The minutes of the Cabinet meetings at which it was decided to go to war in Iraq have resurfaced for consideration by the Tribunal. First time round, the Tribunal agreed with the Commissioner that the minutes should be released, but the final word went to Jack Straw, by means of a ministerial veto – which was not subject to a judicial review challenge – issued under section 53 FOIA.
The requester in that case subsequently sought a backdoor route to the minutes, by requesting them under FOIA from the ICO itself. He also sought “background papers which show the processes of thought behind the Information Commissioner’s conclusion that the Cabinet minutes in question should be disclosed”. The ICO did not hold the minutes themselves, but it did hold some handwritten notes made by the then Commissioner, Richard Thomas, and by an ICO caseworker when visiting the Cabinet Office to inspect the minutes. It also held a confidential annex to the Decision Notice, which fell within the veto. All of these he refused to disclose.
The usual FOIA complaints and appeals process ensued, with the Commissioner issuing a decision notice in respect of his own refusal, and then defending that notice before the Tribunal in Lamb v IC (EA/2009/0108).
The basis of the refusal was section 44 FOIA, which provides that information is exempt if its disclosure is “prohibited by or under any enactment”. The Commissioner relied for the latter on section 59 of the DPA, which says that the Commissioner may not disclose information he obtained under the auspices of the Act “unless the disclosure is made with lawful authority”, which arises where “having regard to the rights and freedoms or legitimate interests of any person, the disclosure is necessary in the public interest”.
As the Tribunal accepted, this is a much higher threshold than the usual public interest test under FOIA: under section 59, there is effectively a presumption against disclosure.
The Tribunal was satisfied that this information was “obtained from” the Cabinet Office, notwithstanding the Appellant’s challenge on that point.
It also agreed with the Commissioner’s application of section 59. Much of the Appellant’s argument turned on the importance of the material he sought. This, said the Tribunal, overlooked the point that the Commissioner had already decided in the Appellant’s favour concerning the Cabinet minutes which he sought. The Tribunal also commented that:
“It is no part of the freedom of information regime to provide a mechanism by which a party who prosecuted a successful complaint to the Information Commissioner in the past may have his or her winning margin reassessed in the light of events subsequent to the date of the original victory”.
The Tribunal did not comment on whether the mere existence of the veto gave rise to the engagement or effectiveness of section 59. Nor did it speculate as to the circumstances in which reliance on section 59 could be defeated – although the wording of that section clearly envisaged this prospect.