Out-Law News | 27 Feb 2008 | 2:02 pm | 2 min. read
The decision comes despite the fact that the FOI provides qualified exemptions which mean that documents about the formulation of Government policy and ministerial communications do not always have to be released.
The Cabinet Office has refused to release the documents because of these exemptions, but the Information Commissioner's Office (ICO) has said that the exemptions, contained in section 35 of the FOI Act, are qualified, and are subject to a public interest test.
"As section 35 is a qualified exemption, a blanket approach cannot be taken to justify the withholding of all information to which the exemption is engaged," said the decision notice produced by the ICO. "Rather, the analysis of the public interest must focus on the circumstances and context of the information in each case."
"In order for the section 35 exemption to be maintained, in all the circumstances of the case, the public interest in maintaining the exemption must outweigh that in the disclosure of the information," said the notice.
The FOI request relates to two cabinet meetings held between 7 and 17 March 2003 during which the opinion of the Attorney General on the legality of an invasion was discussed. The ICO said that the importance of such a decision and the need for transparency must take precedence.
"The Commissioner considers that a decision on whether to take military action against another country is so important, that accountability for such decision making is paramount," said the decision notice. "In this case, in respect of the public debate and controversy surrounding the decision to take military action in Iraq, the process by which the government reached its decision adds to the public interest in maximum transparency."
"This is reflected by, among other matters, the controversy surrounding the Attorney General’s legal advice on the legality of military action and the ministerial resignations which took place at that time," it said.
The Cabinet Office argued that the release of the minutes would undermine the confidentiality of Cabinet discussions and the concept of Cabinet collective responsibility, by which all members of Cabinet stand by its decision even if they had disagreed with it in discussions.
"In the Information Commissioner’s view the public interest in disclosing the Cabinet minutes in this particular case outweighs the public interest in withholding the information. He believes that disclosure of the information would allow the public to more fully understand this particular decision of the Cabinet," said an ICO statement.
The ICO said it had considered "the gravity and controversial nature of the subject matter; accountability of government decisions; transparency of decision making, [and] public participation in government decisions," the statement said.
Not all of the minutes would be released, though. The ICO said that it agreed with the Cabinet Office that some references in the minutes would have a detrimental effect on international relations. "He therefore concludes that in respect of these references the public interest in maintaining the exemptions does outweigh the public interest in disclosure," said the ICO.