DEMOS

The Information Commissioner Richard Thomas yesterday ordered the release of minutes from the Cabinet meetings where military action against Iraq was discussed. Was he right?

As an advocate of more rigorous application of freedom of information law and principles, I would argue yes, and that this is great news. This is a matter of huge public interest, concerning highly contested issues of national security, international relations and the use of miltary intervention. The ICO is dead right to conclude the minutes should be released. I think we should celebrate, not bemoan, when we have an Information Commissioner willing to take both the principle of transparency, and his job - to make independent judgements on matters of public interest regarding secrecy and government - seriously.

Not everyone agrees, of course. Over at the Coffeehouse, James Forsythe argues that such a disclosure jeopardises the prize of a confidential space in which ministers can feel confident in sharing their opinions freely and in a spirit of debate:

"If Cabinet Minutes can be released so soon after the event, no one will speak their mind in cabinet anymore; it would effectively mean the end of Cabinet government."

There are elements I agree with in this criticism. But the decision is still correct.

Firstly, there already, and still is, plenty of space where people can exchange views freely and fairly. The FOI Act protects this, specifically taking account the free and fair exchange of views in its (many) exemptions. Crucially, this is something the Information Commissioner also took into account, and indeed agreed upon. In his carefully worded judgement, he explains that in his opinion, in this particular case, the public interest outweighed the concerns over the exchange of views in private.

Importantly, he emphasises that he does not foresee this setting a precedent for all Cabinet minutes. The public interest test applies to many of the exemptions, and allows for disclosure if the public interest outweighs the exemptions that might have restricted release. In this  particular case, the ICO decided it did. As Maurice Frankel, director of Campaign for Freedom of Information, said in response:

"“There is unlikely to be another case involving cabinet minutes where the public interest in favour of openness is so strong. If you don’t have disclosure in a case involving war and great loss of life, you are unlikely to get it anywhere else. That door would have been permanently shut”."

Secondly, anyone who thinks that parliament is in danger of becoming too open strains the bounds of credibility. I always find it disturbing how easily we accept the suggestion that, at the sign of transparency rules encroaching on their terrain, our elected representatives will begin to conduct more affairs even further removed from scrutiny. Is this really something we should acquiesce to so easily, especially given the exemption for free and frank exchange already exists?

This release fits into the context of many - certainly not all - MPs' consistent reluctance to embrace the FOI Act, especially regarding their own conduct. The plans last year, which thankfully dropped away, to exempt MPs from the Act almost totally, and to make the fees regime lean towards non-disclosure - both on frankly spurious grounds - are cases in point.

The citing of exemptions such as the free exchange of views, or the need for confidential communication with constituents (largely already covered by the Data Protection Act) often obscure some parliamentarians' reluctance to drop the tendency towards an outmoded and unnecessary secrecy - a secrecy at odds with what we should expect from a modern democratic parliament. It's surprising that an Act designed to increase transparency - and an Act packed with exemptions that already cover most of what its critics fear - should come in for more criticism than the people who are trying to circumnavigate and undermine it.