PREM 49/1946

FOI request reference: CAS-105341-J1L4Q3
Publication date: February 2023

Request

Please send me a copy of all information you hold relating to this file. This is to include all material relating to discussion of whether and/or when the file may be passed to the National Archives or made open.

Outcome

Some information provided.

Response

PREM 49/1946 is currently retained by the Cabinet Office. Cabinet Office applied to the Advisory Council on National Records and Archives seeking permission to close this record on transfer. The closure application was approved on 23 January 2023..

As the closure application has now been approved, our online catalogue Discovery will be updated within 6 weeks of this decision and the transfer of this record will now be arranged (although the record will remain closed).

The closure application was submitted by Cabinet Office in relation to the FOI section 40(2) exemption. This exemption relates to the record containing personal information and the applied closure period is 82 years from 2001.

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 UK General Data Protection Regulation (UKGDPR).

In this case the exemption applies because the record contains the personal and the sensitive personal information of a number of identified individuals assumed still to be living. These individuals have a reasonable expectation of privacy which would not include the release of this information into the public domain by The National Archives during their lifetime. To do so would be likely to cause damage and/or distress and would be a breach of the first data protection principle, which is concerned with the fair, lawful and transparent processing of information of this kind.

Please see the link below for the entry from the draft FOI closure schedule 140:

https://cdn.nationalarchives.gov.uk/documents/cas-105341-draft-foi-closure-schedule-140.pdf

For context, Section 3(4) of the Public Records Act 1958 provides for the transfer of records to The National Archives. This states that all records selected for permanent preservation must be transferred to TNA by the time they are 20 years old (recently reduced from 30 years). Between now and 2022, records dated up to 2002 are subject to a transition to smooth the reduction from the previous 30-year rule.

Of the records that are selected for transfer to The National Archives, a minority will remain too sensitive to be suitable for placing in the public domain. In this instance these records can either be transferred to The National Archives ‘closed’ under an FOI exemption or, if they are highly sensitive, retained by the government department.

In both of these situations, the records will usually appear on TNA’s catalogue to show that they exist and have been selected for permanent preservation, and to allow members of the public to request access to them under the Freedom of Information Act 2000.

Explanatory annex

Exemptions applied
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 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, 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.

Given our obligations under the Public Records Act 1958 and the importance of access to public records, there is significant public interest in the openness and transparency around this process. Thus there is an expectation of transparency around how we and government operate the process to retain or transfer records. Release of this documentation may provide further understanding of the accountability of the government departments and The National Archives in relation to meeting our obligations under Public Records Act. 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 free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation. 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.

Sections 36(2)(b) includes consideration of the likelihood of harm to an authority’s ability to offer an effective public service or to meet its wider objectives, through its working practices, processes and also relationships with stakeholders (other bodies).

In this instance we are referring to the process for closing sensitive material within archival records and our duty under the Public Records Act 1958 to liaise with the responsible authorities and the Advisory Council for National Records and Archives (ACNRA) to facilitate this process.

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/