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.
