Request
At the National Archives Executive Team meeting on 7th April 2021 there was an agenda item called 1921 Census – FOI considerations.
https://cdn.nationalarchives.gov.uk/documents/executive-team-meeting-minutes-2021-04.pdf
Could you please provide me with:
1) Any papers that supported this agenda item tabled for this Executive team meeting
2) Any papers, policy documents, updates to intranets or guidance that has been implemented following the actions agreed at this meeting.
3) Any papers that were provided to the UK National Archives Management Board relating to the 1921 Census Communication Strategy.
4) Any papers that were provided to the UK National Archives Management Board that include discussion on Freedom of Information request processes relating to the 1921 Census release.
Outcome
Some information provided.
Response
1) Any papers that supported this agenda item tabled for this Executive team meeting.
2) Any papers, policy documents, updates to intranets or guidance that has been implemented following the actions agreed at this meeting.
We are unable to provide you with the requested documentation as it is considered exempt under sections 36(2) (b-c), 40(2), 41(1) and 43(2) of the Freedom of Information Act.
3) Any papers that were provided to the UK National Archives Management Board relating to the 1921 Census Communication Strategy.
4) Any papers that were provided to the UK National Archives Management Board that include discussion on Freedom of Information request processes relating to the 1921 Census release.
We have performed a search of our digital filing system and identified 7 update papers which were presented to The National Archives’ Board and which concern the communication strategy and FOI request process associated with the 1921 Census Project. Please find attached a digital copy of this material.
Some information within these papers is considered exempt under sections 36(2) (b-c), 41(1) and 43(2) of the Freedom of Information Act. Furthermore some information does not concern the aforementioned strategy or processes and is consequently considered outside the scope of your request. This information has therefore been extracted from the attached digital copy.
EXPLANATORY ANNEX
Exemptions applied.
Section 36: Prejudice to Effective Conduct of Public Affairs.
Section 36 (2) (b-c) exempts information from release if, in the reasonable opinion of a qualified person, disclosure of the information would, or would be likely to; (b) (i) inhibit the free and frank provision of advice, (b) (ii) the free and frank exchange of views for the purposes of deliberation, or would otherwise prejudice, or would be likely to otherwise prejudice, (c) the effective conduct of public affairs.
Section 36 is a qualified exemption and we are required to conduct a public interest test when applying any qualified exemption. This means that after it has been decided that the exemption is engaged, the public interest in releasing the information must be considered. If the public interest in disclosing the information outweighs the public interest in withholding it then the exemption does not apply and the information must be released. In the FOIA there is a presumption that information should be released unless there are compelling reasons to withhold it.
With the agreement of the Qualified Person, who in this case is the Chief Executive and Keeper of The National Archives, in whose reasonable opinion this exemption is engaged, the public interest has now been concluded and the balance of the public interest has been found to fall in favour of non-disclosure.
Considerations in favour of the release of the information included the principle that there is a public interest in showing a true and open account of government decision-making, therein encouraging greater accountability and increasing public confidence in the integrity of the decisions made. There is also a general public interest in being able to evaluate government policy. Furthermore disclosure would offer insight into the operation of large scale digitisation projects and associated deliberations about access provisions, thus enriching public debate.
However, it is considered that the release of some of the requested information would prejudice the effective function of the process for digitising and releasing archival records. It is important that officials are able to exchange views freely and frankly and to fully discuss any issues that effect this process. To release some of the information requested may act as an inhibitor to necessary discussions which would not be in the public interest and would be likely to prejudice The National Archives’ ability to carry out its statutory obligations. Furthermore disclosure is also likely to infringe upon the safe space which officials need to develop and discuss policies to address emergent issues. As such, release of this information would be seen to prejudice the effective conduct of public affairs.
After careful consideration, it has been decided that the balance of the public interest lies in favour of withholding the information on this occasion and that the factors for non-disclosure outweigh any benefits of release.
Further guidance on the application of this exemption can be found at:
https://ico.org.uk/media/for-organisations/documents/1175/section_36_prejudice_to_effective_conduct_of_public_affairs.pdf
Section 40(2): Personal Information where the applicant is not the data subject
Section 40 exempts personal information about a ‘third party’ (someone other than the requester), if revealing it would breach the terms of Data Protection Legislation. Data Protection Legislation prevents personal information from release if it would be unfair or at odds with the reason why it was collected, or where the subject had officially served notice that releasing it would cause them damage or distress. Personal information must be processed lawfully, fairly and in a transparent manner as set out by Art. 5 of the General Data Protection Regulation (GDPR).
In this case the exemption applies because the requested material contains information which would identify junior members of staff.
Publishing the names and contact details of junior members of staff is considered an unfair use of personal data. Junior members of staff would have no expectation that information about their positions would be made available in the public domain; to do so would be unfair and contravene the first data protection principle of the Data Protection Act. As such, the names of junior officials have been withheld under section 40(2) of the FOI Act.
Further guidance about the publication of junior staff names can be found here:
https://ico.org.uk/media/fororganisations/documents/1187/section_40_requests_for_personal_data_about_employees.pdf
Section 41: Information provided in confidence.
Section 41(1) of the Act exempts information if (a) it was obtained by the public authority from any other person (including another public authority), and (b) the disclosure of the information to the public (otherwise than under the Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.
In this case the exemption applies because the information was provided by Findmypast under an expectation of confidence which they would expect The National Archives to honour.
Further guidance on the application of this exemption can be found here:
https://cy.ico.org.uk/media/for-organisations/documents/1432163/information-provided-in-confidence-section-41.pdf
Section 43(2): Commercial Interests
This section exempts information where disclosure would be likely to prejudice the commercial interests of any person. In this case, the exemption applies because release would prejudice the commercial interests of both Findmypast and The National Archives.
Section 43(2) is a qualified exemption and we are required to conduct a public interest test when applying any qualified exemption. This means that after it has been decided that the exemption is engaged, the public interest in releasing the information must be considered. If the public interest in disclosing the information outweighs the public interest in withholding it then the exemption does not apply and the information must be released. In the FOIA there is a presumption that information should be released unless there are compelling reasons to withhold it.
The public interest test has now been concluded and the balance of the public interest has been found to fall in favour of withholding information covered by the section 43(2) exemption.
Considerations in favour of the release of the information included The National Archives’ commitment to openness and transparency in its commercial activities, to allow public scrutiny and to demonstrate that public funds are being used in an efficient and effective way. Furthermore, private sector companies engaging in commercial activities with the public sector must expect some information about those activities to be disclosed.
Considerations against disclosure included the recognition that disclosure is likely to provide information to direct competitors within the market that would create an imbalance and a commercial advantage to those competitors. Furthermore disclosure of this information is also likely to affect The National Archives’ ability to negotiate contracts in the future and consequently generate revenue from non-public funds. It is also considered that disclosure would be likely to deter potential bidders for future contracts from competing and sharing commercially sensitive information with us.
As such, release of this information is seen to prejudice the commercial interests of both Findmypast and The National Archives. This would outweigh any benefits of release. It was therefore decided that the balance of the public interest lies clearly in favour of withholding the material on this occasion.
Further guidance on the application of this exemption can be found here:
https://ico.org.uk/for-organisations/foi-guidance/section-43-commercial-interests/