Retention of DEFE 13/1870 and DEFE 13/1870/1

Request

Please could you provide me a) with any and all information TNA holds about the removal of these 58 pages from DEFE 13/1870 b) advice as to where these pages, now known as DEFE 13/1870/1, are stored and who has access to them.

Please can you provide me with c) any and all information TNA holds about the retention of this file in 2014 d) the dates of its last and next review.

On April 2 I made a FOI request to the MoD for a file marked at TNA as closed and retained by department since 2014. Its title is DEFE 13/1870. https://discovery.nationalarchives.gov.uk/details/r/C16527268

Please see the attached file, a scanned copy of DEFE 13/1870 as provided to me by the MoD in October. You will see there are approximately 58 pages that have been removed from the file and placed in a new file, DEFE 13/1870/1, on the grounds of S3 (4).

You will see the date of all these removals is April 5, 2024, three days after my FOI request. According to the substitute papers added to DEFE 13/1870, they were removed by TNA.

Both the MoD and Advisory Council say they have no information about any retention instrument, requests or instructions relating to that file dated around April this year. As a result, I am unclear on what lawful basis these pages could have been removed. Discovery results show that TNA does not hold a copy of DEFE 13/1870/1, so I am unclear where these removed pages are now stored.

According to your website, DEFE 13/1870 was closed to the public in 2014 using a Lord Chancellor’s Instrument. Yet the publicly available version of this retention instrument makes no mention of DEFE 13/1870, or any file that might approach it.

For example, was DEFE 13/1870 retained under that LCI and added to it retrospectively? If so, was the Advisory Council consulted? Who decided to create DEFE 13/1870/1, who has access to it, and on what dates will its access be reviewed?

Outcome

Some information provided.

Response

I can confirm that The National Archives holds information relevant to your request and 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 exemptions at sections 31(1)(a) and 40(2) of the FOI Act.

Section 31(1)(a) exempts information if it would, or be would likely to, prejudice the prevention or detection of crime.

Section 40(2) exempts personal information from disclosure where it would contravene data protection principles under the UK GDPR and DPA 2018.

For further information about why these exemptions have been applied, please see the explanatory annexe at the end of this letter.

In response to questions a and c of your request, we have collated information within a PDF attachment that contains extracts of relevant information held by The National Archives that relate to the creation and/or retention of DEFE 13/1870/1 (ie. the removal of pages from the parent piece, DEFE 13/1870, to create a retained extract), and the retention of the parent piece in 2014.

This attachment can be provided to members of the public upon request. Please contact FOIRequests@nationalarchives.gov.uk citing the reference CAS-231555.

Information identifying software brands in use by TNA has been withheld under section 31(1)(a) of the FOI Act.

Information identifying junior members of staff has been redacted under section 40(2) of the FOI Act.

In answer to question b, the information TNA has available indicates that DEFE 13/1870/1 is currently with the MoD, which has applied to retain these extracts under section 3(4) of the Public Record Act. The MoD would therefore have created this extract.

In answer to question d, TNA does not hold information on when DEFE 13/1870 was reviewed. We recommend that you contact the MoD for this information. TNA can only state that retention was approved in 2014 and was due to expire on 31/12/2024.

Information on the attached PDF states that DEFE 13/1870 was retained under LCI 118.

Annexe

Exemptions applied

Section 31(1)(a): Law Enforcement

Section 31 is a qualified exemption, and we are therefore 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. In the FOI Act there is a presumption that information should be released unless there are compelling reasons to withhold it.

The Public Interest Test has now been concluded and the balance of the public interest has been found to fall in favour of withholding information covered by the section 31(1)(a) exemption. Considerations in favour of the release of the information included the principle that there is a general public interest in transparency and accountability in disclosing information about software used by government.

However, release of this information would likely make The National Archives more vulnerable a malicious attack on The National Archives’ IT systems. Release of this information would therefore likely be seen to prejudice the prevention or detection of crime by making The National Archives’ IT systems more vulnerable to hacking. There is an overwhelming public interest in keeping government IT systems secure.

These factors are seen to outweigh any benefits of release. It has therefore been decided that the balance of the Public Interest Test lies in favour of withholding the material on this occasion.

Further guidance on section 31 can be found here.

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 United Kingdom General Data Protection Regulation (UK GDPR).

In this case the exemption applies because the requested material 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 about the publication of junior staff names can be found here.