Members of the Advisory Council

FOI request reference: F0047439
Publication date: January 2017

Title Members of the Advisory Council
FOI request reference: F0047439
Response sent: January 2017

Request:

Please clarify which members of the Advisory Council were consulted about whether or not to disclose this information?

Outcome: Unsuccessful

Response:

Thank you for your recent Freedom of Information Act (FOIA) request to The National Archives. You asked for the names of the members of the Advisory Council on National Records and Archives who, as part of FOI Panel 12, were consulted on your Freedom of Information requests to access closed documents; namely: FCO 99/1694/1 and FCO 99/1694/2.

The FOIA gives you the right to know whether we hold the information you want and to have it communicated to you, subject to any exemptions which may apply.

TNA’s Response and exemptions applied:

We hold the information you have requested but we consider it to be exempt from release by way of Section 36 (prejudice to the effective conduct of public affairs) and therefore it will not be provided.

I can, however, confirm that the Advisory Council members who made up the FOI Panel that was consulted on the requests to access the closed documents had no conflicts of interests when considering the public interest in disclosure (Advisory Council members are required to disclose any conflicts of interest that could arise as a result of their current or previous roles).

The specific section of the FOIA we are applying in order to withhold the information is Section 36 (2)(c) which states

(2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act—
(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

Our arguments are set out below.

The National Archives’ Freedom of Information Process

In order that we fulfil our responsibilities under the terms of the FOIA (section 66(5)) we are required to consult with the Secretary of State when considering an exemption which requires a public interest test, and when the information under consideration relates to historic records transferred to The National Archives. The mechanism by which we do this is through FOI Panels submitted to the Secretary of State’s Advisory Council on National Records and Archives.

The lifecycle of the FOI request process for transferred historical information received by The National Archives under the terms of the FOIA can be found here: Lifecycle of an FOI request – closed public records.

Step 5 of the process requires the consideration of the Public Interest Test and thus consultation with the Advisory Council. To facilitate this consultation, FOI Panels are convened. These Panels are made up of three Advisory Council members with the rota for panel membership being drawn up around three months in advance.

Each FOI Panel is sent typically 10-12 cases where the public interest test needs to be considered. While The National Archives collates the cases, the arguments for and against disclosure are provided to the FOI Panel by the department who transferred the file. The FOI Panel is asked to consider these cases and report their conclusions to the Secretary of the Advisory Council. If a panel member were to conclude that he/she should not consider a particular case because of a conflict of interest, he/she would stand aside from consideration of it. The FOI Panel may ask questions about the application of the exemption(s) under consideration and/or query any aspect of the case. Following the resolution of any queries the FOI Panel’s advice about whether it is in the public interest to apply the exemption(s) is communicated to The National Archive FOI Assessor handling the request. Upon receipt of the confirmed final FOI Panel advice and with the transferring department’s position in mind The National Archives supplies a written response to the applicant.

FOI Panels are currently convened each week to discuss the public interest involved in relation to FOI requests received by The National Archives. The FOI Panels operate as a safeguard to ensure the public interest is at the heart of all disclosure decisions.

Consideration of Section 36 Exemption

Following the required consultation with our qualified person, about which we explain below, we have concluded that the section 36 (2)(c) exemption is engaged. In our considered opinion the release of the requested information would prejudice our ability to effectively process Freedom of Information requests; specifically our ability to run FOI Panels.

Within the Information Commissioner’s Office guidance on the public interest test, which all qualified exemptions such as this are subject to, it states that to apply these exemptions you must first prove that the exemption is engaged. For those exemptions which are prejudice based (i.e. section 36) you must carry out a prejudice test. The prejudice test is to determine if the prejudice exists in relation to exemption engaged and assesses the likelihood that harm will occur on release of the material requested. Through conducting this test an authority should be able to indicate whether it is the lower threshold of ‘would be likely to cause prejudice’ or higher threshold of ‘would cause prejudice’.

The test is outlined in detail by the Information Commissioner’s Office within their prejudice test guidance. For section 36 (2)(c) this includes consideration of the likelihood of harm to an authority’s ability to offer an effective public service or to meet its wider objectives, through its working practices, processes and also relationships with stakeholders (other bodies). In this instance we are referring to our ability as an organisation to run processes that allow us to manage the services we provide i.e. FOI request service.

In this instance we have determined that the prejudice does exist; there is a causal link between the release of the requested information and our ability to run FOI Panels. Releasing information which would or would likely have a disruptive effect on the operation of FOI Panels would or would likely affect our conduct as a public body i.e. our capability to run FOI Panels effectively, which are necessary in order to conclude FOI requests in a timely manner.

To finalise FOI requests where:

a) A public interest test is required

and

b) The requested information relates to historic records transferred to The National Archives

the correct processes must be followed. For The National Archives, one of these processes is to ensure that consultation takes place with the Secretary of State, via her Advisory Council on National Records and Archives.

We are thus required by the legislation to undertake this consultation and consequently we must ensure that we are able to maintain the effective management of FOI Panels; the mechanism used to complete this consultation. We have determined that the release of the information you have requested would be likely to cause prejudice to our effective ability to carry out FOI Panels. Following the prejudice test we have to go on to consider where the balance of the public interest lies in terms of disclosure and thus our reasoning for withholding this information is explained below.

Applying the Section 36 Exemption

Under the terms of the FOIA, the section 36 exemption can only be considered if, in the reasonable opinion of the public authority’s qualified person – in this instance The National Archives’ Chief Executive and Keeper of Public Records – agrees that the exemption is engaged. I can confirm that the qualified person’s reasonable opinion was sought and he agreed that the exemption can and should be considered.

Our next procedural step was to consider the public interest in the release of this information. As this is a request to obtain corporate information held by The National Archives we have followed a slightly different process which can be found on following link: ‘Corporate information’. I shall set out the arguments we considered for and against disclosure of this information:
Factors in favour of disclosure:

  • Given the nature of the Advisory Council advising the Secretary of State on issues relating to access to public records and in representing the public interest in deciding what records should be open or closed, there is an expectation of transparency about how it operates (including FOI Panels) and decides on the advice it will give.
  • Release of these names may provide further openness about the process and the accountability of the Advisory Council.
  • Disclosure would improve public confidence in the integrity of the FOI process and decisions made.

Factors in favour of non-disclosure:

  • Currently FOI panels are considered to be acting on behalf of the whole Advisory Council. There is little expectation that individual members would be held responsible for the collective views and decisions.
  • A move away from collective responsibility could adversely affect current members’ willingness to serve on FOI Panels or on the Advisory Council, and the recruitment of new members. This would weaken the breadth of knowledge and experience that the Advisory Council has and is able to employ when carrying out its role in the FOI process both now and in the future.
  • A smaller pool of Advisory Council members would impact on our ability to process and respond to FOI requests made to The National Archives by the general public in a timely manner.
  • The names of the Advisory Council members are in the public domain; the value in knowing the names of specific panel members is limited in serving transparency. Release of these names provides little insight into how the panels consider the public interest test or the FOI Panel process.

Balance of the public interest

When considering the public interest test with regards to this specific information request our conclusions were finely balanced. As outlined by the factors in favour of release (listed above) there is significant benefit in being transparent and open about the work of the Advisory Council. There are however also considerable and indeed strong reasons for allowing The National Archives to consult with the Advisory Council, through FOI Panels, to remain as effective and efficient as possible. This ensures timely handling of Freedom of Information requests received by The National Archives, compliance with the terms for the FOIA and ultimately speedy and fully considered responses to requesters.

The Advisory Council and The National Archives, operate as openly and transparently as possible. Advisory Council members do, however, have an expectation that any view they reach is based on collective responsibility and they will not be held individually accountable for any specific advice or recommendation.

The volume of work we currently process (an FOI Panel with 10 applications is currently convened approximately once a week) means that any disruption to the FOI Panel process, i.e. availability of members causes delay in the handling of our information requests. Requesters would therefore have to wait longer for their FOI request and associated public interest to be assessed by the FOI Panel.

The public interest test as illustrated within our lifecycle for archival records (mentioned above), is one stage in the FOI request process. Until it is undertaken and completed requests cannot be finalised. Requests can take 20-30 days from receipt to reach Public Interest Test/FOI Panel stage. Any delay in the FOI Panel process therefore has a knock on effect to our ability to remain FOI compliant and thus our ability to provide an efficient FOI service to our requesters. This extension to a finalised response being supplied to an applicant would clearly not be in the public interest. The factors in favour of release in relation to the work of the Advisory Council and the FOI process (principally the value in releasing this information to further transparency and openness) were not as strong, in this instance, as factors in favour of non-disclosure (the need to protect the FOI Panel process in order to facilitate a timely information request service to the wider public). Therefore the balance fell in favour of non-disclosure in order to avoid any prejudice to the effective conduct of public affairs.

Therefore, after applying the public interest test and considering all arguments for and against, it has been concluded that the balance of public interest lies with applying the section 36 (2) (c) exemption.

Applying this exemption will allow for “the effective conduct of public affairs” – the processing of current and future information requests and FOI Panels – and therefore the specific information you have requested is being withheld in full.

Further Information

Guidance relating to the Section 36 exemption (prejudice to the effective conduct of public affairs) can be found on the Information Commissioners website. More information on the public interest test can also be found there:

https://ico.org.uk/media/for-organisations/documents/1183/the_public_interest_test.pdf

For further information on the Advisory Council on National Records and Archives and its membership, including their register of interests you may wish to view the following links:

http://www.nationalarchives.gov.uk/about/our-role/advisory-council/
http://www.nationalarchives.gov.uk/about/our-role/advisory-council/membership/register-of-interests/