The Cabinet Office v The Information Commissioner [2026] UKFTT 918 (GRC)

[2026] UKFTT 00918 (GRC)

Case Reference: FT/EA/2025/0248

First-tier Tribunal

(General Regulatory Chamber)

Information Rights

Venue Heard at: Field House, London

Hearing Heard on: 18 &19 May 2026

Date 19 th June 2026

Before

JUDGE HARRIS

MEMBER SAUNDERS

MEMBER YATES

Between

THE CABINET OFFICEAppellant

THE INFORMATION COMMISSIONERRespondent

Christopher Knight KC & Christian Davies for Appellant

Eric Metcalfe for Respondent

Decision: The appeal is allowed

Substituted Decision Notice:

The Cabinet Office

IC-343849-T2Z6

1.The Cabinet Office was entitled, as at the point of responding to the complainant’s request, to rely on the exemption at FOIA section 35(1)(b) – information relating to ministerial communications - to withhold the requested information in its entirety and the public interest favours maintaining the exemption.

2.No further steps are required.

REASONS

Background to the appeal

[1]This appeal concerns a decision notice of the Information Commissioner (the “IC”) dated 6 June 2025, reference IC-343849-T2Z6 (the “Decision”). The Decision was in connection with a request for information made to the Cabinet Office (“CO”) by the complainant, Mr Joseph Lloyd, concerning documents for meetings of the Covid Operations Committee (“Covid-O”) in May 2020.

[2]On 15 September 2024, the complainant wrote to the CO and requested information in the following terms:

“Under the Freedom of Information Act 2000 I wish to see full copies of all minutes, agendas, action logs and briefing materials for the Covid Operations (Covid-O) Committee meetings held in May 2020. Please also include any other material that were handed out or received during the meetings, such as presentations, reports etc…”

[3]The CO responded to the request on 11 October 2024. It confirmed that it held information in scope of the request but refused to provide the information held in reliance on section 35(1)(b) (ministerial communications) of the Freedom of Information Act 2000 (“FOIA”).

[4]Following an internal review, the CO wrote to the complainant on 8 November 2024 upholding its initial decision.

[5]The complainant contacted the IC on 12 November 2024 to complain about the way their request for information had been handled. They advised “I believe that the CO was wrong to refuse my request under section 35 of the FOI act. I don’t accept their assertion that the disclosure of these records would hamper Ministers’ ability to [sic] sensitive topics as parts of the requested information (but not all) have already been made public through the COVID-19 inquiry and the Government’s response to COVID-19 has now ended.”

[6]On 6 June 2025, the IC issued the Decision, in which he determined that the exemption was engaged but that the public interest favours disclosure of the information. The IC required the CO within 30 calendar days to disclose the withheld information with any names of junior staff redacted under FOIA section 40 in accordance with the IC’s guidance. The material findings were as follows:a. The IC accepted that the withheld material related to ministerial communications and included information written on behalf of ministers. Consequently, the information engaged the exemption at s35(1)(b) FOIA (DN, para 20);

b. The IC accepted the importance of the convention of Cabinet collective responsibility (“the convention”) and the significant weight afforded to Ministers to engage in free and frank discussion. This was a significant factor in favour of maintaining the exemption at s35(1)(b) (para 35);

c. The fact that the Covid-19 Inquiry was on-going was also relevant. The IC’s role was “completely separate” from the Inquiry (para 36). Nor did the Inquiry’s disclosure of Cabinet material alter the weight to be given to the convention when balancing the public interest (para 37). The IC had taken into account whether the Government’s disclosures to the Inquiry meant that there was a “satisfactory amount of information” in the public domain, but he also considered that the merits of each FOIA request had to be evaluated separately (para 38);

d. The IC questioned whether disclosure of the withheld material would either undermine ministerial unity or effectiveness or result in less robust, well-considered or effective ministerial debates. The way that the requested information was recorded would not weaken the principle of collective responsibility nor would it amount to a precedent of any sort in subsequent cases (para 41);

e. Although there was a “strong and important public interest” in protecting the safe space for ministerial deliberation, the fact that the request post-dated the pandemic and the discussions in question “by several years” meant the weight to be given to chilling effect arguments was therefore reduced (para 42). The information sought was over four years old at the time of the request. The IC would not expect Ministers to be influenced by such rare circumstances as those resulting from the pandemic (para 43);

f. Although the public interest was finely balanced in this case, having assessed the content and sensitivity of the specific withheld information, the IC concluded that the legitimate and substantial public interest in transparency and accountability of the delivery of the Government’s response to the pandemic outweighed the importance of protecting the convention of Cabinet collective responsibility in this instance (para 44). The balance of the public interest therefore favoured the disclosure of the requested information, save that any names below the grade of Senior Civil Servant should be redacted (para 45). Abbreviations used in this decision “CO” means Cabinet Office, the Appellant “the convention” or “CCR” means the convention of Cabinet collective responsibility “Covid-O” means the Covid-19 Operations Committee, a committee of the Cabinet “the Decision” and “the Decision Notice” or “the DN” mean the IC’s decision dated 6 June 2025, reference IC-343849-T2Z6 “the Documents” means the Agenda, Committee Paper, the Chair’s Brief, the Actions and Decisions Document (ADD) and the Minute of Covid-O, being the withheld information in this appeal. “FOIA” means the Freedom of Information Act 2000. All references to sections are references to sections of this Act unless otherwise specified “FTT” means First-tier Tribunal “GOA” means grounds of appeal “IC” means the Information Commissioner, the Respondent “the Inquiry” means the UK Covid-19 Inquiry, chaired by Baroness Hallett and exercising the statutory powers of the Inquiries Act 2005 and formally established on 28 June 2022 “the 20-year rule” means the provision for transfer of records to the National Archives not later than 20 years after their creation under section 3(4) of the Public Records Act 1958 “UT” means the Upper Tribunal, Administrative Appeals Chamber The Appeal

[7]The CO appealed the Decision to the Tribunal on 4 July 2025. It contended that the IC was wrong to order disclosure of the Documents and that insufficient weight was given to the need to preserve the convention, including in all the circumstances of the Documents. It said that the IC failed to address the full range of factors established to be relevant to information which engages section 35(1)(b) and the principle of the confidentiality of Cabinet proceedings.

[8]In its Grounds of Appeal (“GOA”), in summary the CO raised the following points:a. The IC failed, with no or no sufficient explanation, in the DN to afford any weight to the fact that: i. The Documents were (and are) recent, and were being requested very substantially in advance of the point in time at which they could be expected to be disclosed to the public via the National Archives under the 20-year rule. ii. The particular policy being no longer ‘live’ by the time of the requests is only of limited relevance where the information engages the Cabinet confidentiality principle. iii. The Documents concerned collective decisions of the Government on matters of national policy, relevant to multiple departments, and did not concern the exercise of a power to determine particular cases.

b. Such matters as were considered by the IC in the DN were characterised wrongly, or given excessive weight in context. In particular: i. Whilst the DN referred to the convention, the IC failed to respect and reflect the significant weight which constitutional principle and the case requires to be given to the maintenance of the confidentiality of Cabinet proceedings. The IC wrongly concluded, without adequate explanation or evidence, that disclosure in this case would not have a detrimental impact on the functioning of the convention of collective responsibility, despite the CO’s detailed explanation of the negative impact that disclosure would have on the effective operation of the convention of collective responsibility. As a result, the IC failed to recognise the need to identify, and failed in fact to identify, a sufficiently exceptional justification to warrant disclosure of the Documents. ii. The IC gave excessive weight to the context of the Covid-19 pandemic. The DN fails to take account of the fact that: 1. the request asked for documents from specific Cabinet committee meetings taking place in May 2020, at a time when the virus was less prevalent than it had been at its height, and when restrictions were being eased; 2. the contents of the Documents shed little light on the substance of any key decisions taken during the pandemic beyond that which was already in the public domain at the time of the request; and 3. in any event, it is the very fact that Cabinet and its committees deal with the most significant policy issues of the day that makes the confidentiality of its proceedings so important.

[9]It is established that other forms of accountability for the decision in question are relevant as a matter of law: London Borough of Camden v Information Commissioner & Voyias (“Voyias”)

[2012] UKUT 190 (AAC)

at §18 per Judge Jacobs. Whilst the DN makes reference to the Inquiry and other forms of accountability, the IC erred by suggesting in §43 that there was limited transparency and accountability in relation to the Government’s response to the pandemic at the time of the request.

[10]The DN fails to give sufficient weight to the fact that specific accountability for the response to the pandemic is being provided through the Inquiry. Module 2 of the Inquiry’s terms of reference in particular was established to look specifically at Government decision-making, including relevant Ministerial discussions at Cabinet and in its committees, in documentary and witness evidence. In that exceptional context, documents protected by the convention of CCR, including the Documents which are the subject of this appeal, were provided to the Inquiry to consider whether they disclose relevant lines of enquiry. The Inquiry had at the time of the request (and indeed the date of the GOA):(a) not placed the Documents in the public domain; nor

(b) published any report addressing the relevant period or the relevant decisions. Insufficient weight was given in the DN to the ongoing role of the Inquiry in providing scrutiny and accountability of Government decision-making in connection with the pandemic, including it having access to relevant documents and being able to address such decision-making on a fully informed and holistic basis, in contrast to piecemeal disclosure under FOIA. a. The CO concluded that the public interest balance strongly favours maintenance of the exemption. The IC’s Response to the Appeal

[11]The IC filed a Response dated 7 October 2025 in which it responded to the CO’s GOA.

[12]It denied all the grounds set out in the GOA and, in summary, gave the following reasons:a. At the time of the request in September 2024, the information in question was nearly 4 ½ years old. In his DN, the IC rightly took account of the fact that the request “post-dated the pandemic and the Government decision making by several years” (para 42) and “the age of the information which was over four years old at the time of the request” (para 43). He was not obliged to conclude that the information was “recent” nor otherwise attach weight to the fact that it was not older. Still less was he required to note for the record that it was not yet required to be transferred to the National Archive under the 20-year rule.

b. It is well-established that the fact that a policy is no longer “live” is a relevant factor in assessing the balance of the public interest under s35(1): see e.g. Department of Health and Social Care v Information Commissioner

[2020] UKUT 299 (AAC)

per Farbey CP at para 30. The fact that Cabinet confidentiality is engaged is also a factor. One does not automatically negate or qualify the other, however, nor does the CO cite any authority to show that it does;

c. The CO claims that the IC erred by failing to note that the requested information “concerned collective decisions of the Government on matters of national policy, relevant to multiple Departments, and did not concern the exercise of a power to determine particular cases” (grounds, para 26(3)). One can just as easily make the point that there is a greater public interest in the disclosure of details of Government decision-making that has an impact across a range of departments, rather than just the exercise of a specific statutory power by a minister. Certainly, it is unlikely that the UT, in giving its example in Aitchison, was seeking to establish a rule of any kind.

d. In stating that the IC “failed to respect and reflect the significant weight which constitutional principle and the case law ... requires to be given to the maintenance of the confidentiality of Cabinet proceedings”, the CO overlooks or ignores the IC’s statements, including that: i. he “has repeatedly accepted and fully appreciated the importance of the convention of Cabinet collective responsibility” (DN, para 35); ii. his recognition that “there is a strong and important public interest in protecting this safe space” (para 42); and iii. he “understands the importance of the protection of the constitutional convention of Cabinet collective responsibility in its own right” (para 44).

e. The IC gave ample reasons for his conclusion that any detrimental impact that disclosure might cause would be outweighed by the benefits to public understanding of the Cabinet committee’s decisions in May 2020. In particular, having viewed the withheld material, he expressed doubt as to how its disclosure “would undermine Ministerial unity and effectiveness or result in less robust, well- considered or effective Ministerial debates in the way set out by the Cabinet Office”, having particular regard to “the way in which the information in scope is recorded and the content detailed there” (para 41). He also accepted that the public interest arguments regarding the chilling effect would have “some weight and relevance”, but that the “weight attributed to any detriment” would be “reduced” due to the age of the information sought (DN, para 42). The UT in Aitchison made clear that “the public interest is a matter for the judgment of the Commissioner or a tribunal in the light of the background facts” (para 75). The fact that the IC was not persuaded by the CO’s predictions as to the consequences of disclosure does not mean either that that evidence was not properly considered.

f. In response to the CO’s assertion that the IC“gave excessive weight to the context of the Covid-19 pandemic”, the IC was right to conclude that there was a “legitimate and substantial public interest in transparency and accountability of the delivery of the Government’s response to the pandemic as set out in the particular information requested” (DN, para 44);

[13]In relation to the CO arguing that the IC was wrong to find that at the time of the request, “there was limited transparency and accountability in respect of decision making and more general matters concerning the Government’s response to the pandemic” (DN, para 43), the IC was right to conclude that the specific point upon which information was sought by Mr Lloyd, i.e. the decisions of Covid-O in May 2020, had not been made public by the Inquiry. The CO’s Reply to the IC

[14]The CO replied briefly to the IC’s Response on 20 October 2025. This noted that on 15 August 2025, the Inquiry published the ADD document, which is one of the withheld Documents in this case. It argues that the publication of this document after the formal refusal of the request does not affect the application of the exemption or the balance of public interests at the point of replying to the request on or around 11 October 2024. It noted that if a request were now pursued for the same information, the CO would apply section 21 as the information is now in the public domain. The CO subsequently confirmed at the hearing that it sought a decision from the Tribunal on whether the ADD document had been properly withheld at the point of the CO replying to the request in October 2024.

(b) – Ministerial communications

[15]Section 35(1)(b) provides that “[i]nformation held by a government department ... isexempt information if it relates to ... Ministerial communications”.

[16]Section 35(1)(b) is a class-based exemption. Accordingly, it is not necessary for a publicauthority to demonstrate any prejudice arising from disclosure in order for the exemptionto be engaged. However, exempt information must also meet the public interest balancingtest under s2(2)(b) FOIA: see e.g. Office of Government Commerce v Information Commissioner

[2008] EWHC 737 (Admin)

per Stanley Burnton J at paras 75-79.

[17]In Cabinet Office v Information Commissioner & Aitchison

[2013] UKUT 526 (AAC)

, the Upper Tribunal at paragraph 68 cited with approval the IC’s earlier guidance that:

“the public interest in maintaining the convention of collective Cabinet responsibility may diminish with changes to the Cabinet, Government restructures or the formation of a new Parliament (a new Parliament is formed following a general election). This would be on the basis that there may be less potential harm (of the kind detailed above) from revealing that a Cabinet that no longer exists were in disagreement, than there might be in revealing that the current Cabinet has divergent views”

[18]The UT in that case also cited with approval the FTT’s conclusions of principle at paragraph 66:

“By reason of the convention of collective responsibility, 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 and then only in circumstances where it involves no apparent threat to the cohesive working of Cabinet government, whether now or in the future. Such circumstances may include the passage of time, whereby the ministers involved have left the public stage and they and their present and future successors know that such disclosure will not embarrass them during the critical phase of an active political career. Publication of memoirs and ministerial statements describing the meeting(s) concerned may weaken the case for withholding the information, especially where versions conflict, either factually (which is not the case here) or in their interpretation of what took place. The fact that the issues discussed in Cabinet have no continuing significance may weaken to a slight degree the interest in maintaining the exemption but the importance of the exemption is not dependent upon the nature of the issue which provoked debate. There is always a 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 has a particular political or historical significance, for example the discussion of the invasion of Iraq at the meeting under consideration in Cabinet Office v Information Commissioner (Lamb).”

[19]The IC’s guidance on s35(1)(b) recognises that CCR is a long-standing convention and “a central feature of our constitutional systemof government” (para 209). It goes on to state that: “The convention of collective responsibility incorporates elements of safe space and chilling effect already considered above. However, there is an additional unique element that carries additional weight: that Ministers need to present a united front in defending and promoting agreed positions. If disclosure undermines this united front by revealing details of diverging views, this undermines ongoing government unity and effectiveness. “

[20]The IC’s guidance goes on to state as follows:

“If collective responsibility arguments are relevant, they will always carry significant weight inthe public interest test because of the fundamental importance of the general constitutionalprinciple. This weight may be reduced to some extent if the individuals concerned are no longer politically active, if published memoirs or other public statements have already undermined confidentiality on the particular issue in question, or if there has been a significant passage of time. However, this does not mean that the publication of memoirs will always undermine the confidentiality of the full official record. It will always depend on all the circumstances of each individual case. Whether or not the issue is still ‘live’ will not reduce the public interest in maintainingcollective responsibility (although it will affect the weight of related safe space arguments). Thisis because the need to defend an agreed position will, by its very nature, continue to be relevantafter a decision has been taken, and because of the constitutional importance of maintaining thegeneral principle of collective responsibility for the sake of government unity.”

[21]The Ministerial Code and the Cabinet Manual also recognise that ministerial communications are subject to the provisions of FOIA. Paragraph 1.6 of the Ministerial Code, for instance, states that “Ministers are expected to observe the following principles ofministerial conduct” including: “a. The principle of collective responsibility applies to all government ministers;… d. Ministerial office requires candour and openness. Ministers should demand and welcome candid advice. They should be as open as possible with Parliament and the public, refusing to provide information only when disclosure would not be in the public interest which should be decided in accordance with the relevant statutes and the Freedom of Information Act 2000. Ministers should be open and candid with public inquiries”.

[22]Paragraphs 5.1 and 5.3 of the Ministerial Code expand on the principle of collective responsibility as follows:

“5.1 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. … 5.3 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…”

[23]This is expounded further at paragraphs4.1 to 4.4 of the Cabinet Manual, which read as follows: “4.1 Cabinet is the ultimate decision-making body of government. The purpose of Cabinet and its committees is to provide a framework for ministers to consider and make collective decisions on policy issues. Cabinet and its committees are established by convention but it is a matter for the incumbent government to determine the specific arrangements for collective decision- making.

4.2 The Cabinet system of government is based on the principle of collective responsibility. All government ministers are bound by the collective decisions of Cabinet, save where it is explicitly set aside, and carry joint responsibility for all the Government’s policies and decisions.

4.3 In practice, this means that a decision of Cabinet or one of its committees is binding on all members of the Government, regardless of whether they were present when the decision was taken or their personal views. Before a decision is made, ministers are given the opportunity to debate the issue, with a view to reaching an agreed position. It is for the Prime Minister, as chair of Cabinet, or the relevant Cabinet committee chair to summarise what the collective decision is, and this is recorded in the minutes by the Cabinet Secretariat.

4.4 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.’…” [OB/C225]

[24]The principle of candour and openness is repeated at paragraph 5.6 of the Cabinet Manual. Paragraph 11.18 of the Manual contemplates the possibility that Cabinet minutes may be disclosed pursuant to a FOIA request: “The proceedings of Cabinet and its committees are specifically identified in the FOI Act as falling within the exemption at section 35. This is a qualified exemption, meaning that the public interest needs to be considered in each case. As there is always a strong argument in favour of maintaining the privacy of such information, given the public interest in collective responsibility and the maintenance of the ability of ministers to debate and develop policy frankly and freely, the Government’s working assumption is that information relating to the proceedings of Cabinet and its committees should remain confidential. However, each case needs to be considered on its merits”[OB/C281]

[25]In Department for Education v Information Commissioner & Whitmey

[2018] UKUT 348 (AAC)

, a member of the public had asked the DfE following the 2015 General Election to disclose a letter written in 2014 from Lord Nash to the then-Deputy Prime Minister Nick Clegg. The DfE had argued that the letter was exempt under s35(1)(b) but the Commissioner took account of the timing of the request and the sensitivity of the information, including the fact that (para 28): “while Lord Nash remains in his position as Parliamentary Under Secretary of State for Schools, the recipients of the letter are no longer in government, a general election took place and a new government was in place by the date of the request. In effect therefore, a fundamental change in the decision-making mechanism had occurred in the interval between the date of the letter and the date of the request. “

[26]On appeal, the IC’s decision notice in that case was upheld by both the FTT and the UT, the latter noting that “[i]t should come as no surprise that Ministers discuss, disagree and make compromises” (para 20). At paragraph 13 of its decision, the UT also noted that the scope of the convention of Cabinet confidentiality and collective responsibility were altered by the enactment of FOIA:

“From then on it was qualified by the possibility that information might have to be disclosed. It no longer represented an absolute ideal, albeit one that was not perfectly maintained in practice. Now it was a qualified ideal that was liable to be displaced by the balance of public interests under FOIA. Although this regulated release restricts the scope of the convention of confidentiality, it better maintains it than the unregulated leaking, briefing and the like that Ministers and others engage in.”

[27]In relation to safe space arguments under s35 more generally, the UT in DEFRA v IC & Badger Trust (Information rights : Environmental information - general)

[2014] UKUT 526 (AAC)

held as follows: “51.… to the extent that there may be a need for a space to think in private concerning Departmental deliberations, no-one doubts that generally speaking the need to maintain that privacy diminishes over time. There have been suggestions in First-Tier Tribunals in the past that once a policy had been formulated and announced there could be no further public interest in withholding information from publication. We do not accept that (see OGC v Information Commissioner

[2010] QB 98

at paragraph 101). It all depends on the facts and circumstances of the individual case. .... 53. Put in the context of this case, our task is not to ask whether around about September 2012 DEFRA had a current need for a ‘space to think privately’. Rather, we must ask whether at that date the public interest in keeping the 2010 thinking private outweighed the public interest in its disclosure. It all depends on the facts and circumstances .... “

[28]In Department of Health and Social Care v Information Commissioner

[2020] UKUT 299 (AAC)

,the President of the Chamber, Farbey J, summarised the position as follows:28. The case law refers to the “chilling effect” on candour among officials that would be causedif internal discussions on the formulation and development of policy were not exempt frompublication. In any particular case, the chilling effect need not be proved by evidence(Department of Work and Pensions v Information Commissioner, JS and TC [2015]UKUT 0535 (AAC), para 13). The phrase “chilling effect” helps to express (in shorthand form)the objective of the exemption– which is to avoid inhibitions on imagination and innovation inthinking about public policy issues.

29. In different language, contained in the Commissioner’s published policy documents, it is inthe public interest that civil servants and officials involved in policy-making should have a “safespace” in which to do so. I accept that the free and uninhibited flow of ideas between civilservants plays an important part within the United Kingdom’s constitutional arrangements. Idid not understand this proposition to be in dispute.

30. The exemption relates only to the formulation and development of policy (which I shall in shorthand call “live policy” or “live policy-making”) as distinct from delivery of policy objectives and from implementation. The timing of any request for information is therefore important. The need for a safe space may be diminished or even superseded by the finalisation and publication of a policy”. The public interest balancing test

[29]This applies to section 35 as a qualified exemption.

[30]When determining whether or not the public interest test is met, the Tribunal’s task 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. This requires an appropriately detailed identification, proof, explanation and examination of both(a) the harm or prejudice, and

(b) benefits that the proposed disclosure would (or would be likely to or may) cause or promote: APPGER v IC

[2013] UKUT 560

at [74]-[76] and [146]-[152].

[31]In some cases, the circumstances of the case may(a) reduce or eliminate the value or policy in one of the interests or

(b) enhance that value or policy in the other. The third step is for the tribunal to set out its analysis and explain why it struck the balance as it did: O’Hanlon v IC

[2019] UKUT 34 (AAC)

at [15]. Any factor that is capable of affecting the operation of those values and policies is relevant to the balancing exercise. That includes both the content of the information and the possible consequences of disclosure or non-disclosure. The arguments presented may be general in their nature or unique to the information in issue. But the test is not an abstract one; the issue is always whether the information covered by the request should be disclosed: NHS England v IC and Dean

[2019] UKUT 145 (AAC)

at [15].

[32]The public interest balancing test should be carried out by reference to the circumstances pertaining on the date on which the request for information ought to have been dealt with pursuant to FOIA (section 10(1) FOIA: within 20 working days following receipt of the request): Montague v IC and DIT

[2022] UKUT 104 (AAC)

at [47]-[90] (see Cabinet Office v IC

[2025] UKUT 114 (AAC)

at [113]). The role of the Tribunal

[33]The Tribunal’s remit is governed by section 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. Procedural matters concerning the hearing

[34]There was an OPEN session attended by all the parties present and a CLOSED session which was attended only by the IC and the CO and its representatives.

[35]The Tribunal considered an OPEN bundle of documents (362 pages). The parties also submitted a joint authorities bundle (418 pages). In this decision we refer to page numbers of documents in these bundles with the prefixes OB and AB respectively. The Tribunal had the benefit of skeleton arguments from both parties.

[36]The Tribunal also considered a CLOSED bundle of withheld documents (71 pages). Prior to the hearing an application under rule 14 of the Tribunal Rules had been made as regards the withheld and other CLOSED material and an order made that disclosure of the information contained in the closed bundle should not be disclosed or published to any person other than the IC and CO in this case pending further order.

[37]There was, within the hearing, a CLOSED session in which the Tribunal heard CLOSED evidence from the CO’s witness, Mr Davies and CLOSED submissions from both parties. As both parties were permitted to see and hear CLOSED material, there was no need to provide a gist to either party, but for completeness the following gist was prepared by the parties and approved by the Tribunal:

“1. This is a gist of the closed session held by the First-Tier Tribunal on 18 May 2026 in the hearing of the Cabinet Office’s appeal. 2. The closed session consisted of the closed evidence of Mark Davies of the Cabinet Office, and closed submissions of the parties. 3. Under cross-examination by Counsel for the Commissioner and re-examination by Counsel for the Cabinet Office, Mr Davies answered questions about the following matters: i. The level of detail contained in the Documents and the extent to which that information can be said to be anodyne; ii. The extent to which the Documents might be said to indicate any disagreements or frank exchange of views, whether by those with particular knowledge of government and politics or members of the general public; iii. The extent to which the content of the Documents was already in the public domain at the time of the request; iv. The extent to which the Documents have been drafted so as to protect the convention of Cabinet Collective Responsibility even if disclosed; v. The extent to which it might be possible to identify individual Cabinet members from the content of the Documents; vi. The extent to which the behaviour of Cabinet members may change if the information contained in the Documents were to be disclosed; vii. Previous examples of disclosure of Cabinet documents and the impact this may have had on the functioning of Cabinet Collective Responsibility; viii. The extent to which the Cabinet Office’s concerns about disclosure could be addressed by providing context alongside disclosure of the Documents. 4. In closed submissions, Counsel for the Commissioner and Counsel for the Cabinet Office made submissions in respect of each of the Documents and the answers given by Mr Davies in relation to the topics identified in paragraph 3 above.”

The issues i. The level of detail contained in the Documents and the extent to which that information can be said to be anodyne; ii. The extent to which the Documents might be said to indicate any disagreements or frank exchange of views, whether by those with particular knowledge of government and politics or members of the general public; iii. The extent to which the content of the Documents was already in the public domain at the time of the request; iv. The extent to which the Documents have been drafted so as to protect the convention of Cabinet Collective Responsibility even if disclosed; v. The extent to which it might be possible to identify individual Cabinet members from the content of the Documents; vi. The extent to which the behaviour of Cabinet members may change if the information contained in the Documents were to be disclosed; vii. Previous examples of disclosure of Cabinet documents and the impact this may have had on the functioning of Cabinet Collective Responsibility; viii. The extent to which the Cabinet Office’s concerns about disclosure could be addressed by providing context alongside disclosure of the Documents.

The issues

[38]It is common ground between the parties that section 35(1) (b) is engaged, so the key issue for the Tribunal to determine is whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

[39]We noted that a number of other issues were stated to be common ground, which included the following: a. The convention of CCR exists and is of real constitutional importance.

[40]The Government does not proactively disclose matters engaging CCR before transfer to the National Archives under the 20-year rule. Exceptions to this are rare.a. Ministers can and do disagree before decisions are reached and breaches of the convention do occur.

b. Information subject to the convention is not absolutely exempt under FOIA and it is possible that there would be circumstances in which it would be appropriate for such material to be disclosed under FOIA.

[41]There has only been one instance of disclosure under FOIA of cabinet and/or committee minutes or information within the scope of the convention and this related to particularly unique circumstances.a. Other forms of accountability are relevant in principle to the balancing of the public interest.

b. Although the Inquiry disclosed the ADD document subsequently, at the time of the response to the original request in October 2024, it was not in the public domain. Evidence

[42]We heard both OPEN and CLOSED oral evidence from Mark Davies, Director of Economic Affairs within the Economic and Domestic Affairs Secretariat of the Cabinet Secretariat. The key additional points he made in his OPEN oral evidence were, in summary, as follows:a. When asked whether the need for the convention was stronger when there was actual disagreement, he said that it is important regardless of disagreement because the convention is the cloak around the process through which the Government reached a decision. The purpose of the convention is around freedom to determine the decision-making process, not defending areas where there is no consensus.

b. When asked about whether a working assumption of confidentiality was weaker than a general rule to that effect, he said that he considered both were rebuttable presumptions.

c. He said that internal processes are not the subject of Government accountability; this only extends to substantive decisions. Disclosure of attendance or non-attendance would invite scrutiny of the process and not only what was decided, but why it was not being discussed in a particular way. It is entirely a matter for the Government as to how it organises itself to reach the decisions it needs to make and how it uses its resources, particularly in responding to a crisis. Disclosure would dilute this safe space and have an impact on how the Government organises themselves in future; there remains political salience in how it responds to crises and global shocks.

d. He drew a distinction between the exceptional circumstances in which Government documents were disclosed to the Inquiry and the expectation ministers have of ongoing routine disclosure under FOIA short of the usual 20-year rule. It is rare for documents to be disclosed before transfer to the National Archives, but ministers do have an understanding that disclosure can be made under FOIA, and that section 35(1)(b) is a qualified exemption. He noted that only a very narrow range of documents have been released by the Inquiry. He also noted that there is only one example of a Cabinet minute being disclosed under FOIA. The circumstances would need to be very exceptional indeed for this to be appropriate.

e. When asked about whether if the documents were ordered to be disclosed, the CO could contextualise these by disclosing further information to put what is disclosed into context, he said that this would not preserve the convention. Submissions

[43]The CO, in its skeleton and the hearing made the following additional submissions: 44. The DN in this appeal closely resembles those addressed in three other recent appeals before the Tribunal: Cabinet Office v Information Commissioner

[2025] UKFTT 291 (GRC)

(“Conway”); Department for Transport v Information Commissioner

[2025] UKFTT 819 (GRC)

(“Gorman”); Cabinet Office v IC

[2026] UKFTT 537 (GRC)

(“Lloyd 1”). In each of those cases, the IC ordered disclosure of Cabinet or Cabinet committee documents created during the Covid-19 pandemic. In the cases of Gorman and Lloyd 1, these related to Action and Decision Documents, Committee Papers and Committee agendas, not Minutes, which indicates the importance of preserving the confidentiality of all Cabinet and Cabinet Committee documents, including those which might on their faces seem merely procedural. In each of those cases, the Tribunal overturned the IC’s decision, finding that the IC had overstated the public interest in disclosure and had given insufficient weight to the convention of CCR. While recognising that these are persuasive not binding, there is no proper basis for the Tribunal to take any different approach in the present appeal.a. The principle of collective responsibility enables Ministers to express their views fully and ensures that debate around the Cabinet table is frank and candid. This promotes decision-making that is likely to yield the best outcome in terms of Government policy: Davies, §65 [OB/C148]; see also Lidington, §8 [OB/C351] as accepted by the Tribunal in Conway at §28 and §§50-51. The principle serves an important role in binding Ministers to collectively-reached decisions, and enabling them to maintain a united front in accordance with their constitutional duties: Davies, §68 [OB/C149]; Lidington, §5 [OB/C350].

b. In light of this longstanding principle, Ministers are able to act on the working assumption that what they say in Cabinet or Cabinet committees will not be made public until relevant documents are transferred to the National Archives after 20 years. If this were not the case, Ministerial behaviour would change in ways that would be detrimental to effective Cabinet government: Davies, §71 [OB/C150], §105 [OB/C161].

c. The CO recognises and respects that section 35(1)(b) is a qualified exemption, capable of being outweighed in the public interest in an appropriate case; see Whitmey

[2018] UKUT 348 (AAC)

at §13 per Judge Jacobs. However, such cases will be rare.

[45]The IC made the following additional submissions in his skeleton argument and at the hearing:a. The IC denies that he gave insufficient weight to the need topreserve the convention. That convention,while significant, does not enjoy decisive weight nor does its deployment transmute thequalified exemption under s35(1)(b) FOIA to an absolute one. The IC wasplainly entitled to conclude that the impact of disclosure on the convention in thisparticular instance was outweighed by the very substantial public interest inunderstanding government decision-making in the early days of the Covid-19 pandemic.

b. The IC was entitled to conclude on the basis of the material already before him that there was insufficient evidence on the part of the CO to show that disclosure would have the detrimental impact claimed. As the UT held in Aitchison (op cit), “the public interest is a matter for the judgment of the Commissioner or a tribunal in the light of the background facts” (§75).

c. The IC was plainly right to conclude that the “legitimate and substantial public interest in transparency and accountability of the delivery of the Government’s response to the pandemic as set out in the particular information requested” (DN, §44) [OB/A15] outweighed the weight in the convention of collective Cabinet responsibility in this instance.

d. The 20-year rule, in and of itself, is a matter of Government policy, not a rule of law of any sort. Indeed, FOIA is entirely silent as to it. It was enough for the IC to note that the requested information remained covered by the convention, without needing to refer to the recondite administrative arrangements by which Cabinet documents are ultimately transferred from the custody of one public authority to another.

e. In relation to the FTT’s decisions relied upon by the CO, it iswell-established that decisions of the FTT do not constitute precedent of any sort and, just as the public authority and the IC must assess each request separately, so too must the Tribunal determine each appeal on its own merits. It referred to the comments of the UT in Voyias

[2012] UKUT 190 (AAC)

at paragraph 20. In this instance, the IC properly considered the weight to be given to the convention and concluded that the balance of the public interest nonetheless favoured disclosure of the requested information. Discussion and conclusions

[46]Following the judgment in APPGER, we need to apply a three-stage process to determining where the balance of public interests lies. This involves considering:a. The harm or prejudice which would result from disclosure;

b. Factors in favour of disclosure; and

c. Factors in favour of maintaining the exemption. The harm or prejudice which would result from disclosure

[47]At paragraph 27 of the CO’s letter dated 25 March 2025 [OB B92], quoted at paragraph 26 of the DN, the CO explains the harms which it says would result from the disclosure:

“Cabinet and its committees act as the forums for the free and frank exchange of views between Ministers, either in person or by correspondence. These discussions take place prior to arriving at collective decisions about the development of policy that are binding across the rest of the Government. Their operation is reliant upon a ‘safe space’ for ministerial deliberation. The safe and confidential space for discussion is what enables Ministers’ capacity to be frank and candid with each other in discussions at Cabinet committees, leading to the fullest and most robust consideration of policy options and the most considered, highest quality policy outcomes for the public. The release of information that relates to proceedings of the Cabinet and its committees - such as the information in scope of this request regarding the proceedings of the Covid-19 Operations Cabinet committee - would compromise this safe space and deliberative process. This would lead to a chilling effect whereby Ministers would approach such discussions with less openness and candour. Ministers would be incentivised to adjust their behaviour to align with optical concerns - like future public comment on their individual contributions - rather than the effective, efficient scrutiny and discussion of policy options, upon which Cabinet government relies and Cabinet collective responsibility protects.”

[48]At paragraph 33 of the same letter [OB B93] the CO notes: the “secondary public interest in protecting the sovereignty of the deliberative process itself”. It explained that Cabinet committees help to ensure that Government business is processed more effectively by relieving pressure on Cabinet. It added:

“Ministers should be able to organise themselves as they see fit in order to discharge the collective business of government in the absence of premature public scrutiny. Were this to take place, Ministers would be incentivised to either increase or decrease the frequency of meetings, meet to discuss a particular issue to be seen to do so or choose not to meet to discuss certain controversial issues for risk of undue scrutiny. Supporting documents, such as agendas, papers and presentations, may become less candid and more opaque. The efficiency and candour of discussions would decrease, to the detriment of the rigorous, frank policy discussion necessary for the best quality of decision making. The disclosure of the information in scope of this request is highly likely to prejudice both principles set out above, but in particular the ability of ministers to organise themselves as they see fit.”

[49]At paragraphs 39-40 [OB B95-6] the CO explained “In particular Module 2 of the UK Covid-19 Inquiry investigated ‘Core UK decision-making and political governance’. The UK Covid-19 Inquiry heard evidence from witnesses at hearings (now reasonably available to the public via transcripts on the UK Covid-19 Inquiry’s website) about how the response to Covid-19 was organised, including the work of the Covid-19 Operations committee. The Cabinet Office provided all material in scope of this request, and other relevant material related to Cabinet and its committees to the UK Covid-19 Inquiry (as it is required to do following a request made under the Inquiries Act). The Government has consistently underlined the exceptional nature of this process, including to the UK Covid-19 Inquiry, cognisant of the potential impact otherwise on Cabinet collective responsibility. This is because of the recognition of the implications of any more broad-based departure from those principles; indeed, the Government’s engagement with the UK Covid-19 Inquiry has consistently sought to ensure that any disclosure of material protected by Cabinet collective responsibility is duly circumscribed in light of that.

[50]Mr Davies identified the following harms in his OPEN statement:

[51]“disclosing such documents would erode the safe and private space that Ministers expect at Cabinet and Cabinet committee meetings. It is important that those participating in discussions at Cabinet and Cabinet committees have confidence that the content of their discussions will remain confidential. This is to ensure that the discussions held are frank, free, and robust. The disclosure of material that relates to these discussions could lead to discussions at Cabinet and its committees becoming less robust and more defensive which may lower the quality of discussion and, therefore, decision making.” Paragraph 65a. “In this context, it bears emphasis that ministers are unlikely to view disclosure in this case as an isolated, single event without implications for future Cabinet and Cabinet committee discussions. Regardless of any strict rules of precedent, Ministers are likely to see a decision or requirement to disclose documents of this nature as creating an expectation that similar information could be disclosed in the future. Ministers may also be incentivised to take their discussions away from Cabinet and Cabinet committee meetings, undermining the structure and purpose of such meetings and limiting the ability of the Cabinet Secretariat to accurately record and communicate the outcome of ministerial discussions. The risk is that the quality of discussions, and so of collective decision making and policymaking, would generally decline, which would self-evidently not be in the public interest.” Paragraphs 66 and 67

b. “the 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”. Paragraph 68

c. “The purpose of Cabinet and committee meetings, to bind Ministers in support of collective decisions, would be significantly undermined (and indeed their viability challenged) if Ministers felt that they could not surface difficult or unpalatable options, risks, opportunities, or trade-offs as a result concern about the disclosure of Cabinet and committee documents prior to their transmission to The National Archives in the usual way. Further, consideration and decision making on matters that would normally engage the collective responsibility of the Cabinet that took place away from Cabinet and its committees due to ministerial concern about disclosure of their views would not benefit from the status of a collective decision of the Cabinet around which ministers would be expected to coalesce in the usual way. The united front that Ministers are expected to maintain would become less effective as a result.” Paragraphs 69 and 70

d. “if the fact that committee meetings ended inconclusively on some issues were to be routinely released, in future contexts Ministers may be subjected to perverse incentives to come to a collective position on all matters put before them for concern of criticism for not reaching a conclusion or appearing to be divided on an issue, even where doing so would not be appropriate or could lead to the wrong decision being made”. Paragraph 80

e. “While some of the contributions set out above are unattributed, as is the usual practice for drafting Cabinet and Cabinet committee minutes, the public could make reasonable assumptions about the identity of the Minister responsible. Further, if such information were routinely put into the public domain, Ministers may have such varied comments, made in the safe space of a Cabinet committee, put to them in public, further eroding the united front that Ministers are expected to maintain. Ministers can and do disagree with their personal or departmental viewpoints and it is essential that Cabinet collective responsibility provides a mechanism whereby these varied perspectives are brought together and produce a unified Cabinet decision”. Paragraph 81

f. “It is essential that Ministers feel free to bring proposals to Cabinet or Cabinet committees in the most effective and efficient manner. This efficiency is dependent upon the candour with which proposals are presented, which would be significantly prejudiced if Ministers assumed that they would be made public prior to their transmission to The National Archives after 20 years. In my experience working on a limited number of policies where it was anticipated that such papers would need to be disclosed to the courts shortly afterwards, I have seen that Cabinet committee papers have been prepared by Departments with a view to public consumption in the short to medium term; this has resulted in delays, papers that are insufficiently detailed, lacking in a full assessment of options, or otherwise do not meet the purpose of the discussion.” Paragraph 88

g. “The purpose of Cabinet and Cabinet committee meetings, to bind Ministers in support of collective decisions, would be rendered inert if Ministers felt that they could not surface difficult options, risks, opportunities or trade-offs - especially where those may be politically sensitive or contentious - as a result of concern about the premature disclosure of papers prepared for Cabinet committee consideration.” Paragraph 93

h. Disclosure of the committee paper in particular “would provide a fragmentary picture of theGovernment’s consideration of these key risks”. Paragraph 96

i. In relation specifically to the agenda for the meeting, “I consider that disclosure of even this information would contribute to an erosion of Ministers’ perception of their ability to have free and frank discussions and organise themselves as they see fit for the reasons set out above. Moreover, the information contained in the agenda would shed little (if any) light on the substance of any key decisions taken, beyond that which was already in the public domain in any event.” Paragraph 101

j. “Release of the information in scope of this appeal would lead to the erosion of these expectations [of the timeline for release of documents to the National Archives] which would, in my view, tangibly prejudice the effective operation of Cabinet Government”. Paragraph 108

k. “The disclosure of Cabinet committee materials could influence the decisions taken by the Chair of the committees about the appropriateness of holding the meetings and the topics that have been selected for collective discussion. Meetings may be taken more or less frequently to align with public perception. Disclosure to the public would jeopardise the sovereignty of how the Prime Minister, and their Ministers, choose to organise themselves as they see fit to discharge the collective business of government. Additionally, the disclosure of the information in the context of a Covid-19 Operations Committee meeting reveals allocation of subject matter between committees of the Cabinet, and Cabinet itself, inviting questions about whether a topic was being discussed at the right level (Covid-19 Operations rather than Cabinet, Covid-19 Strategy or another Cabinet committee), or the importance of one particular topic over another”. Paragraph 129

l. “there would be an almost inevitable degree of chilling effect and concern as a result of the disclosure of the Cabinet committee documents as ordered in the Decision Notice. Release of this information would cause a tangible prejudice to the effective operation of Cabinet Government, both through the erosion of the safe space expected by Ministers at Cabinet and its committees, and through the processes by which Ministers choose to organise themselves as they see fit to discharge the collective business of Government.” Paragraph 140

[52]Mr Knight, for the CO, submitted that if the assumption of confidentiality is weakened, the risk is not that ministers will not challenge, but that they will do so in a different and more informal way outside the confines of Cabinet and its committees, without minutes or other documents relating to their conducts. The nature of harm referred to by Mr Davies was an increased likelihood of contrivance in what is produced in terms of how documents are drafted and/or framed. For example he argued that such materials are likely to be more defensive, emphasising the positive and reducing the negative, resulting in more papers being put in, more people invited so no one can say key voices were omitted, loading the agenda to cover everything and avoiding briefing the chair about contentious issues.

[53]He said that the harm caused by disclosure of the Documents was not because they attribute views to particular individuals, but because they enable apparent or perceived areas of difference inviting comment, process of elimination and speculation. The harm was three-fold:a. The role of Cabinet and Cabinet committees in decision making would be reduced;

b. Decision making would be less effective, less structured and less effectively focused; and

c. Contributions would be reduced to performative statements with an eye on the public gaze rather than genuine debate. Factors in favour of disclosure

[54]Paragraph 22 of the CO’s letter to the IC dated 25 March 2025 [OB B90], quoted at paragraph 2 of the Decision Notice states: “The Cabinet Office appreciates that there is a public interest in the release of information relating to Cabinet and its committees (such as the Covid-19 Operations Committee). We recognise that openness in government may increase public trust in, and engagement with, the government, as well as to promote transparency of decision making within Government in the context of the Covid-19 pandemic response”.

[55]The IC states at paragraph 41 of the DN that he “struggles to accept that disclosure of the specific information would undermine Ministerial unity and effectiveness or result in less robust, well-considered or effective Ministerial debates in the way set out by the Cabinet Office. In the Commissioner’s view, the way in which the information in scope is recorded and the content detailed there would not lessen the effectiveness of principle of collective responsibility. The Commissioner would not expect any disclosure ordered in specific circumstances to be interpreted as a precedent leading to disclosure in subsequent similar circumstances. The Commissioner must stress that his investigations are specific to the particular circumstances of a case and the nature of the information held by the relevant public author”.

[56]The IC states at paragraph 42 of the DN that “The Commissioner notes that the convention also applies to material which could compromise the safe space for ministerial deliberation. The Commissioner considers that there is a strong and important public interest in protecting this safe space. Where information relates to deliberations that are still ongoing the Commissioner also considers that public interest arguments regarding the chilling effect will have weight and relevance. However, in this case the request post-dated the pandemic and the Government decision making by several years and the weight attributed to any detriment in this regard is therefore reduced”

[57]He goes on to say at paragraph 43 “The Commissioner does not consider that the exceptional nature of this particular matter, and taking account of the actual content of the withheld information, including the age of the information which was over four years old at the time of the request, would result in the impact described by the Cabinet Office. The Commissioner would not expect Ministers to be influenced by such rare circumstances as those resulting from the pandemic.”

[58]Mr Davies in his OPEN statement says at paragraph 112 “There is undoubtedly a strong public interest in examining the Government’s actions in responding to the Covid-19 pandemic. It is exactly for this reason that accountability for the Government’s response to the pandemic is being provided through the extensive, detailed processes of the independent [Inquiry]” He notes at paragraph 114 the “exceptional” approach taken by the then PM to disclosing cabinet and cabinet committee minutes and related documents to the Inquiry. He then concludes at paragraph 117 “the view of Cabinet Office is that any onwarddisclosure of material protected by Cabinet collective responsibility by the Inquiry to coreparticipants or the public would not, in any event, alter the importance or applicability of the convention more generally, nor the weight that the convention should be accorded indetermining the public interest in disclosure of such material under FOIA”

[59]He says at paragraph 120 “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 Chair of the Inquiry to determine which materials to publish and when, subject to any Restriction Orders or Notices made under the Inquiries Act 2005”

[60]Mr Knight accepted that there is a public interest in transparency and accountability in public decision-making including Cabinet and its committees and other forms of mechanisms for accountability are in principle relevant to the public interest balancing test. He also accepted that there was a heightened public interest in relation to the Government’s Covid response and a degree of exceptionality to everything Covid-related, but that that was why the PM established the Inquiry and tasked it to focus on Government decision making at all levels, as it has done. He commented that in the context of the Documents, the Inquiry had provided a significant measure of accountability which was better and more effective for having considered all the evidence and provided a holistic view of the Covid response.

[61]Mr Metcalfe, for the IC, noted that the approach of the FTT has only been to allow CCR information to be disclosed in a very few cases, but argued that it does not follow that the threshold is that the information must be very exceptional, noting there is no authority on this point. He noted the veto written into FOIA which the CO can invoke.

[62]He also noted that in terms of ministerial expectations, the Cabinet Manual and Ministerial Code do not mention the 20-year rule, but that they do mention FOIA more than once. He argued that the existence of the 20-year rule is not sufficient to render section 35(1)(b) an absolute exemption under FOIA. He noted that although the information was only 4.5 years old at the time of the request, there had been several Governments since then.

[63]Mr Metcalfe said that it was not obvious why preparatory material for Cabinet and committee meetings should be covered by the convention, as the purpose was to protect the output of discussions. He said that no current or serving Cabinet minister would be inhibited by or regard the disclosure of the minute as having any bearing on the convention. He noted that Mr Davies had not provided any evidence of actual deterioration in the quality of Cabinet discussions as a result of the two sets of minutes (one from Covid-O) being disclosed by the Inquiry in the context of Module 2.

[64]He argued that the strength of public interest in the inaugural meeting of this particular committee was exceptionally strong, because it helps members of the public see for themselves how the decisions of this committee were set up. Factors in favour of maintaining the exemption

[65]As summarised by the IC at paragraphs 32-33 of the Decision Notice:

“The Cabinet Office added that, in its view, any onward disclosure by the Inquiry of material protected by Cabinet collective responsibility does not alter the importance or applicability of the convention in other contexts or the weight attributed when balancing the public interest. 33. The Cabinet Office also pointed out that there is “paramount public interest” in not “second guessing” the on-going Inquiry’s judgements regarding the public interest in disclosure. It stated: “Should the UK Covid-19 Inquiry wish to publish these documents they would do so in the appropriate context as part of their ongoing investigations either through a wider report or oral hearings. The disclosure of Cabinet and Cabinet committees material is conducted with full analysis and contextualisation as opposed to the piecemeal disclosure as would be demonstrated through this FOI request.”

[66]The IC stated at paragraph 38 of the Decision Notice:

“The Commissioner’s deliberations have taken into account whether the Government’s proactive communications during the pandemic and the establishment of the Inquiry result in ‘a satisfactory amount of information’ to be in the public domain. The Commissioner accepts that the amount of information proactively published and given to the Inquirydoes carry weight in the public interest test in maintaining the exemption.”

[67]Mr Davies, in his OPEN witness statement made the following points:a. “Any documents relating to Cabinet or Cabinet committee discussions through which collective agreement has been reached engage the convention of cabinet collective responsibility. The Government’s starting point when considering the disclosure of such documents is that there is a very strong public interest in ensuring that they remain confidential.” Paragraph 62

b. “a function of Cabinet committees is to collectively agree policy proposals brought to that committee by Ministers, which all government Ministers are expected to defend in public and to Parliament once agreed. Disclosure of minutes can identify where there had been disagreement, often substantial disagreement, at a Cabinet committee meeting. It is therefore vital that Ministers can have a safe space to discuss these issues in private.” Paragraph 73

c. “There is therefore a strong public interest in ensuring the highest possible quality policy development, including the ministerial debate at Cabinet and its committees regarding policy options that, once a collective decision is taken, would bind Ministers to said decision. This would be undermined by the release of the Cabinet committee papers from Covid-19 Operations Committee meetings.“ Paragraph 97

d. “if Ministers approached Cabinet or Cabinet committee meetings in the knowledge or assumption that details of their discussions may be put into the public domain while they may remain active in politics, the nature of their contributions would change. They may be less likely to offer a view that may differ from that of their colleagues, or that they perceive would receive wider public comment or scrutiny due to their position as Members of Parliament or Ministers.” Paragraph 104

e. “I do not consider that the weight attributed to protecting cabinet confidentiality should be reduced due to the passage of time”. Paragraph 107

f. “the Inquiry has provided, and will in future provide, comprehensive disclosure and accountability to facilitate public understanding of the Government’s actions throughout the Covid-19 pandemic. Disclosure of the information in question would not substantially advance that understanding that would justify the prejudice to the convention of collective responsibility as I have set out above”. Paragraph 126

g. In relation to contemporary accountability:

“The disclosure of information within scope of this request would not add a significant amount of detail to the narrative that would outweigh the harm that would result from its disclosure”

. Paragraph 128 h. “disclosure of the documents in scope of this appeal would not advance public understanding of the decisions made by the Government, beyond which the Government has already put into the public domain during the pandemic or through the activities of the UK Covid-19 Inquiry”. Paragraph 141

[68]Mr Knight, for the CO, submitted that the disclosure of CCR material is contrary to the public interest because it undermines the collective decision making that underpins Cabinet governance. This is not because ministers might disagree, but because they do not expect their discussions to be in the public eye, or their decision-making process to become the focus of scrutiny. The primary public interest is in the substantive decision or policy reached at the end of the process and the working assumption within Government on which ministers operate is that material surrounding that will not be disclosed before 20 years except in a genuinely exceptional context.

[69]He argued that it is not the role of FOIA to undermine constitutional structures. The establishment of a new Cabinet committee and deciding what it should prioritise is a matter that evoked strong views at the time and continues to do so as the ongoing Inquiry shows, even if the Documents are fundamentally process related. The information which the Documents contain is uninformative as to substantive restrictions to be imposed or lifted on the lives of the public in general. Some of the documents may be “anodyne”, but as noted by Judge Griffin in Sloan, these provide the building blocks of how the convention operates.

[70]In the context of the particular Documents in question here, Mr Knight argued that the general weight given to the convention was enhanced where:a. the minutes will encourage speculation about the views that can be attributed to individual ministers,

b. the cabinet paper is especially candid and frank, and

c. the agenda and Chair’s brief are more succinct but could provide a back door way into seeking to identify trade-offs in the process.

[71]He noted that the information in question is relatively recent, and a long way from the long-stop transfer to the National Archives under the 20-year rule.

[72]Mr Knight further argued that the public interest in the effectiveness of the relevant committee’s structure was something which was considered by the Inquiry and covered in Module 2 of its report [OB p361]. This noted that the committee was an improvement on previous arrangements, but nothing published by the Inquiry increases the public interest in disclosure under FOIA. There is also no exercise of power or duty or quasi-judicial function here, as was the case in Aitchison.

[73]To the extent that the context of Covid is exceptional, Mr Knight argued that this is cancelled out by the specific accountability tool of the Inquiry, which is better placed than the FTT to consider the Documents and other CCR material in context and extract issues of wider importance. He argued that the IC had not attributed sufficient weight to this, nor to the accountability and transparency provided throughout the Covid period by extensive public announcements and explanations of policy. He noted that the Inquiry had been set up by the point at which the CO responded to the request in October 2024. By that point also the Government had made disclosure of all the Documents in issue here to the Inquiry, which had subsequently held and completed its oral hearings on Module 2, exploring committee structures and work, and disclosed the ADD Document.

[74]Mr Knight noted that the Inquiry’s role involved contextualising documents it disclosed from a holistic point of view, but this does not mean there is an obligation on the CO to contextualise disclosure under FOIA in the same way. FOIA and the Inquiry are fundamentally different. He also commented on the fact that ministers would have been aware of a likelihood of some degree of disclosure from the Inquiry of some material disclosed to it, but there is no such likelihood in relation to disclosure under FOIA, which would be responsive, un-contextualised, piecemeal and without any context. He argued that ministers’ behaviour would not alter in relation to disclosure by the Inquiry but was likely to alter from unanticipated disclosure under FOIA. Balance of the public interest

[75]As an overarching point, we noted the submissions of both parties in relation to Voyias paragraphs 18 to 20 [AB 168] which provide that the Tribunal must assess the factors relevant to the public interest balancing test in section 2(2)(b) of FOIA “in the context of the case”. That authority further notes that “Previous decisions are of persuasive authority and the tribunal is right to value consistency in decision-making” but cautions against paying too close attention to previous cases. We note that we are not bound by the previous decisions made by the FTT in relation to other cases concerning disclosure of materials relating to Covid ministerial discussions. However, we have treated these decisions as being of persuasive weight and had regard to them in the context of the need for consistency, while proceeding to consider this appeal in its own circumstances and on its own merits.

[76]The request is for the specific Documents, so it is these we must consider when applying the public interest balancing test as we are required to do under section 2(2)(b) of FOIA.

[77]We also note that we are considering the public interest as it stood at the time of the CO responding to the original request, so on or around 11 October 2024.

[78]We noted that it is common ground that the convention of CCR exists and is of real constitutional importance. Based on the evidence of Mr Davies set out above, we found that disclosure of the Documents would harm or prejudice the convention of CCR in that it would:a. Erode or otherwise undermine the safe space which ministers need in order to deliberate matters properly in the context of cabinet committees and the united front which they are obliged to present to Parliament and the public;

b. Reduce the ability of ministers to surface difficult options, opportunities or trade-offs, as a result of concern about disclosure before the 20-year mark;

c. Lead to less of the deliberative process taking place in the context of Cabinet and committee meetings, reducing the efficiency and effectiveness of such meetings;

d. Lead to questions and scrutiny being on the process of reaching a decision or policy position rather than the substantive outcome of the process. We noted in this context and accepted Mr Davies’ evidence that it is substantive decisions rather than internal processes which are the subject of Government accountability.

[79]In reaching these conclusions we gave significant weight to the evidence of Mr Davies, and also the evidence of Sir David Lidington in his witness statement in the bundle [OB C348] (given in relation to another matter, but relevant to the impact of disclosure in the context of the convention). In the case of Mr Davies, we considered that his long experience meant he was well placed to comment on the impact to the processes of Cabinet. Sir David gave evidence of his own lived experience and the expectations he had as a minister.

[80]Against this harm, we need to balance the factors in favour of disclosure and in favour of maintaining the exemption. Again, it is common ground between the parties that there is a public interest in transparency and accountability in public decision making.

[81]The actual content of the Documents is relevant here and we discuss this further in the CLOSED decision. We found that the Documents, particularly those produced in advance of the meeting in question, were primarily process-related and agreed with the CO that they were the building blocks of the process by which ministers could reach a position, rather than reflecting a final position in themselves.

[82]While we accept the IC’s point that the circumstances surrounding the Covid pandemic were rare and thus of public interest, the mechanisms of Government continue to operate through many unusual circumstances and crises and it is important that public resources continue to be used efficiently and effectively. Public interest in ministerial affairs is, rightly, focused on the output of ministerial discussions and the way in which that output is reached. While some of the Documents might be interesting to the public, we were not persuaded on the balance of probabilities that the need to disclose the information they contained and the advance to public understanding and transparency this would achieve outweighs the harm that would be caused to the convention by doing so.

[83]We accepted that preparatory material for Cabinet and committee meetings was covered by the convention, because it informs the context in which discussions take place and we were persuaded by Mr Davies’ evidence as to the impact disclosure would have on this. We accepted the CO’s contention that it is primarily the decisions and policy positions that the Cabinet and its committees reach which are the matters on which they are accountable to Parliament and the wider public, rather than the mechanisms and processes by which they reach that point. This led to us placing less weight on the public interest in procedural matters such as how committees organise and structure themselves.

[84]We agreed with the IC’s argument that there is no explicit requirement for exceptionality for disclosure to be ordered by the FTT under FOIA. In determining whether disclosure is warranted, we need to consider all relevant factors in the circumstances of a particular case. This might in the context of ministerial communication cover exceptional circumstances such as disclosure of matters concerning a minister resigning in a Cabinet meeting, but we need to look at which way the balance tips when all factors are taken into account and there would usually need to be something important to outweigh potential harm to the convention if the Documents were disclosed. On the facts of this case, we did not consider that there was, but that does not mean that we could not envisage this happening on the facts of another case.

[85]We agreed with the CO that the exceptionality of the circumstances surrounding the Covid pandemic was outweighed by the existence of the Inquiry, which was in a better position than this Tribunal to look at the significance of the Documents in the context of ministerial decision making during the pandemic. Both parties accepted that alternative forms of accountability are relevant, and, while noting that the regime under FOIA and that of a statutory inquiry are different, we considered that the public interest in disclosing the Documents could be properly considered and contextualised by the Inquiry in carrying out its functions. We also noted that the public interest in maintaining trust in the Government making key decisions around the response to Covid was served to a significant extent by the process of Module 2 of the Inquiry, which was well underway at the point of response to the request.

[86]We did not consider the 20-year rule for disclosure of ministerial communications operated to render the exemption under section 35(1)(b) absolute, but that the expectations or “working assumptions” of ministers in relation to this, as explained by Mr Davies, were relevant and weighed against disclosure.

[87]We noted that the ADD was disclosed by the Inquiry in August 2025, but we consider that the CO was right to withhold it at the time of responding to the request, because it was under active consideration by the Inquiry at that time, who were in a good position to see this in context.

[88]At the point of response to the request in October 2024, we therefore found that, on balance of probabilities, the public interest in disclosing all of the Documents was outweighed by the harm that would be done by such disclosure to the convention. We concluded that the public interest favoured maintaining the exemption under section 35(1)(b) and allowed the appeal. Signed Judge Harris Date: 17 June 2026