Request
According to the published minutes of the TNA Board meeting on 28 April 2022 “An update on record series FCO141 – files relating to the migrated archives – which have been temporarily removed from ordering was provided”.
https://cdn.nationalarchives.gov.uk/documents/board-minutes-2022-04.pdf
I am requesting the following information under the Freedom of Information Act 2000:
(a) – The full minutes of the TNA Board relating to this update.
(b) – Any papers on the subject prepared for the TNA Board, on 28 April 2022 or any other occasion.
(c) – Any notes (formal or informal) taken of the Board’s discussions on 28 April 2022 or any other occasion.
Outcome
Some information provided.
Response
(a) – The full minutes of the TNA Board relating to this update
The full minutes are withheld under section 36(2)(b)(c) of the Freedom of Information Act. For further information concerning this exemption and the public interest test that was considered, please see the annexe at the end of this response.
(b) – Any papers on the subject prepared for the TNA Board, on 28 April 2022 or any other occasion
There were no papers on the subject matter submitted to the 28 April meeting. However, on 26 May the Board received an update within Item 8 (May Executive Team Update), which was marked as sensitive and redacted. This information is withheld under section 36(2)(b)(c) of the Freedom of Information Act. For further information concerning this exemption and the public interest test that was considered, please see the annex at the end of this response.
On 19 July the Board also received an update within Item 7 (July Executive Team Update):
‘Gemma Maclagan Ram will provide a verbal update in the meeting on the FCO 141 collection, temporarily withdrawn following the discovery of the presence of pesticides.’
In line with standard processes the minutes of this update will not be agreed until the 19 October Board meeting, after which they will be published on TNA’s website. As this information is intended for future publication it is withheld under section 22 of the FOI Act.
(c) – Any notes (formal or informal) taken of the Board’s discussions on 28 April 2022 or any other occasion
This information is withheld under section 36(2)(b)(c) of the Freedom of Information Act. For further information concerning this exemption and the public interest test that was considered, please see the annex at the end of this response.
Explanatory Annexe
Exemptions applied:
Section 22: Information intended for future publication
Section 22 of the Freedom of Information Act 2000 (FOIA) exempts from release information intended for future publication if (a) the information is held by the public authority with a view to its publication, by the authority or any other person, at some future date (whether determined or not), or (b) the information was already held with a view to such publication at the time when the request for information was made, and or (c) it is reasonable in all the circumstances that the information should be withheld from disclosure until the date referred to in paragraph (a).
Section 22 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.
We have considered whether it would be in the public interest for us to provide you with the information ahead of publication, despite the exemption being applicable. Please find below the reasoning for and against disclosure.
Arguments in favour of disclosure:
Disclosure of the requested information would demonstrate The National Archives’ commitment to being a transparent and accountable organisation and would increase public awareness of the work of the archives sector.
Releasing information at the current time would allow for a more informed public discussion concerning the withdrawal of the FCO 141 series.
Arguments against disclosure:
There are public interest arguments against disclosure of this information at the present time. These arguments include that it is in the public interest to adhere to the existing publication process for Board minutes, which includes time for the information to be gathered and properly verified before being placed in the public domain.
It is also in the public interest to ensure that the information is available to all members of the public at the same time, and premature publication could undermine the principle of making the information available to all at the same time through the official publication process.
On this occasion, we have concluded that the balance of the public interest test falls in favour of withholding this information.
Further guidance on the application of this exemption can be found at:
https://ico.org.uk/media/for-organisations/documents/1172/information-intended-for-future-publication-and-research-information-sections-22-and-22a-foi.pdf
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.
Arguments in favour of 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.
Arguments against disclosure:
However, it is considered that the release of some of the information requested would prejudice the effective function of The National Archive’s ongoing processes, planning and actions in relation to the withdrawal of the FCO 141 series. It is important that officials are able to exchange views freely and frankly and to fully discuss any issues that effect this process. It is also important that staff are provided with a safe space to take candid notes during meetings. 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/media/for-organisations/documents/1175/section_36_prejudice_to_effective_conduct_of_public_affairs.pdf