The First-tier Tribunal has overturned an Information Commissioner's decision requiring disclosure of Cabinet committee documents from the early weeks of the Covid-19 pandemic, ruling that the public interest in transparency was outweighed by the harm disclosure would cause to the constitutional convention of collective Cabinet responsibility and that the Covid-19 Inquiry provided a more appropriate and better-contextualised route to accountability than piecemeal release under FOIA.
The Cabinet Office v The Information Commissioner [2026] UKFTT 00918 (GRC) is the fourth consecutive case in which the Tribunal has reversed an ICO order to disclose Covid ministerial communications, and consolidates a body of first-instance authority giving substantial weight to Cabinet collective responsibility in the public interest balance under section 35(1)(b) FOIA.
In September 2024, a member of the public requested from the Cabinet Office all minutes, agendas, action logs and briefing materials for meetings of the Covid Operations Committee (Covid-O) held in May 2020, together with any other materials handed out or received at those meetings. Covid-O was a Cabinet committee
established to manage the operational response to the pandemic. May 2020 was a period when restrictions were beginning to ease following the first lockdown.
The Cabinet Office confirmed it held the information - comprising an agenda, a committee paper, a chair's brief, an Actions and Decisions Document (ADD), and the committee minute - but refused disclosure in reliance on section 35(1)(b) FOIA, which exempts information relating to ministerial communications. That refusal was upheld at internal review.
Following a complaint to the ICO, the Commissioner accepted that section 35(1)(b) was engaged but concluded in a decision notice of June 2025 that the public interest favoured disclosure.
The ICO's reasoning centred on four main points: the strong public interest in transparency about government decision-making during the pandemic; his view that the content and manner of recording the documents was unlikely to undermine ministerial unity or the effectiveness of collective responsibility; the reduced weight of chilling effect arguments given that the request post-dated the relevant discussions by over four years; and the fact that the documents had not yet been placed in the public domain by the Covid-19 Inquiry, meaning there was a gap in the public record.
The ICO ordered disclosure of all five documents subject to redaction of the names of junior civil servants under section 40.
The Cabinet Office appealed, arguing that the Commissioner had given insufficient weight to the constitutional importance of collective Cabinet responsibility, failed to engage adequately with the 20-year rule as a working assumption under which ministers operate, and placed excessive weight on the Covid context while failing to recognise the Inquiry as a superior and more appropriate accountability mechanism.
The Cabinet Office also argued that in three previous decisions the Tribunal had, in each case, overturned ICO orders to disclose Covid ministerial communications, finding that the Commissioner had understated the weight due to collective responsibility and overstated the public interest in disclosure. These were Conway [2025] UKFTT 291 (GRC), Gorman [2025] UKFTT 819 (GRC), and Lloyd 1 [2026] UKFTT 537 (GRC).
The ICO maintained its position, arguing that the convention, while constitutionally significant, does not enjoy decisive or near-absolute weight, that the qualified nature of the exemption means disclosure is possible in appropriate cases, and that the particular public interest in understanding government decision-making during the pandemic's critical early phase was sufficient to tip the balance.
Judge Harris, sitting with Members Saunders and Yates, allowed the appeal and substituted a decision notice finding that the Cabinet Office was entitled to rely on section 35(1)(b) and that the public interest favoured maintaining the exemption.
Harm to collective responsibility.
The Tribunal accepted the evidence of Mark Davies, Director of Economic Affairs in the Cabinet Secretariat, that disclosure would erode the safe space within which ministers deliberate, reduce the frankness with which options, risks and trade-offs are surfaced in committee, incentivise ministers to conduct sensitive discussions outside formal committee structures, and generate scrutiny focused on the process of decision-making rather than its substantive outcomes. The Tribunal placed significant weight on Davies' evidence and on a witness statement from Sir David Lidington — submitted in related proceedings — attesting to ministers' lived expectations of confidentiality.
Preparatory documents covered.
The Tribunal rejected the argument that the convention only protects the output of ministerial discussions and not preparatory materials such as agendas, chair's briefs and committee papers. It accepted the Cabinet Office's position that these documents inform the context within which discussions take place and that their disclosure would have a comparable chilling effect on how ministers approach the committee process.
The Inquiry as superior accountability.
The Tribunal's most significant finding was its treatment of the Covid-19 Inquiry as an alternative and superior accountability mechanism. Both parties had accepted that other forms of accountability are relevant in principle to the public interest balance. The Tribunal agreed with the Cabinet Office that the Inquiry — which had received all the relevant documents, had conducted and completed oral hearings for Module 2 specifically examining government decision-making, and was in a position to contextualise material holistically — was better placed than the Tribunal itself to assess and publicise the significance of these documents. Disclosure under FOIA, by contrast, would be piecemeal, uncontextualised, and responsive to a single request rather than part of a structured examination.
The 20-year rule.
While confirming that the 20-year National Archives transfer timeline does not operate to make section 35(1)(b) an absolute exemption, the Tribunal accepted that the working assumption under which ministers operate, that cabinet committee proceedings will not be disclosed until transfer, is a relevant factor weighing against disclosure. The documents in question were only around four and a half years old at the time of the request.
The ADD document.
One of the five withheld documents - the Actions and Decisions Document - was subsequently published by the Inquiry in August 2025, after the Cabinet Office had responded to the request but before the Tribunal hearing. The parties agreed that this did not affect the public interest analysis, which must be assessed as at the date of the response to the request in October 2024. The Tribunal confirmed that the Cabinet Office was entitled to withhold the ADD at that time, given it was then under active consideration by the Inquiry.
A notable feature of the decision is the Tribunal's explicit engagement with the four previous Covid-related section 35(1)(b) cases. It acknowledged that FTT decisions are persuasive but not binding, endorsed the approach taken in Conway, Gorman and Lloyd 1 as consistent with the applicable legal framework, and declined to take a different approach. In doing so it addressed directly the ICO's argument that each case must be assessed on its own merits without undue reference to earlier decisions, accepting that principle in theory while finding no grounds to depart from the established pattern in practice.
