Under FOI, I am requesting the following information.
All e-mail correspondence between TNA and the Department of Health & Social Care during the period 1st Aug 2016 – 31st Dec 2016, where the e-mail subject or content contains either of the search terms: “contaminated blood” & “Penrose”.
Please use the links below to access digital copies of releasable material.
This material consists of five emails and two research reports between The National Archives and the Department of Health concerning two Freedom of Information requests for access to closed records within the JA 418 record series.
We are unable to provide you with some of the information you have requested because it is covered by the exemption at section 36 (2)(b)(i)&(ii) of the Act.
Section 36 (2)(b)(i)&(ii) exempts information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act would, or would be likely to,(i) inhibit the free and frank provision of advice or (ii) the free and frank exchange of views for the purposes of deliberation.
Some information within the requested material is also covered by the exemption at section 40(2) of the FOI Act. This 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).
Section 36 (2)(b)(i)(ii), and 40(2) information has therefore been redacted from the attached material. For further information about why these exemptions have been applied, please see the explanatory Annex at the end of this letter.
Section 36: Prejudice to effective conduct of public affairs
The redacted material on the attachments titled ‘Research report 01’ and ‘Research Report 02’ is covered by section 36 (2)(b)(i)(ii) of the Freedom of Information Act 2000. This exempts information that, if, in the reasonable opinion of a qualified person, disclosure of the information under this Act would, or would be likely to, (i) inhibit the free and frank provision of advice, or (ii) the free and frank exchange of views for the purposes of deliberation.
Section 36 (2) (b)(i)(ii) 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 FOI Act there is a presumption that information should be released unless there are compelling reasons to withhold it.
With the agreement of the Qualified Person (for The National Archives this is our CEO and Keeper), 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.
However, it is considered that the release of the requested information would prejudice the effective function of the process for access to public records. It is important that colleagues across government are able to exchange views freely and frankly and to fully discuss any issues that affect this process. The National Archives is required to engage freely and openly with departments on an ongoing basis to discuss the sensitivities relating to our collections. We need the space to have the necessary conversations; and the removal of this space may have an adverse impact on the willingness of departments to provide The National Archives with the level of detail which the process requires. 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 obligations under the Public Records Act 1958 and the Freedom of Information Act 2000. 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 clearly outweigh any benefits of release. Therefore, this information has been redacted from the attached PDF documents.
Further guidance on section 36 can be found here:
Section 40(2): Personal Information where the applicant is not the data subject
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.
In this case the exemption applies because this information represents the personal information of junior members of staff at The National Archives and the Department of Health. The exemption also applies to the personal information of a member of the public whose name and contact details are held in the following closed record:
JA 418/CCV/Z/: 2.pdf HIV Haemophilia documents
Publishing the names and contact details of junior members of staff and a member of the public is considered an unfair use of personal data. These individuals would have no expectation that such information would be made available in the public domain; to do so would be unfair and contravene Art. 5 of the General Data Protection Regulation. As such, the names, positions and contact details of junior officials and the name and contact details of a member of the public are withheld under section 40 (2) of the FOI Act.
Further guidance can be found at: