Probate Records and their Place of Deposit

Exemptions applied

Section 31(1)(a): Law Enforcement

Section 31(1)(a) of the Act exempts information that, if it was released, would prejudice the prevention or detection of crime.

Section 31 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.

Factors in favour of disclosure:

There is a general presumption of transparency in the FOI Act.

There is a general public interest in disclosing information relating to a facility which stores important historical probate records.

Factors in favour of non-disclosure:

Disclosure would likely prejudice the security of The National Probate Records Centre, and would likely assist a motivated actor or actors with an interest in causing damage, disruption or in gaining unlawful access to the building.

Outcome of the Public Interest Test:

Although the presumption in favour of disclosure has been taken into account, the balance of the Public Interest Test is found to weigh in favour of non-disclosure. There is a significant public interest in withholding information that could be exploited by malicious actors, and which would therefore be likely to cause prejudice to security at The National Probate Records Centre.

Further guidance on section 31 can be found on the ICO website.

Section 35(1)(b): Ministerial communications

Section 35(1)(b) is a class based exemption and exempts ministerial communications; specifically, communications between two ministers or their private offices. This exemption can also cover draft communications.

Section 35 is a qualified exemption subject to the Public Interest Test, and we have considered whether the balance of the public interest favours release of this material.

Arguments in favour of disclosure:

There is a general presumption of transparency in the FOI Act.

There is general public interest in the release of information relating to the Ministry of Justice’s policy on the retention of probate documents.

Disclosure promotes transparency of government decision making and improves the quality of information available for discussion within the public sphere.

Arguments against disclosure:

These public interests must be balanced with the strong public interest in effective policymaking and the convention of Cabinet collective responsibility.

There is a strong public interest that policy-making is of the highest quality, and informed by a full consideration of all the options. The protection of a private ministerial space is paramount in ensuring the government’s collective accountability to Parliament and the public, and the most rigorous scrutinising of the policy outcomes.

The ‘safe space’ for ministers to discuss policy options robustly depends on the expectation that those discussions will remain confidential, allowing the government to present a single policy outcome to Parliament and the public, for which every minister is held accountable.

Disclosure of ministerial communications concerning the Ministry of Justice’s consultation relating to the storage and retention of probate documents, including the substance of discussions and process surrounding how collective decisions were arrived at, would erode this safe space for ministers. If this information were to be released, ministers would have less assurance that the substance of their discussions at Cabinet and Cabinet committees would remain confidential up until the transfer of documents to The National Archives after 20 years.

Ministers may be less frank and candid at Cabinet committee meetings, leading to decisions that are less well informed by a free and frank exchange of views and exploration of available options.

Outcome of the Public Interest Test:

Taking into account all the circumstances of this case, we have concluded that the balance of the public interest favours withholding some of this information under 35(1)(b). There is a considerable public interest in ensuring that the convention of collective Cabinet responsibility is not undermined.

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 on the ICO website.

Further guidance on the application of this exemption can also be found on the ICO website.

Section 43(2): Commercial Interests

This section exempts information whose disclosure would be likely to prejudice the commercial interests of any person. In this case, the exemption applies because release would prejudice the commercial interests of Iron Mountain.

Section 43(2) 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.

Arguments in favour of disclosure:

There is a general presumption of transparency in the FOI Act.

Considerations in favour of the release of the information included The National Archives’ commitment to openness and transparency in its commercial activities, to allow public scrutiny and to demonstrate that public funds are being used in an efficient and effective way. Furthermore private sector companies engaging in commercial activities with the public sector must expect some information about those activities to be disclosed. 

Arguments against disclosure:

Disclosure of specific details relating to Iron Mountain’s sub-contractor and operational workflow reveals sensitive supply chain and operational data. This information is not public knowledge and would provide Iron Mountain’s competitors a detailed view of their delivery model, costs, and the scale of their operations for this specific contract. This would allow competitors to more accurately model their own bids to undercut Iron Mountain in future tenders.

Disclosing the make, model, and approximate cost of recommended equipment compromises Iron Mountain’s position as a commercial advisor. Competitors could use this information to undermine their solutions-based proposals in future bids, arguing they can provide cheaper or different equipment. Disclosure of some of the requested information effectively reveals part of Iron Mountain’s consultancy and pricing strategy.

Outcome of the Public Interest Test:

The balance of the Public Interest Test has been found to fall in favour of withholding information covered by the section 43(2) exemption.

While there is a clear public interest in information that bears a relationship to the storage conditions and security of important probate documents, there is also a public interest in allowing commercial partners of the government to protect sensitive operational information. Disclosing information relating to Iron Mountain’s capacity limits, supply chain details, and specific client advice does not add to the public's understanding of the care of the probate records. However, it does prejudice Iron Mountain’s ability to compete fairly in the marketplace, which could ultimately reduce the quality and value for money that public bodies can achieve in future procurements.

Further guidance on the application of this exemption can be found on the ICO website.