Cabinet Office v Information Commissioner

The devastating global pandemic known as Covid-19 first emerged in the city of Wuhan in December 2019, it spread rapidly causing many fatalities at first in China and then around the world. On March 11 2020 the WHO declared a global pandemic. The UK Government recognised that its previous attempts to prevent the spread to the UK had been ineffective and on 23 March 2020 imposed many restrictions to reduce the spread. Daily press conferences were broadcast in which Ministers, the Government’s Chief Scientist and Chief Medical Officer and others gave updates on the pandemic and the response to it. In June 2020 the Government’s central mechanism for handling the pandemic, the Covid -19 Strategy Committee chaired by the Prime Minister was formed. The scale of the calamity was such that the Prime Minister announced in May 2021 that there would be an independent public inquiry under the Inquiries Act 2005 to examine the UK’s response to and impact of the Covid-19 pandemic, and to learn lessons for the future. There is a duty to publish the report of the Inquiry. The chair (Lady Hallett) was announced in December 2021 final terms of reference were approved on 28 June 2022. The Inquiry has the power to compel the production of documents, order witnesses to appear and examine witnesses under oath. The Inquiry, began work on 4 October 2022 with preliminary sessions and the first full public hearing on 13 June 2023. The first hearings were on Module 1 of the Inquiry “Resilience and Preparedness”. On 3 October 2023 hearings for module two of the inquiry – “Decision-making and Political Governance” began. The former Prime Minister, Mr Johnson, gave evidence in December 2023.

On 1 November 2023, the Cabinet Office (“CO”) received a FOIA request for information in the following terms:

On 29 November the CO responded confirming that it held material within the scope of the request but refused to release it rely on the exemption in FOIA section 35(1)(b) – Ministerial communications. Following a request for an internal review in which the requestor argued:

The CO again refused on 28 February 2024 relying on a further exemption - FOIA section 21 – that some of the information was information accessible by other means (published on the Inquiry website) but this publication by the Inquiry was wholly exceptional and the need to protect ministerial communications in order to protect the candour and detail of future cabinet discussions remained and accordingly CO continued to withhold the information. The ICO investigated.

The report of the Inquiry on the first module, Resilience and Preparedness was published on 18 July 2024. At about that time the CO sent further information to the requestor having concluded that it was purely statistical. The Information Commissioner’s decision notice on the request was issued on 3 October 2024. The IC recognised the concerns of the CO noting (DN 39-40):

The IC directed the disclosure of various Action and Decision Documents, Committee papers and Cabinet committee agendas but did not order the disclosure of Cabinet Minutes. The DN stressed the importance of the information because of “the exceptional event of the pandemic”, finding on that basis that “the withheld information carries a legitimate and substantial public interest value and weight in terms of transparency”.

The CO appealed against that decision. The two grounds of the appeal were:

The CO argued that the Inquiry would substantially contribute to transparency. During the Inquiry witnesses were examined on their actions and advice as the decisions of government were scrutinised. As the Inquiry progressed in addition to the information in that oral evidence which reflected the contents of the documents requested, the Inquiry published Cabinet Minutes and agendas which were within the scope of the request. As the Inquiry progressed the CO notified the requester of the publication of those documents. In November 2025 the CO filed an amended grounds of appeal. The CO argued:

In resisting the appeal the IC noted that the relevant time for determining whether s21 applied (ie material was reasonably available) was the date at which the CO refused the request, accordingly the first ground of appeal was incorrect.

The IC maintained the weighty public interest in disclosure of information to the public concerning the Government’s handling of the pandemic and argued that he drew an appropriate line between disclosure of minutes which would reveal the specific contributions of individual Ministers and other information which would not have the same impact on the constitutional convention of Cabinet Collective Responsibility and so would be less likely to negatively impact the future handling of such emergencies. He had properly identified evaluated and weighed the public interest factors. He maintained the public interest in the specific disclosures he had ordered of Action and Decision Documents, Committee papers and Cabinet committee agendas.

Mark Davies, Director of Strategy and Legislation within the Economic and Domestic Affairs Secretariat of the Cabinet Secretariat gave evidence. He emphasised the unitary nature of Government and the key role of cabinet collective responsibility “If a Minister wishes to object openly to a Cabinet decision then the principle requires that they resign” He noted that the Ministerial code states ‘The principle of collective responsibility, save where it is explicitly set aside, requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached.” This in turn requires that the privacy of opinions expressed in Cabinet and ministerial committees, including in correspondence, should be maintained.

The issue was the extent to which disclosure ordered by the IC could in future affect the candour of contributions to discussion. If disclosure was ordered it could affect future discussions of sensitive issues. The fact of a comprehensive Inquiry and the Government’s rationale for setting it up spoke to the considerable public interest which was distinct from the fragmented piecemeal approach of disclosure in response to individual requests. The convention provided a safe space. The more sensitive the issue, the higher the stakes such as the case of the pandemic the the greater the need for frankness and for Ministers to behave professionally.

The tribunal considered the withheld material in closed session and explored its significance.

In submissions the CO emphasised the importance of Cabinet collective responsibility, that individual opinions and the process of decision-making should not be revealed, that the ICO had acknowledged that “disclosure resulting from the Inquiry does not alter the importance of the [CCR] convention in the context of disclosure under the FOIA” and that the existence of the Inquiry and disclosure through it diminished the value of parallel disclosure under FOIA.

Unless published by the Government Cabinet papers are normally kept for 20 years before they are publicly available. The decision of the Government to hold an Inquiry into the pandemic which was announced a year and a half after the first emergence of the virus in human populations meant that from May 2021 it was foreseen that the records of the Government’s response to the pandemic would be subject to public scrutiny long before the usual publication date, in addition to the scrutiny and challenge which had been possible through the significant daily disclosures and the scrutiny by Parliament during the course of the pandemic.

The jurisdiction of the tribunal to consider this challenge to the IC’s decision notice is set out in s58 of FOIA which provides:

The statutory wording is clear, the tribunal must decide whether

The IC therefore looks back at the actions of the public authority and (in this case) its decision not to release information. He is therefore required to consider the lawfulness of the public authority’s actions, at the time they were performed, similarly the tribunal reviews the decision of the IC of the lawfulness of the Cabinet Office’s refusal, at the time of that refusal. The decision of the Upper Tribunal in Montague v IC and DTI [2022] UKUT 104 (AAC), is clear binding authority consistent with the clear statutory wording.

The first ground of appeal must fail, the point of time to determine whether the specific material requested is “reasonably accessible to the applicant” (s21) is the time of the Cabinet Office’s refusal.

The second matter for the tribunal to determine is the balance of public interest between disclosure and withholding of the material. There is clearly some public interest in full disclosure of the material; however the extent of that interest is less than argued by the IC. There had, during the course of the pandemic, been considerable transparency and accountability as discussed above; in addition to the publication of information there had been prosecutions of Ministers and civil servants and Ministerial resignations as a result of their actions taken during the pandemic. The request was made a significant time after the events in question just as the information requested was starting to be the subject of detailed, public, forensic inquiry by Lady Hallett with the foreseeable publication of the significant information within the requested documents, if not the documents themselves within a similar timeframe to that which had elapsed since the documents were created. While the IC argued that the existence of the Inquiry with its separate legal basis and rules “were intrinsically of minimal relevance to the balance of public interest.” However that is a strange formulation of the question for the tribunal to consider since at the time of the request the future disclosure in the near term was already apprehended, the salami slicing of information about to be rigorously examined and disclosed was unlikely to be of value. On one side is the harm to Cabinet Collective Responsibility by disclosure of the documents identified by the IC for release which the tribunal is satisfied is a matter of substance and on the other side the massive disclosure coming out of the Inquiry, explaining in a structured and analytical fashion the decision-making of Government through the processes and disclosures of the Inquiry, including releasing documents as it proceeded and resulting in the publication of the modules of its report meeting the public interest in explaining how the pandemic was handled.

S21 is the first section within the part of the Act headed “Exempt Information”. Clearly there is no necessity for disclosure if the information is publicly available. The second provision of that part is s22 “Information intended for future publication”. This exemption within the statutory framework indicates that parliament envisaged circumstances where a request could be made for a document which was intended for publication and it would not be in the public interest for it to be disclosed (for example the Chancellor’s budget speech). Clearly this provision was not relied upon, it was not known which specific documents would be published by Lady Hallett; however the fact that substantive issues revealed by the requested documents would be ventilated by the Inquiry and help shape its Report is relevant to consideration of the public interest in disclosure given the length of time the documents had been in existence, the extent to which key aspects had been disclosed at the time they were created and the high probability that anything of substance would be revealed by the Report of the Inquiry.

Having considered the withheld material the tribunal is satisfied that the harm to Cabinet Collective Responsibility caused by such disclosure outweighs the interest in release of this information.