Closure on transfer of several Foreign & Commonwealth Office files

FOI request reference: F0045410
Publication date: July 2016

Request:

I would like to request:

All information (documents, correspondence and communications) pertaining to the closure on transfer of files FCO 40/1605, FCO 40/1446 and FCO 40/1465.

By ‘documents, correspondence and communications,’ I am referring to:

– Emails
– Memos
– Letters
– Briefing papers
– Reports
– Minutes taken during meetings
– Notes taken during telephone calls

I would like to receive the information electronically. If you feel that a substantive response to this request is not possible within a reasonable time frame, or that the request is too broad or too vague, I would be grateful if you could contact me by phone or by email: to provide assistance as to how I might refine or clarify the request.

Outcome:

Partially Successful

Response:

Thank you for your enquiry of 11 April 2016, in which you asked for the following information:

All information (documents, correspondence and communications) pertaining to the closure on transfer of files FCO 40/1605, FCO 40/1446 and FCO 40/1465.

By ‘documents, correspondence and communications,’ I am referring to:

– Emails
– Memos
– Letters
– Briefing papers
– Reports
– Minutes taken during meetings
– Notes taken during telephone calls

We have handled your request under the Freedom of Information Act 2000 (FOIA). The FOIA gives you the right to know whether we hold the information you require and, if so, to be provided with that information.

Information Held

I can confirm that The National Archives holds the following information, relevant to your request:

Two AA2 Transfer Forms

These forms list public records selected for permanent preservation and transferred to The National Archives. These records are transferred to The National Archives in large batches.

The AA2 forms relevant to your request relate to the transfer of files FCO 40/1359-1521 and FCO 40/1522-1633 of the FCO 40 series.

Three ‘Transfer List’ Spreadsheets

These spreadsheets list the draft closure information of each file transferred to TNA including; file reference, closure period and schedule number. The final draft of this information is made available on our online catalogue Discovery under each file reference.

Two FOI schedules

These schedules are created using information provided in applications by government departments to extend a record’s closure period. These schedules are then submitted to the Advisory Council on National Records and Archives (ACNRA) for approval.

The two schedules relevant to your request are FOI 58 closed in 2013 (relating to the closure of FCO 40/1446 and FCO 40/1465) and FOI 65 closed in 2014 (relating to the closure of FCO 40/1605).

Three emails

These emails contain discussion between the Foreign and Commonwealth Office (FCO) and The National Archives around the closure application of file FCO 40/1446.

The National Archives also holds general correspondence/documentation relating to the transfer of the entire FCO 40 series. However, this documentation does not contain any specific reference to the three records identified in your request, FCO 40/1605, FCO 40/1446 and FCO 40/1465 and as such has not been considered within the scope of your request.

Information which can be released

Having considered the information that falls within the scope of your request, we are happy to confirm that most of this information can be released. This information includes:

  • Two AA2 transfer forms
  • Three ‘Transfer List’ spreadsheets
  • Two extracted versions of the FOI schedules submitted to the ACNRA

Please see page 19 to 21 of our Access Manual for more details on the procedures for closure on transfer.

Information which cannot be released

Section 36

We are unable to provide you with the remainder of the information you have requested because it is covered by the exemption at section 36(2)(b)(i), (2)(b)(ii) and (2)(c) of the FOIA.
Section 36(2) of FOIA exempts information if, in the reasonable opinion of a qualified person[1], disclosure of the information under the Act-

(b) would, or would be likely to, inhibit—

(i) the free and frank provision of advice, or
(ii) the free and frank exchange of views for the purposes of deliberation, or
(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

This exemption applies to:

  • The notes field on the FOI schedules that were submitted to ACNRA.
  • Three emails between the FCO and The National Archives which discuss the closure application of file FCO 40/1446.

Section 36 is a qualified exemption; as such we are required to conduct a public interest test. 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.  There is a presumption running through the FOIA that information should be released unless there are compelling reasons to withhold it.

The balance to be considered when using this exemption is the public interest in ensuring that there is a space within which officials can discuss policy options and delivery, freely and frankly. Therefore assessing whether disclosure would have an effect on the ability of officials and to discuss and debate such matters openly.

The Qualified Person has been consulted and confirmed that, in their opinion, the exemption can be said to reasonably apply.

It has been determined that the release of this information would prejudice the ability of the Foreign and Commonwealth Office [FCO] to communicate with The National Archives, inhibiting the ability of the FCO and The National Archives to plan together for closed record transfers. This would outweigh any benefits of release. Release of this information would be seen to prejudice the effective conduct of public affairs by preventing the effective function of the process, in turn delaying potential transfers of records to The National Archives, and in doing so preventing public access to these records within reasonable timescales. It is important that officials from these departments are able to conduct discussions and reach agreements regarding the record transfer process free from public scrutiny within its full context; taking into consideration other transferring files and pre-existing record holdings, particularly in accruing series of records.

The public interest here means the public good, not what is of interest to the public, and not the private interests of the requestor. The public interest in being able to ensure that The National Archives and FCO are able to confidently collate, prepare and verify the information that will be used to produce these catalogue listings; prior to placing it into the public domain, is stronger than the public interest in providing one interested party with advance notification of listings which will ultimately be made available in the public domain.

It was therefore decided that the balance of the public interest lies clearly in favour of withholding the material on this occasion.

Having considered all the relevant arguments, the balance of the public interest has been found to fall in favour of withholding this information under section 36(2)(b)(i), (2)(b)(ii) and (2)(c) of the FOIA.

Section 40

Some of the information contained in the three emails between the FCO and The National Archives, which discuss the closure application of file FCO 40/1446, is also exempt under section 40 (2) (by virtue of section 40 (3) (a) (i)) of the FOIA.

Section 40 exempts personal information about a ‘third party’ (someone other than the requester), if revealing it would breach the terms of the Data Protection Act (DPA) 1998. The DPA 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.

In this case the exemption applies because the emails contain the personal data of identified individuals who would have no expectation that this information would be made available in the public domain during their lifetimes. To do so would be unfair which would contravene the first data protection principle.

Additional Exemptions

The full versions of the ACNRA schedules relating to FCO 40/1605, FCO 40/1446 or FCO 40/1465 are also covered by additional exemptions. This is because they contain details of the sensitivities which warrant the continued closure of these records under sections 38, 27(1) and 40 of the FOIA. Please find below further information about the closure periods and exemptions which apply to these records.

FCO 40/1605 – This file was closed under section 27(1) FOIA for 40 years.

FCO 40/1446 – This file was closed under sections 27(1), 38 and 40(2) FOIA for 50 years.

FCO 40/1465 – This file was closed under section 27(1) FOIA for 40 years.

Section 27(1) of the FOIA exempts information that, if it was released, could put at risk relations between the UK and any other state, international organisation or international court; the interests of the UK abroad; or the UK’s ability to promote or protect its interests. The definition of ‘state’ includes the government of any state and any part of such a government.

Section 38 of the FOIA exempts information that, if it was released, would endanger the physical or mental health or safety of any individual.

These are qualified exemptions; as such a public interest test was required to consider whether the interests of the public were best served by disclosure or non disclosure of the information.

Section 40 exempts personal information about a ‘third party’ (someone other than the requester), if revealing it would breach the terms of the Data Protection Act (DPA) 1998. The DPA 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.

If you are dissatisfied with the handling of your request or the decision which has been reached, you have the right to ask for an internal review.  Internal review requests must be submitted within two months of the date of this response and should be addressed to:

Quality Manager
Public Services Development Unit
The National Archives
Kew
Richmond
Surrey
TW9 4DU

complaints@nationalarchives.gov.uk

Please mark your complaint clearly.  You have the right to ask the Information Commissioner (ICO) to investigate any aspect of your complaint.  However, please note that the ICO is likely to expect internal complaints procedures to have been exhausted before beginning his investigation.

Yours sincerely,

FOI Assessor
Freedom of Information Centre
Transfer and Access Department
The National Archives

[1] The Chief Executive and Keeper at The National Archives