Communications between Ministers in relation to a matter which has been submitted to Government may be exempt records under the Freedom of Information Act 1997. This would be the case if they were deemed to come within the provisions of section 19 of the Act, i.e. they were records that were submitted or were proposed to be submitted to Government and were created for that purpose or contained information for a member of the Government for use solely for the purpose of the transaction of Government business at a Government meeting. It would also arise if they came within the scope of any of the other exemption sections of the Act – for example, relate to the deliberative process of the public body, contain commercially sensitive information, etc. – some of which contain a public interest test. Such communications would, accordingly, only be released by my Department only if they were not exempt records or if they came within the scope of an exemption where a public interest test applies and the public interest in releasing the records was considered greater than the public interest in withholding them.
It is not feasible to provide details of cases where communications between Ministers on a matter which has been submitted to Government have been released by my Department. To do so would involve reviewing all FOI cases since April 1998 to check whether any inter-ministerial correspondence was among the records released and whether, if any such correspondence was released, it related to a matter which was submitted to the Government. It would then be necessary to examine all such correspondence and seek to apply retrospectively the criteria referred to in the question. This would not be a practicable exercise at this remove.
