Savic v ICO & Ors

For a neither-confirm-nor-deny response under Freedom of Information Act 2000, the public-interest assessment concerns disclosure of whether the authority holds information of the stated description. It does not concern disclosure of the information’s contents.

Accordingly, an authority relying on section 35(3) must identify a public interest in withholding confirmation or denial of the decision-making process itself. Confidentiality, candour and collective-responsibility arguments directed to the contents of Cabinet discussions do not answer that distinct question.

For an historic decision to commence military action, there was a strong public interest in knowing whether Cabinet minutes existed. That interest outweighed the limited force of the asserted distraction caused by debate about the level at which the decision was made. By contrast, disclosure of the confirmed diplomatic material was properly withheld where the public interest in maintaining the international-relations exemption outweighed disclosure.

The appellant, a solicitor, made requests to the Attorney General’s Office and the Cabinet Office for material concerning the 1999 military air campaign against Serbia and Kosovo. This decision concerned the appeal from the Information Commissioner’s decision on the Cabinet Office request.

The Cabinet Office had confirmed that it held some responsive information but withheld it under exemptions including section 27(1) of the Freedom of Information Act 2000. It neither confirmed nor denied that it held Cabinet minutes, relying on section 35(3), and also gave an NCND response under sections 23(5) and 24(2).

The central issues were the proper public-interest approach to NCND responses, whether section 35(3) justified the Cabinet-minutes response, and whether the confirmed diplomatic material should remain withheld under section 27(1).

1. The appeal was allowed in part. The Cabinet Office could not rely on section 35(3) of the Freedom of Information Act 2000 to neither confirm nor deny whether it held Cabinet minutes within the request. The contrary part of the Commissioner’s decision was not in accordance with the law.

2. The section 2(1)(b) public-interest test for an NCND response is materially different from the section 2(2)(b) test governing disclosure after information has been confirmed as held. The former asks whether the public interest in excluding the duty to confirm or deny outweighs the public interest in revealing whether information of the stated description is held. It is not a contents-based assessment.

3. The asserted interests in confidentiality of Cabinet discussions, candour and collective responsibility concerned the substance of discussions. They did not justify NCND of the process or level of governmental decision-making. The only surviving argument was that disclosure of whether Cabinet or a Cabinet committee had been involved would create an unhelpful distraction from the merits of the decision.

4. That argument had some force while a decision was being made, but its weight diminished over time. Transparency about the process for an important and far-reaching decision promotes good government. In this case there was a strong public interest in knowing whether Cabinet minutes existed, including because contemporary debate about military action made the historical process relevant to future decision-making.

5. The Tribunal did not finally determine the NCND response under sections 23(5) and 24(2). It considered that the Commissioner’s reasoning required further argument, particularly on the statutory tests, the interaction of the provisions, the scope of any NCND response, and how a confirmation or denial would safeguard national security. The Cabinet Office was required to state its position and respond afresh on the basis that section 35(3) was unavailable.

6. The appeal was dismissed concerning the confirmed information falling within section 27(1). Disclosure created real risks of damage to the United Kingdom’s relationships with the United States and Serbia, and consequential harm to intelligence sharing and foreign-policy objectives. Although the public interest in understanding the decision to commence military action was strong, material already in the public domain reduced the additional value of disclosure. The public interest in maintaining the exemption therefore prevailed.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal in part from the Information Commissioner’s decision of 13 January 2015 concerning the Cabinet Office request. The Tribunal rejected reliance on section 35(3) for NCND of Cabinet minutes, upheld withholding under section 27(1), and directed further consideration of sections 23(5) and 24(2) of the Freedom of Information Act 2000.
• Information Commissioner: By decision of 13 January 2015, upheld the Cabinet Office’s NCND responses and its reliance on exemptions in sections 27(1) and 42(1).