Savic v ICO & Ors

Savic v ICO & Ors

The Cabinet Office was not entitled to rely on s. 35(3) FOIA to neither confirm nor deny holding Cabinet minutes, as the public interest in disclosure outweighed the interest in maintaining NCND. However, the exemptions under s. 27(1) (international relations) and s. 42(1) (legal professional privilege) were properly applied to the disputed information, and the public interest in maintaining those exemptions outweighed the interest in disclosure. The NCND response under ss. 23(5) and 24(2) required further submissions and was not finally determined.

Parties
Appellant: Savic; First Respondent: Information Commissioner's Office (ICO); Second Respondent: Attorney General's Office (AGO); Third Respondent: Cabinet Office (CO)
Jurisdiction
England and Wales
Judgment Date
30 November 2016
Procedural Posture
FOIA Appeal / Upper Tribunal Decision
Outcome
Partially allowed and partially dismissed
Legal Topics
Freedom of Information, Exemptions Under FOIA, National Security, International Relations, Cabinet Confidentiality
Administrative Law Information Law National Security Law Freedom of Information Exemptions Under FOIA National Security International Relations Cabinet Confidentiality

Case Brief

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Parties

Savic

Appellant

Information Commissioner's Office (ICO)

First Respondent

Attorney General's Office (AGO)

Second Respondent

Cabinet Office (CO)

Third Respondent

Procedural Posture

FOIA Appeal / Upper Tribunal Decision

Legal Issues

  1. 1 Whether the Cabinet Office was entitled to neither confirm nor deny (NCND) holding Cabinet minutes under s. 35(3) FOIA
  2. 2 Whether exemptions under ss. 23(5), 24(2), 27(1), and 42(1) FOIA were properly applied to withhold information
  3. 3 Whether the public interest balance justified NCND or disclosure

Ratio Decidendi

The Cabinet Office was not entitled to rely on s. 35(3) FOIA to neither confirm nor deny holding Cabinet minutes, as the public interest in disclosure outweighed the interest in maintaining NCND. However, the exemptions under s. 27(1) (international relations) and s. 42(1) (legal professional privilege) were properly applied to the disputed information, and the public interest in maintaining those exemptions outweighed the interest in disclosure. The NCND response under ss. 23(5) and 24(2) required further submissions and was not finally determined.

Court Disposition

Partially allowed and partially dismissed

Orders

  • The appeal is allowed to the extent that the Cabinet Office was not entitled to NCND under s. 35(3) FOIA regarding Cabinet minutes.
  • Within 21 days, the Cabinet Office must clarify its position on NCND under ss. 23(5) and/or 24(2) for the remaining information and Cabinet minutes, and confirm or deny holding further information as appropriate.