The Information Tribunal has overturned a decision of the Information Commissioner’s Office and ruled that the Cabinet Office is not required to disclose minutes of meetings in June and July 2020 at which policy decisions were taken to make mandatory the wearing of face masks in shops and on public transport.
It is a shame that, for a decision of some import, the judgment reads like a stream-of-consciousness draft, and that it is infused with unnecessary sarcasm at various points.
The ICO had determined that although the exemption at s35 FOIA (for information relating to the formulation of government policy) was engaged. He acknowledged the importance of a protected space for government decision-making, and of the principle of collective responsibility, but decided that the “exceptionally weighty” public interest favoured disclosure.
The Tribunal, however, via reasoning which is – frankly – very difficult to follow, appears to have focused on the issue of “accountability”, something that the requester had mentioned rather in passing in support of his request, but which was not a matter expressly mentioned in the ICO’s decision. Having fixed on this concept, the Tribunal appears to have decided that as those in government at the time have since been held accountable in various ways, there was diminished public interest in achieving accountability by way of disclosure of the requested information. The key passage is probably this (at 57):
In considering the context of this request there is a stark contrast between the salience and effectiveness of other multiple forms of accountability…and the value of the information sought – in contrast with the risk of harm to the functioning of government caused by its release disproportionate to any benefit.
I do not say the Tribunal has necessarily got this wrong, but I do say that this a FOIA case of some significance, and that it warranted a clearer judgment.
Whether the judgment is amenable to an appeal is not entirely clear, but it’s worth pointing out that the original requester was not a party to, and was not joined to, these proceedings, and so I do not believe he himself has a right of appeal to the Upper Tribunal, and one wonders whether the ICO will have the enthusiasm to do so, given the costs involved.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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