Whether the Department was justified in refusing access to copies of agendas and minutes for the meetings of the Senior Officials Group on Covid-19

17 November 2020

Background

In a request made on 11 June 2020, as subsequently clarified, the applicant sought access to copies of agendas and minutes for the meetings of the Senior Officials Group (SOG) on Covid-19 in the period since its establishment. In a decision dated 20 July 2020, the Department identified 33 records as relevant to the request in a schedule of records made available to the applicant, but it refused the request in full under section 28(1)(c) of the FOI Act on the basis that the requested records contain information for members of the Government and Secretary General to the Government for the purpose of transaction of business at the Cabinet Committee on Covid-19 and Government.

On 22 July 2020, the applicant requested an internal review of the Department’s decision to refuse his request under section 28(1)(c), stating that it is clear that agendas and minutes do not qualify as information provided solely for the purpose of transaction of business at Cabinet. On 11 August 2020, the Department affirmed its original decision. The applicant applied to this Office for a review of the Department’s decision the following day.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the comments made in the application for review, a copy of which was provided to the Department. I have also examined the records at issue. I note that on 14 August 2020, this Office invited the applicant to make submissions in relation to any matter relevant to the review.

Subsequently, on 11 September 2020, this Office invited the Department to make focused submissions in support of its decision. On 24 September 2020, the Department requested and was granted a one-week extension of the deadline for making its submissions. To date, however, no submissions have been received from either party to the review. I have now decided to conclude the review by way of a formal, binding decision.

Scope of the Review

My review in this case is concerned solely with the question of whether the Department was justified in refusing access to the 33 records identified as relevant to the applicant’s request.

Analysis and Findings

Section 28(1)(c) of the FOI Act provides that a request may be refused if the record concerned “contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary General to the Government for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government” [emphasis added]. As this Office observed in previous decisions dealing with section 19(1)(c) under the FOI Act 1997, the equivalent provision to section 28(1)(c) of the current FOI Act, this exemption is concerned with the contents and use of records. It would typically cover departmental briefing notes for individual ministers attending a Government meeting, notes prepared for the Secretary General to the Government for the purpose of such a meeting, and the agenda of such a meeting. The sole reason for the creation of such records is to assist the Government in the conduct of one or more of its meetings and, as a general matter, it is reasonable to expect that the relevant records would cease to have a purposeful existence after the conclusion of the meeting.

In this case, the Department’s claim for exemption under section 28(1)(c) is based on the fact that the SOG supports the Special Cabinet Committee on Covid-19. However, the Department does not deny that the SOG is a working group that comes together to coordinate the Government’s response to the Covid-19 crisis. The Group is not itself a committee of the Government as defined in section 28(6) of the Act, and its role is not confined to providing information for a member of Government or other relevant official for use by him or her solely for the purpose of the transaction of Government business at a meeting of the Government. Rather, the minutes reflect that the focus of the Group’s work is on determining at a strategic level the measures that should be taken to manage the public health crisis and how such measures should be implemented in practice, including in relation to such matters as communications, education, and childcare for essential workers. While the Group provides advice and reports to the Government, the Group does not exist solely for the purpose of assisting the Government in the conduct of its meetings. On the contrary, the minutes reflect that the Group is engaged with dealing with the many practical aspects of responding to and seeking to contain and mitigate the pandemic’s wide impact on the country and the relevant records document and facilitate that work. In the circumstances, I am not satisfied that section 28(1)(c) applies.

I note that in its internal review decision, the Department also expressed concern that the release of the records would reveal the content of the Government’s discussions or information from which it would be possible to infer the content of those discussions. Section 28(2)(a) is a mandatory exemption that applies to a record containing "the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement".

Having examined the contents of the records concerned, I do not accept that section 28(2)(a) applies for the most part. The records reflect statements made by the senior civil servants attending the SOG meetings; with certain exceptions, they do not record statements made at meetings of the Government. Reference is made in numerous places to proposed Memoranda for Government and reports prepared for submission to Government, and generally regarding issues for consideration by the Cabinet Committee. However, such references, made in advance of the relevant Government meetings, do not reveal or infer the substance of the whole or part of any statement that was made at the actual meetings of the Government. I also find no basis for concluding that any other exemption applies. Accordingly, I am generally not satisfied that the Department’s decision to refuse the applicant’s request was justified.

The exceptions are items 1 and 2 of record 7, which appear to relate to agenda item 1 of record 6 (update from Cabinet Committee on 9 March), and agenda item 2 in record 15 outlining the update from Cabinet Committee (2nd April) and Cabinet (7th April). The updates provide information on statements made at the meetings referred to and section 28(2) therefore applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision in this case. I direct the release of the records concerned subject to the redaction of the following:

• items 1 and 2 of record 7;
• item 2 in record 15 outlining the update from Cabinet Committee (2nd April) and Cabinet (7th April). 

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty

Senior Investigator