Department for Transport v The Information Commissioner

This appeal is against the Decision Notice IC-264425-B4X1 made on 12 April 2024 relating to the complainant’s request made to the DfT for information relating to the DfT’s decision to add and keep South Africa on the list of countries from which travel was severely restricted during the COVID-19 pandemic in 2021 (the “red list”) and its decision to ban flights from South Africa in November 2021.

During the COVID-19 pandemic the UK government managed the risk of new variants and overall case rates in the UK by introducing various travel restrictions. This involved a traffic light system, which categorised countries and territories into red, amber or green, based on risk levels. The system was implemented on 17 May 2021 to allow the safe and sustainable reopening of international travel following the national lockdown.

The JBC, in conjunction with PHE, produced risk assessments of specific countries and territories. The decision to rate a country or territory red, amber or green was then made by ministers who also took into account wider public health factors.

On 28 November 2021 a number of Southern African countries (including South Africa) were designated as ‘Schedule 3, Category 3 countries’ which meant travel to the UK from these countries was banned.

The traffic light system ended on 18 March 2022 and the last remaining travel restrictions were lifted at the end of April 2023.

Before making the information request, which is the subject of this appeal, the complainant made two previous requests to the DfT which were escalated as complaints to the IC under Section 50. Both of the earlier requests concerned the decision to place and keep South Africa on the red list and subsequently ban travel from it.

The first request, dated 19 September 2021, asked for “Access to the information used to classify South Africa as a red list country including all relevant data used and internal emails and meetings used to make this decision.”

The IC, in Decision Notice IC-136815-X0J9 dated 5 August 2022, upheld the DfT’s reliance on sections 35(1)(a) and (b) to withhold the information. This was because, at the time the request was made, the traffic light system for travel was ‘live’ government policy and the public interest favoured maintaining the exemption.

The second request, dated 8 April 2022, asked for the following: “I would like to know what information the DfT based its decision to add and keep South Africa on the travel red list in 2021. I would also like information on the banning of flights from the day day (sic) window in November 2021 from South Africa. What information was the decision based on? There are no longer an (sic) travel restrictions in the UK and the red list is no longer active government policy therefore there should be no issue with this request as it is historical.”

The IC in Decision Notice IC-I85106-S0R3 dated 10 February 2023 again upheld the DfT’s reliance on section 35(1)(a) to withhold the information, noting that the introduction of travel restrictions in relation to China on 30 December 2022 meant that the issue was once again live and there was therefore a need to protect the ‘safe space’ ministers require to make such decisions. The IC however noted that this was not a reintroduction of the traffic light system in place during the pandemic and that there would come a time when the chilling effect would decrease to the extent that it no longer outweighs the public interest in disclosure.

The complainant made the request with which this appeal is concerned to DfT on 23 July 2023, i.e. approximately 15 months after the request made in April 2022. The wording was very similar to the previous request: “I would like to know what information the DfT based its decision to add and keep South Africa on the travel red list in 2021. I would also like information on the banning of flights from the small window in November 2021 from South Africa. What information was the decision based on?”

The DfT responded on 17 September 2023, refusing to disclose the information and relying on the exemptions in sections 27(1)(a) and (c) and section 35(1)(b). Following a request for an internal review, the DfT notified the complainant on 16 October 2023 that it upheld its initial findings. The complainant contacted the IC on the same date to complain about how the DfT had handled his complaint.

In a Decision Notice IC-264425-B4X1 dated 12 April 2024 (the “Decision Notice”) the IC determined that:

Accordingly, the Decision Notice required the DfT to disclose the withheld information to the complainant.

The DfT appealed the IC’s decision to the Tribunal on 10 May 2024. The DfT set out in its grounds of appeal that it considered the IC had erred in the following ways:

The IC filed a response to the appeal on 18 October 2024. In relation to Ground 1, he maintained that the DfT has still not demonstrated that sections 27(1)(a) and/or (c) are engaged. He argued that the date for prejudice and the public interest should be the time at which the public authority should have responded to the request, which he took to be 18 August 2023. He said that there was no evidence of how disclosure of the specific contents of the withheld information as at 18 August 2023 would be likely to prejudice international relations. He went on to explain that how the withheld information does not cause any prejudice and, even if it did, this can be entirely mitigated.

In relation to Ground 2, he contended that as the exemption in 27(1)(a) and/or (c) is not engaged it was not necessary for the IC to consider the public interest in his Decision Notice. Even if he was wrong on this, he argued that there was no evidence to explain the public interest as at 18 August 2023. He stated that the withheld information illuminates the public interest factors of helping the public and travel industry understand the decision-making process at the time and contributing to the government’s wider transparency agenda.

In relation to Ground 3, the IC noted that section 35(1)(b) is a qualified rather than an absolute exemption. He said, quoting the IC’s guidance, that there is no form of presumption against disclosure of such information implicit in that exemption or that the public interest in maintaining the exemption under section 35(1)(b) is inherently weighty. The IC denied that any ‘safe space’ for free and frank discussion of views will be eroded by disclosure of the information; he said that the information was anodyne, non-controversial and the DfT has not shown any evidence of danger to the safe space at the relevant time. He concluded the DfT had failed to provide any compelling evidence to favour maintaining the exemption and mistakenly treated a qualified exemption like an absolute one.

The DfT responded to the IC’s Response on 8 November 2024. It made the following points:

The parties opted for paper determination of the appeal. The Tribunal is satisfied that it can properly determine the issues without a hearing within rule 32(1)(b) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended).

The Tribunal considered an OPEN bundle of documents (231 pages). In this decision we refer to page numbers of documents in the open bundle with the prefix OB.

The Tribunal also considered a CLOSED bundle of withheld documents (84 pages). This consisted of information, which was responsive to the complainant’s request, including the material withheld by the DfT pursuant to sections 27(1)(a) and (c) and/or 35(1)(b) of FOIA.

Prior to the hearing an application under rule 14 of the Tribunal Rules had been made as regards the withheld material and an order made that disclosure of the information contained in the closed bundle would defeat the purpose of the appeal. Both parties applied for their CLOSED skeleton arguments also to be withheld under Rule 14 because they contain references to the withheld material. The Tribunal grants this application, so that the CLOSED skeleton arguments filed by both parties shall remain CLOSED. The rule 14 orders have subsequently been amended to take account of further CLOSED material.

Section 1 FOIA creates a duty to disclose information held by public authorities. That duty exists whether that information is accurate or not; if it is held it is subject to the regime in FOIA albeit the accuracy of the information may be relevant to any balance of the public interests.

The duty to disclose information held by public authorities is subject to exemptions. There are two types of exemption: absolute and qualified. An exemption will be “qualified” where, if the exemption is engaged, the relevant public interests must be balanced to determine whether the public interest in maintaining the exemption outweighs the public interest in disclosure pursuant to section 2 FOIA. An absolute exemption will not require the balancing of the public interests. Both Sections 27 and 35 provide a qualified exemption so the tribunal must consider whether, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

Following the cases of R (Evans) v Attorney General [2015]UKSC 21 and Montague v The Information Commissioner and Department for International Trade [2022] UKUT 104 (AAC) and [2023]EWCA Civ 1278 it is clear that the Tribunal should apply the public interest balance at the date when the authority should have responded, not at the date of an internal review, and thus not at any later date such as where there is a later reliance on additional or different exemptions.

Section 27(1) provides:

“(1)

Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice

(a)

relations between the United Kingdom and any other State...

(c)

the interests of the United Kingdom abroad”

The exemption is prejudice based. ‘Would or would be likely to’ means that the prejudice is more probable than not or that there is a real and significant risk of prejudice. The public authority must show that there is some causative link between the potential disclosure and the prejudice and that the prejudice is real, actual or of substance. The harm must relate to the interests protected by the exemption.

Section 35 is intended to protect good government and preserves a space for the government to consider policy options in private. Section 35 (1) provides:

“(1)

Information held by a government department ... is exempt information if it relates to...

(b)

Ministerial communications.”

Section 35(2) provides:

“(2)

Once a decision as to government policy has been taken, any statistical information used to provide an informed background to the taking of the decision is not to be regarded - ... (b) for the purposes of subsection (1)(b) as relating to Ministerial communications.”

Section 35(5) defines “Ministerial communications”:

“Ministerial communications” means any communications

(a)

between Ministers of the Crown

(b)

between Northern Ireland Ministers, including Northern Ireland junior ministers; or

(c)

Between members of the Welsh Assembly Government,

and includes, in particular, proceedings of the Cabinet or of any committee of the Cabinet, proceedings of the Executive Committee of the Northern Ireland Assembly, and proceedings of the Cabinet of the Welsh Assembly government.”

Section 35(1) FOIA is not a prejudice-based exemption. Accordingly, it is not necessary for a public authority to demonstrate any prejudice arising from disclosure in order for the exemption to be engaged. The Upper Tribunal in Cabinet Office v IC and Morland [2018] UKUT 67 (AAC) made clear that the focus of s35(1) FOIA was "on the content of the requested information and not on the timing of the FOIA request in relation to any particular decision-making process. There is no requirement on the face of the legislation that the policy-making process must still be live in order for the qualified exemption to bite” (paragraph 29).

The IC has also published guidance on the application of s35(1(b) which states that public interest arguments under section 35(1)(b) should focus on protecting Ministerial unity and effectiveness and protecting Ministerial discussions and collective decision-making processes.

The Tribunal’s remit is governed by s.58 FOIA. This requires the Tribunal to consider whether the decision made by the IC is in accordance with the law or, where the IC’s decision involved exercising discretion, whether he should have exercised it differently. The Tribunal may receive evidence that was not before the IC and may make different findings of fact from the IC.

The issues for the Tribunal to consider are:

The application of the prejudice test in the context of Section 27 will often occur in the context of a risk of a detrimental effect, rather than quantifiable damage.

Although the concept of “prejudice” is not statutorily defined, the Tribunal held, applying section 27(1) in Gilby v Information Commissioner & the Foreign and Commonwealth Office (EA/2007/0071) at §23, that a risk of this type was sufficient: “prejudice can be real and of substance if it makes relations more difficult or calls for particular diplomatic response to contain or limit damage which would not otherwise have been necessary. We do not consider that prejudice necessarily requires demonstration of actual harm to the relevant interests in terms of quantifiable loss or damage. For example, in our view there would or could be prejudice to the interests of the UK abroad or the promotion of those interests if the consequence of disclosure was to expose those interests to the risk of an adverse reaction from the [Kingdom of Saudi Arabia (KSA)] or to make them vulnerable to such a reaction, notwithstanding that the precise reaction of the KSA would not be predictable either as a matter of probability or certainty. The prejudice would lie in the exposure and vulnerability to that risk. Similar considerations would apply to the effect on relations between the UK and the KSA”.

Risks to matters such as national security, defence and international relations are invariably areas about which the public authority will have much greater expertise than the Commissioner or the Tribunal, and weight should be given to the considered view of the public authority: APPGER v Information Commissioner & Ministry of Defence [2011] UKUT 153 (AAC); [2011] 2 Info LR 75 at §56:

“There are essentially two issues:

The case of Savic v Information Commissioner, Attorney General’s Office and Cabinet Office [2016] UKUT 535 (AAC) at §116, reiterated and approved that analysis. Also relevant is the case of R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] UKSC 60; [2015] AC 945, where Lord Neuberger observed at paragraph 75 that: “the Foreign Office is the best equipped organ of the state to assess the likely reactions of a volatile foreign government and people, and while it would be an overstatement to say that a domestic court is the worst, it is something of an understatement to say that it is less well-equipped to make such an assessment than the Foreign Office.” (See also paragraphs 46 and 70-71).

The Upper Tribunal in Savic also noted that it “must be remembered that what is relevant is an assessment of those reactions rather than the validity of the reasons for them looked at through ‘English or any other eyes’”: at paragraph 116.

The key evidence on which the DfT relies in relation to Ground 1 is the OPEN and CLOSED witness evidence of Simon Mustard, Director for East and Southern Africa within the FCDO.

In relation to the prejudice or harm which could arise from disclosure, in his OPEN statement, Mr Mustard says at paragraph 11 that the DfT’s position that sections 27(a) and/or (c) were engaged was based on information provided by the FCDO.

At paragraphs 25 and 26, Mr Mustard explains why the relationship with South Africa is particularly important in light of its G20 Presidency (from December 2024). Specifically, he highlights that a strong relationship is needed to successfully conclude ongoing negotiations on the Pandemic Accord, which is an international instrument to ensure the world is better prepared for future pandemics. He notes that these negotiations could continue until May 2025, after which there will likely be further negotiations to agree the details of the agreement.

Finally, in response to paragraphs 36-38 of the Decision Notice, Mr Mustard says that “the Requested Information has never been in the public domain. Related publicly available information setting out the methodology used by JBC and the types of data sources used to support decision making had previously been provided by DfT to the Requestor to assist in understanding the decision to place South Africa on the Red List in 2021.”.

The DfT also relies on OPEN and CLOSED statements from Ian Elston, Deputy Director for Airspace, Resilience and Connectivity at the DfT. In his OPEN statement, he relies on the evidence of the Chief Medical Officer for England, Dr Sir Christopher Whitty at the COVID-19 Inquiry that a future pandemic on the scale of Covid is a “certainty”. He concludes at paragraph 8 “this evidence shows that the Commissioner's statement that there is no prospect of a return to border health measures is not something we can say with confidence.”

The IC’s view is that he maintains that the DfT has still not demonstrated that 27 (1)(a) and (c) are engaged for two key reasons:

The DfT had failed to demonstrate the nature of the prejudice

If there is prejudice, the DfT could mitigate it entirely

The IC maintains that regardless of whether factors post-dating the Decision Noticeare taken into account, nothing in the evidence of Mr Mustard, Mr Elston or therequested information demonstrates real, actual or substantial prejudice to either theUK’s international relations or the interests of the UK abroad. The IC also maintainsthat any prejudice caused by the withheld information could be entirely mitigated byaccompanying the withheld information with an explanation or summary to put itinto context. The risk of disclosure is not real, actual or of substance. He notes thatvarious detailed complex slides and data sets were presented and explained in aseries of press conferences at 10 Downing Street. He says the DfT’s view that anexplanation would not be an effective solution ignores the possibility that some ofthe withheld information may already be in the public domain (possibly as a resultof the ongoing COVID-19 Inquiry).

The DfT’s position is that it considers the evidence of Mr Mustard provides compelling evidence of adverse prejudice to UK interests. The DfT says that an effect on the position of the country in question internationally on matters of policy may also adversely affect the UK. It says that the IC is incorrect to argue that the controversy in the country in question about travel restrictions at the time they were imposed was irrelevant because it predated the decision.

The DfT disagrees with the IC’s argument that any prejudice could be mitigated entirely.

The Tribunal considered the withheld documents in three groups. We identify thesedocuments at a high level because they are referred to in the OPEN material, butdiscuss their substance in the CLOSED decision. These groups were:

In relation to the Recommendations document and the JBC risk assessments, the Tribunal wassatisfied that if these documents were disclosed then this would or would be likelyto result in prejudice to the UK’s international relations and/or the UK’s interestsabroad. We were persuaded that this prejudice was real, actual or of substance interms of exposing UK interests to the risk of an adverse reaction or making themvulnerable to such a reaction. We agreed with the DfT that the prejudice would lie inthe exposure and vulnerability to that risk, including risk to effective informationsharing, relationship and collaboration between the UK and South Africa.

In reaching this view, we gave significant weight to the evidence of Mr Mustard because his evidence represents the view of the FCDO who are the government department best placed to evaluate what prejudice might be caused in practice. We explain more about our reasoning on this in our CLOSED decision.

For these reasons we considered that Section 27(1)(a) and (c) were engaged in relationto the Recommendations document and the JBC slides. We did not consider that theywere engaged in respect of the Actions and Decisions document so consider this inrelation to section 35 below.

As we found that that section 27(a) and/or (c) is engaged in relation to the Recommendations document and JBC risk assessments, we need to proceed to consider the public interest balancing test and whether the public interest weighs in favour of maintaining the exemption or disclosure. The key issue for the Tribunal to consider is whether, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. This includes:

In APPGER v ICO [2013] UKUT 0560 (AAC) the Upper Tribunal gave guidance on how the balancing exercise required by section 2(2)(b) of FOIA should be undertaken as follows: […] “the correct approach is to identify the actual harm or prejudice that the proposed disclosure would (or would be likely to or may) cause and the actual benefits its disclosure would (or would be likely to or may) confer or promote […] Such an approach requires an appropriately detailed identification, proof, explanation and examination of both (a) the harm or prejudice and (b) benefits that the proposed disclosure of the material in respect of which the […] exemption is claimed would (or would be likely to or may) cause or promote. Plainly that includes an identification of the relevant material and the circumstances in which it was provided to or obtained by the body claiming the […] exemption.” The Tribunal is satisfied that this approach is also appropriate when considering a Section 27 exemption.

The IC’s position is that he maintains that the DfT had not demonstrated any prejudice, so as the exemption is not engaged it was not necessary for the IC to consider the public interest test in the Decision Notice. The relevant time for considering prejudice is 18 August 2023.

This is disputed by the DfT, as discussed above.

In Annex A of its response to the complainant dated 17 September 2023, the DfT identifies the following factors in favour of maintaining the exemption:

The IC’s position is that he maintains that the DfT had not demonstrated any prejudice, so as the exemption is not engaged it was not necessary for the IC to consider the public interest test in the Decision Notice. The relevant time for considering prejudice is 18 August 2023.

In Annex A of its response to the complainant dated 17 September 2023, the DfT identifies the following factors in favour of disclosure:

The IC’s position is that he believes the withheld information illuminates these public interest issues. We considered both the factors in favour of disclosure and the factors in favour of maintaining the exemption. Whilst we accepted that there was some public interest in disclosure of the withheld material, we concluded that in all the circumstances the potential prejudice to the UK’s international relations and/or interests abroad weighed in favour of maintaining the exemption.

We considered both the factors in favour of disclosure and the factors in favour of maintaining the exemption. Whilst we accepted that there was some public interest in disclosure of the Recommendations document in particular, we concluded that in all the circumstances the potential prejudice to the UK’s international relations and/or interests abroad weighed in favour of maintaining the exemption.

We therefore allow the appeal in relation to Section 27(a) and (c) in relation the Recommendations document and JBC risk assessments. We substitute for the IC’s Decision Notice a further decision notice recording that these exemptions are engaged and that no further action or disclosure is required.

It is common ground between the parties that Section 35(1)(b) is engaged inrelation to the C19OC documentation, namely the Recommendations documentand Actions and Decisions document. Having decided that section 27 is engagedin relation to the Recommendations Document and that the public interest weighsin favour of maintaining the exemption, there is no need for us to consider thisdocument under section 35(1)(b). We therefore focus in this section on the Actionsand Decisions document.

The DfT’s position set out in the grounds of appeal is that in the Decision Notice, the IC failed to give any, or any proper, weight to the principle of collective responsibility, the need for a safe space for cabinet discussions and the potential chilling effect of disclosure.

It also said that the IC failed to take properly into account relevant information which is already in the public domain (including methodologies and data sources) which informed government decision making.

Again, the key issue for the Tribunal to consider is whether, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. This includes:

The Tribunal has previously decided that there is no inherent weight to the public interest in maintaining the exemption under section 35(1)(b) - see Scotland Office v Information Commissioner (EA/2007/0070, 8 August 2008).

Collective responsibility is described in paragraph 5.1 of the Ministerial Code of Conduct as follows “The principle of collective responsibility 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”. Paragraph 5.3 amplifies this further: “The internal process through which a decision has been made, or the level of committee by which it was taken, should not be disclosed. Neither should the individual views of ministers or advice provided by civil servants as part of that internal process be disclosed. Decisions reached by the cabinet or ministerial committees are binding on all members of the government. They are, however, normally announced and explained as the decision of the minister concerned”

However, not all information which falls within this exemption will automatically engage the convention of collective responsibility. In the case of Scotland Office v Information Commissioner (EA/2007/0070, 8 August 2008) the Tribunal made clear that: “not all information coming within the scope of section 35(1)(b) will bring the convention of collective Cabinet responsibility into play. Some communications may be completely anodyne or may deal with process rather than policy issues. Communications may also be purely for information purposes, such as when reports are circulated.”

It is important therefore to determine whether the information with which we are concerned is such that collective responsibility applies.

Cabinet minutes generally engage collective responsibility. For Cabinet minutes in particular, the public interest in preserving collective responsibility is always substantial, and disclosure of Cabinet minutes has rarely been ordered. For example, in Cabinet Office v Information Commissioner (EA/2010/0031, 13 September 2010) the Tribunal stated that “Cabinet minutes are always information of great sensitivity, which will usually outlive the particular administration, often by many years. The general interest in maintaining the exemption in respect of them is therefore always substantial. Disclosure within 30 years will very rarely be ordered.”

On the other hand, the Tribunal said in the same case: “There is always significant public interest in reading the impartial record of what was transacted in Cabinet, no matter what other accounts of it have reached the public domain. Where the usual interest in maintaining confidentiality has been significantly weakened, that interest may justify disclosure. The public interest in disclosure will be strengthened where the Cabinet meeting had a particular political or historical significance.”

The IC’s guidance states that once a policy decision has been finalised and the policy process is complete, the sensitivity of information relating to that policy generally starts to wane, and public interest arguments for protecting the policy process become weaker. If the request is made after the policy process is complete, that process can no longer be harmed.

In the case of DfES v Information Commissioner & the Evening Standard (EA/2006/0006, 19 February 2007), when considering the value of safe space in which to develop policy, the Tribunal said the following “Ministers and officials are entitled to time and space, … to hammer out policy by exploring safe and radical options alike, without the threat of lurid headlines depicting that which has been merely broached as agreed policy.” (paragraph 75(iv))

Over time the need for a safe space may diminish. The Tribunal said in DBERR v Information Commissioner and Friends of the Earth (EA/2007/0072, 29 April 2008): “This public interest is strongest at the early stages of policy formulation and development. The weight of this interest will diminish over time as policy becomes more certain and a decision as to policy is made public.” (paragraph 114). The IC’s guidance states that it does not follow that where an issue is still under active consideration the public interest always favours maintaining the exemption regardless of the sensitivity of the information.

In Department of Health v Information Commissioner (EA/2018/0001 and 0002, 22 February 2019) the Tribunal rejected the argument that where policy formulation or development was still live at the relevant time, the public interest balance must always come down in favour of non-disclosure in the absence of something akin to wrongdoing within government (paragraphs 113 to 117). This was upheld by the Upper Tribunal (Department of Health and Social Care v Information Commissioner, GIA/1552 and 1553/2019, 29 October 2020, paragraph 59).

The IC’s guidance explains that departments often argue that disclosure of discussions inhibits free and frank discussions in the future, and that the loss of frankness and candour damages the quality of advice and leads to poorer decision-making. This is known as the chilling effect.

However, this does not mean that the Tribunal should accept this without question. In Davies v IC and the Cabinet Office (GIA) [2019] UKUT 185 (AAC), 11 June 2019) the Upper Tribunal stated at paragraph 25 that: “There is a substantial body of case law which establishes that assertions of a “chilling effect” on provision of advice, exchange of views or effective conduct of affairs are to be treated with some caution." Nonetheless, chilling effect arguments cannot be dismissed out of hand and are likely to carry some weight in many section 35 cases: see Friends of the Earth v Information Commissioner & Export Credits Guarantee Department [2008] EWHC 638 at paragraph 38.

The IC's guidance says that if the policy in question is still live, arguments about a chilling effect on those ongoing policy discussions are likely to carry significant weight. Arguments about the effect on closely related live policies may also carry weight. However, once the policy in question is finalised, the arguments become more and more speculative as time passes. For example, see DfES v Information Commissioner & the Evening Standard (EA/2006/0006, 19 February 2007), and Scotland Office v Information Commissioner (EA/2007/0128, 5 August 2008).

The key evidence in relation to this point on which the DfT relies is the witness evidence of Mark Davies, Director of Strategy and Legislation within the Economic and Domestic Affairs Secretariat of the Cabinet Secretariat. In paragraph 19 of his OPEN witness statement, Mr Davies states that routine disclosure of Cabinet committee documents before they are transferred to the National Archives under the Public Records Act after 20 years would expose the content of Cabinet and Cabinet committee discussions to premature public scrutiny. He went on to say “This prejudices the convention of Cabinet Collective Responsibility in two ways. Firstly, it erodes the safe and private space that Ministers expect at Cabinet and Cabinet committee meetings, thereby impacting the quality of discussions within these fora. Secondly, release of information relating to ministerial discussions at Cabinet and its committees could erode the united front that Ministers are obliged to present to Parliament and the public”. He goes on to say at paragraph 20 “Any document which relates to or reveals the internal Cabinet or Cabinet committee discussions through which collective agreement has been reached engages the convention of Cabinet Collective Responsibility and the Government’s starting position when considering disclosure in any circumstance is that there is a very strong public interest in ensuring that they should remain confidential”.

In relation to the Actions and Decisions document arising from the meeting on 25November 2021, Mr Davies says at paragraph 40 and 41 that it is “akin to a high-level minute...It directly relates to, and reflects those discussions. The Actions and Decisions document is therefore highly illustrative of the discussions that took place at the...meeting, as they record a series of actions given by Ministers to various departments to take forward, giving an indication of the terms of discussion at the committee meeting itself. Taken in the round, it would be possible to infer the main features of ministerial discussions from this document. Individuals may reach what they consider to be approximations of the views of individual Ministers. While this does assume a level of motivated extrapolation from the information in the documents, speculation does occur in modern political discourse, for example the role of a particular Minister in collective discussions”.

At paragraph 43 Mr Davies says “if Ministers were of the opinion that details regarding their discussions at Cabinet and its committees would be subject to premature public scrutiny, the content and character of those discussions would change...although the disclosure of the requested material would not reveal direct ministerial disagreement in this instance, it would nonetheless contribute to a chilling effect.” He does however say at paragraph 45 “it is reasonable to infer the contributions of individual Ministers that resulted in particular actions or decisions being carried forwards. Regardless, public debate would focus not just on the collective decision for which Ministers were accountable, but also the individual positions of individual committee members, undermining the united front that Ministers are expected to maintain”.

When talking about the age of the documents, Mr Davies says at paragraph 47 “the risk of a chilling effect is significantly exacerbated in this instance by the proximity of the date of the initial Freedom of Information request, 23 July 2024, to the date of the discussions at the [C19OC] meeting of 25 November 2021...”

The fact that this document has been disclosed to the COVID-19 Inquiry is discussed by Mr Davies at paragraphs 53 onwards, noting that the Inquiry has not placed the material into the public domain at the present time. He concluded “There is a clear public interest in respecting the ongoing role of the Inquiry in providing scrutiny and accountability of Government decision making in connection with the Pandemic and it is for the Inquiry Chair to determine which materials to publish and when”.

The factors weighing in favour of maintaining the exemption identified by the DfT for Section 35(1)(b) in Annex A of its response to the complainant dated 17 September 2023 were as follows:

The IC’s position is that there is no inherent or automatic public interest in withholding information just because it falls within section 35(1)(b) and contents-based approach to applying the public interest test must be taken, considering the timing of the request, the age of the information, the circumstances at that time and the overall sensitivity of the information.

The factors weighing in favour of disclosure identified by the DfT for Section 35(1)(b) are the same as those for Section 27 – see paragraph 66 above.

The IC ‘s position set out in its Response is that public interest favours disclosure because:

The IC made the following additional points in his skeleton argument:

In essence, we considered that the Actions and Decisions document was a record ofthe decisions made by the C19OC at their meeting. It recorded the outcome of themeeting and decisions and while it does not identify individuals it inevitably linkedto the deliberations and decision-making process of those present at the meeting. Itcame close to being a minute of the meeting and we accordingly considered that thiswas the type of document which section 35(1)(b) was intended to protect, giving dueweight to the consideration of collective responsibility, the need for safe space andthe chilling effect which publication might have on future deliberations.

We recognised that there was some public interest in this from a transparency point of view, but we also noted that this material has been provided as part of the COVID-19 Inquiry, which has not yet made it public. The weight which we ought properly to give to the need for transparency in considering whether to disclose this document is in our view lessened because it falls within the ambit of the Inquiry, which is the public forum through which government’s decision making over COVID-19, including travel restrictions, can be properly evaluated and scrutinised. We therefore considered that the fact this information need could be served by other means was a relevant factor in weighing the public interest in this case.

In this case, the complainant’s original request was to understand the information on which the decision in relation to South Africa being added to and kept on the red listand imposition of a flight ban in November 2021. We considered that public understanding of these issues would not be further advanced by disclosure of this document, which records a list of decisions and actions, not the information on which the decisions in question was based. This reduced the weight which we gave to the public interest in favour of disclosure in this case.

We considered the factors in favour of disclosure and the factors in favour of maintaining the exemption, including the evidence on which we relied in reaching our decision on section 27 above, as the factors identified by the DfT in favour of disclosure under that exemption were the same here. In all the circumstances, we concluded that the public interest weighed in favour of maintaining the exemption. This is because we were satisfied that the convention of collective responsibility and need for a safe space for deliberation free from publication in the context of the decisions of a Cabinet committee (the C19OC) were more significant than the advance to public understanding and transparency which would be achieved by disclosure in this instance.

We therefore allow the appeal in relation to Section 35(1)(b) in relation to the Actionand Decisions document. We order that there should be a substituted decision noticewhich states that section 35(1)(b) is engaged in relation to the Action and Decisionsdocument. No further action is necessary because the other exemptions apply to allof the remaining withheld information.