to ethnically diverse and disabled communities and committing to fund these groups equitably (in proportion to the population of these communities) by 2031. 

"They then need to produce transparent reports against such targets and commitments. It’s with these initial steps that ACE can rightfully earn the trust and goodwill of Black and disabled communities to have private discussions where necessary."

Osborne adds that ACE should work to the principle of releasing what information it can even when an FOI refusal is upheld, such as in this case, the subject matter discussed and the key questions and debates that were had, without disclosing the specific details of the conversations. 

"This would give important signals about the direction of travel and where ACE is in its internal discussions," Osborne says.

'Chilling effect'

The Information Commissioner's report states that the use of a section 36 exemption can only be signed off by a "qualified person", who, in the case of ACE, is the Chief Executive Darren Henley. 

It says that ACE explained that the role of the Race Advisory Group and the Disability Advisory Group is to take advice from members of these communities in order to improve and/or to be aware of their experience and the impact ACE may or could have through its 10-year strategy or programmes on these communities. 

The groups also provide a mutual support and collective voice for Black, Asian, Ethnically diverse communities, and the D/deaf, neurodiverse, and disabled within ACE. 

"The groups respectively create a space for ACE staff members of all levels to get together to enable dialogue and identify any issues or concerns regarding their experience as ACE employees," the report states 

"[This includes] discussions on racism, emerging issues and challenges faced by these communities and any resulting social injustice and inequality. 

"The minutes provide information on the topics discussed and internal dialogue, that is the free and frank discussion of matters that are sensitive in nature. The contents, ACE argues, represent an unrestrained exchange of opinions where it is implicit that there is a reasonable expectation that these exchanges will be afforded an enhanced degree of confidentiality."

ACE argued that disclosure of the documents would create a "chilling effect" inhibiting free and frank discussions in the future, and that the loss of frankness and candour would damage the quality of advice and deliberation and lead to poorer decision-making.

In upholding ACE's decision to refuse to publish the documents, the Information Commissioner said that public officials are expected to be impartial and robust when giving advice, and not easily deterred from expressing their views by the possibility of future disclosure, adding that it is also possible that "the threat of future disclosure could actually lead to better quality advice". 

"Nonetheless, the Commissioner accepts the opinion that disclosure of the requested information would be likely to lead to the inhibition set out by ACE," the report states.

ACE was contacted ahead of publication but declined to comment.