Request
On 1 January 2016, a closed extract – FCO 31/1877/1, Folio 1 – was released and reunited with its parent piece, FCO 31/1877. Under the FOI Act, I request information about the reason for the ten year closure of this extract, Folio 1. The parent piece had been retained until 2006.
Outcome
Some information provided.
Response
From 2006 to 2016 FCO 31/1877/1 was held at The National Archives as a closed extract. The extract was closed under section 27(1) of the FOI Act.
Section 27(1) exempts information that, if released, could put at risk; (a) relations between the UK and any other state, (b) relations between the UK and any international organisation or international court, (c) the interests of the UK abroad, or (d) the UK’s ability to promote or protect its interests.
For archival records exempt under section 27, The National Archives generally uses what is termed a ‘rolling 10 year’ closure period. For information about this type of closure please see our published guidance: https://cdn.nationalarchives.gov.uk/documents/information-management/closure-periods.pdf
In the run-up to a ten-year closure period expiring, the transferring department will review the record and determine if a further ten-year extension is required due to continuing sensitivities in the record. This process is also independently reviewed by the Advisory Council on National Records and Archives (ACNRA). For more information about ACNRA’s role in this process please see our published guidance: https://www.nationalarchives.gov.uk/about/our-role/advisory-council/role-of-the-advisory-council/
In this case, upon a review of FCO 31/1877/1, the record was no longer considered sensitive and was therefore released in 2016, at the expiration of the ten year closure period.
The National Archives holds information concerning the specific reason for the former closure of FCO 31/1877/1, within a closure justification for the record that is held on a database. Upon consultation with the Keeper of The National Archives, this information has been determined to be exempt under section 36(2)(b) of the FOI Act. This is because this information contains free and frank opinion from the Foreign, Commonwealth and Development Office concerning the record’s closure, justifying the use of the section 27(1) exemption.
Although FCO 31/1877/1 has been re-united with its respective parent piece and released to the public, release of the closure justification is considered to likely prejudice the ability of transferring departments to provide free and frank advice when transferring closed records to The National Archives. Release would be seen to create what is termed a ‘chilling effect’, thereby inhibiting the quality of information provided by transferring departments concerning the justification for maintaining closure of archival records.
Explanatory annex
Exemptions applied
Section 36: Prejudice to Effective Conduct of Public Affairs
Section 36 (2) (b) 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.
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, making for 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, specifically concerning the reasons for maintaining closure of archival records.
However, it is considered that the release of some of the information requested would prejudice the effective function of the process for transferring closed records to The National Archives. 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. 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/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/section-36-prejudice-to-the-effective-conduct-of-public-affairs/