Request
Please send me the original 2011 FOI decision notice for file HO 291/1710.
Outcome
Some information provided.
Response
HO 291/1710 has not been subject to an FOI request since its transfer to The National Archives. We have therefore interpreted the decision notice to mean the closure application sent by the Ministry of Justice (MoJ) in 2011 when the record was transferred to The National Archives, and the schedule entry created after closure was agreed in consultation with the Advisory Council on National Records and Archives (ACNRA).
Please find links to PDF copies of the closure application and schedule entry below:
https://cdn.nationalarchives.gov.uk/documents/ho-2911710-moj-closure-application.pdf
https://cdn.nationalarchives.gov.uk/documents/ho-2911710-schedule-entry.pdf
Information justifying closure of the record has been redacted under section 36 of the FOI Act. Information identifying MoJ members of staff has been redacted under section 40 of the FOI Act.
As outlined in this documentation, HO 291/1710 is itself closed under sections 38(1)(b) and 40(2) of the FOI Act.
Section 38(1)(b) of the Act exempts information that, if it was released, would, or would be likely to, endanger the safety of any individual.
Section 40(2) exempts personal information about a ‘third party’ (someone other than the requester), if revealing it would break 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).
Further details concerning these exemptions can be found on the Information Commissioner’s Office website. Please see the links below:
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, or (b)(ii) the free and frank exchange of views for the purposes of deliberation.
This exemption has been applied to some information within the closure application and schedule entry regarding the closure request for HO 291/1710.
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 under the Public Records Act 1958. There is also a public interest and expectation of transparency around how records are transferred to The National Archives. Furthermore, disclosure would improve public confidence in the integrity of the process and decisions made.
However, it is considered that the release of some of the information requested would prejudice the effective function of the process for the transfer of records to The National Archives under the Public Records Act, 1958. In particular, release of this information would be likely to prejudice the ability to freely discuss recommendations on closure and sensitivities with transferring government departments. Disclosure of these communications could adversely impact the working relationships between The National Archives and transferring departments. It is important that officials are able to exchange views freely and frankly and to fully discuss any issues that affect 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 free and frank provision of advice and exchange of views for the purpose of deliberation.
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).
Some of the information requested is exempt because it 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, positions and contact details of junior officials are withheld under section 40(2) of the FOI Act.
Further guidance on the application of this exemption can be found here:
https://ico.org.uk/media/for-organisations/documents/2619056/s40-personal-information-section-40-regulation-13.pdf
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