Ashfords Solicitors - Information Commissioner orders the release of the Cabinet minutes relating to the decision to take military action against Iraq

The matter ended up before the Information Commissioner, Richard Thomas, after an individual made a request for information to the Cabinet Office under the Act. The complainant asked to see minutes of meetings held between 7 to 17 March 2003 together with various other related documents relating to meetings which were held pending the decision to instigate military action against Iraq.

The Cabinet Office withheld the information the complainant had asked for on the grounds of section 35 (1)(a) and (b) of the Act. Section 35 of the Act is an exemption from the scope of the Act for the formulation of government policy. Section 35(1)(a) relates to information which relates to the formulation or development of government policy and section 35(1)(b) to Ministerial communications.

The Cabinet Office argued that it is vitally important for Ministers to be able to debate issues relating to public policy freely and in confidence when reaching a decision. Further, that if Ministers thought their decision making process would be revealed, that their ability to conduct full and frank discussions could be affected. The Cabinet Office argued that the release of the minutes would undermine the concept of cabinet collective responsibility, the constitutional convention that members of the cabinet must publicly support all government decisions made in cabinet, even if they disagree with them in private.

The complainant wrote to the Cabinet Office in January 2007 and asked the Cabinet Office to conduct a review of its decision. The individual referred to the strong public interest in the disclosure of the relevant minutes.

However, the Cabinet Office continued to refuse to disclose the documents and the complainant contacted the Commissioner to complain about the way in which his request for information had been handled. The Commissioner investigated the matter and came to the following conclusions:

Section 35 is a class based exemption which kicks into play where the information in question relates to the formulation of government policy or ministerial communications.

The information which the complainant was asking for fell within the sections 35 (1)(a) and (b) exemption under the Act.

However, the Commissioner stated that: "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. Rather, the analysis of the public interest must focus on the circumstances and context of the information in each case".

The Commissioner explained that in order for the section 35 exemption to apply, the public authority must consider whether the public interest lies in upholding the exemption or in disclosing the information depending on the circumstances of the particular case.

In the present case, the Commissioner considered that although there are a number of reasons why it might not be in the public interest to disclose the minutes, there were also several public interest factors which would favour disclosure. In this case, the Commissioner stated that "...a decision on whether to take military action against another country is so important, that accountability for such decision making is paramount".

To enable the public to understand the Cabinet's decision to instigate war in Iraq, the Commissioner believes that the disclosure of the minutes is necessary. The Commissioner referred to the public debate and controversy surrounding the decision to take military action in Iraq which merits transparency.

Therefore, although the section 35 exemption applied, it was necessary to look to the circumstances of the case and to consider whether it is in the public interest to maintain the exemption or to disclose the requested information.

In conclusion, the Cabinet Office had not dealt with the request for information correctly in accordance with the Act. The relevant cabinet minutes were ordered to be disclosed to the complainant.

However, certain parts of the minutes did not have to be disclosed to the complainant. Those parts of the minutes contained specific references which would have a detrimental effect on international relations if disclosed. The Commissioner concluded that these references could be excluded from disclosure as the balance was tipped in favour of maintaining the section 35 exemption in this area.

What lessons can be learned from this Decision Notice?

This is the first time that the Commissioner has ordered the release of cabinet minutes which traditionally were regarded as meriting special protection due to the principle of Cabinet collective responsibility. The Commissioner acknowledged the importance of enabling the Cabinet Office to discuss important and sensitive policy decisions freely and without inhibition but that the decision as to whether to take military action is so important that the public interest in disclosure was much greater.

The Decision Notice sees the Commissioner upholding principles of transparency and determining that it is in the public interest to enable the public to scrutinise the rationale behind decisions made by a public body. The Commissioner used words such as "accountability", "public debate" and "understanding of decisions" in the context of making the information available to the Public. He also reinforced the concept that section 35 is not an absolute exemption and that the public interest test must be applied when a decision whether or not to disclose is made.

The Decision Notice sees the Commissioner upholding the principles of transparency and ordering a public body to disclose its decision making process for scrutiny by the general public. Public bodies could do well to take this as a warning and to make sure discussions are held as if there was a member of the public in the room scrutinising the process by which decisions are made.

The Cabinet Office has 28 days to appeal the Decision Notice to the Information Tribunal, so for the moment it's a case of "Watch this space" to see whether or not it will choose to go down that road.

If you require any advice in relation to the Freedom of Information Act please contact a member of the Ashfords Commercial Contracts & Services team who will be pleased to assist.

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

20th June 2008

Key Contacts

Information Commissioner orders the release of the Cabinet minutes relating to the decision to take military action against Iraq

Introduction