Under FOI, I am requesting the following information.
All e-mail correspondence between TNA and the Department of Health & Social Care, where the e-mail subject or content contains either of the search terms:
Where relevant e-mails contain attachments, please also provide the attachments.
I also wish to limit the scope of this request to correspondence during the period 1st Jan 2016 – 31st Jul 2016.
I can confirm that The National Archives holds information relevant to your request.
We are pleased to be able to provide some of this information to you.
We are unable to provide you with some of the information you have requested because it is covered by the exemption at sections 36 (2)(b)(i)(ii) and 38(1)(a) 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.
Section 38 (1)(a) exempts information that, if it was released, would endanger the physical or mental health of any individual.
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), 38(1)(a) 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 page 28 of ‘F0060811 Correspondence & Attachments’ 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. We are therefore 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 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 a small amount of information (two paragraphs) requested 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; without the ability to do this might 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. 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 document.
Further guidance on section 36 can be found here:
Section 38: Health & Safety
The following list of material is covered by section 38(1)(a) of the Freedom of Information Act 2000. This exempts information that, if it was released, would endanger the physical or mental health or safety of any individual.
7A: Completed PIT Form JA 418_CGR-Z JA 418_CG4_Z JA 418_CG2_Z.docx
9A: 04 PIT Form JA 418_CGT_Z.docx
9B: 01 Research Report for Penrose Files (12_05_16).docx
9C: 25. PIT form JA 7_83.docx
9D: 03. Research Report JA 7_83.docx
Please note that these items are attachments to the seventh and ninth pieces of correspondence, as noted in the attached explanatory note.
As section 38(1)(a) is a qualified exemption we were required to consider whether or not it is in the public interest to release the information.
Having considered the public interest test we have decided that this information should be withheld. I regret to say this means we cannot release this information to you or to the public in general.
Please find below the factors for and against disclosure and the outcome of the public interest test.
Factors in favour of disclosure:
There is a public interest in the disclosure of the records of the Penrose Inquiry as it relates to Hepatitis C/HIV infections acquired from NHS treatment and, in general, there is public interest surrounding the health and safety of related treatments.
In terms of transparency, there will be public interest in the availability of information about settlements that have been reached, as this will show how public money has been used and will allow for accountability.
Factors against disclosure:
Some of the information in the requested material relates to individuals who are still living, some of whom may have not have shared their HIV status with family or friends. Given the stigma that is regrettably sometimes still associated with this condition, to release information regarding the HIV status of these individuals into the public domain, revealing this information to their families, friends, and the world at large, in inappropriate circumstances, may be likely to cause endangerment to their mental health.
Some of the individuals identified in the requested material as having Haemophilia/Hepatitis C/HIV are no longer alive, and the disclosure of their medical condition would be likely to cause endangerment to the mental health of surviving relatives, as some of the individuals named in the requested material had not disclosed their HIV status to family members, partners and relatives. As the requested material contains details of individuals’ sex lives, marriages and subsequent children, disclosure into the public domain would cause distress to living individuals, surviving partners, children and family members, who may not be aware of this medical history and its implications for their own health, or may not have shared this information with their own families, and this would affect their mental wellbeing.
Details of the department’s decision not to disclose this information
There is a profound public interest in avoiding causing endangerment to the mental health of any individual. In this instance, we have determined that guarding against the endangerment of the mental welfare of living sufferers and surviving partners, children and families of deceased individuals, who had these conditions, outweigh the balance of public interest in disclosure of this information for the purposes of transparency and accountability in the spending of public money.
Further guidance can be found at:
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.
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 Art. 5 of the General Data Protection Regulation. As such, the names, positions and contact details of junior officials are withheld under section 40 (2) of the FOI Act.
Further guidance can be found at: