Information withheld in FOI request CAS-170490

Exemptions applied

Section 35(1)(b): Ministerial communications

Section 35(1)(b) is a class based exemption and exempts ministerial communications

Section 35(1)(b) specifically applies to 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.

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

Section 36(2): Prejudice to effective conduct of public affairs

Section 36(2) (a-c) exempts information from release if, in the reasonable opinion of TNA’s qualified person, disclosure of the information would, or would be likely to; prejudice (a)(i) the maintenance of the convention of the collective responsibility of Ministers of the Crown, (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.

The opinion of TNA’s Qualified Person, who in this case is the Chief Executive and Keeper of The National Archives, has been provided and in his reasonable opinion this exemption is engaged for information relevant to this request.

Section 36 is a qualified exemption, and we are required to conduct a Public Interest Test (PIT) when applying a qualified exemption. This means that after it has been decided that the exemption is engaged, the balance of the PIT 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 PIT has now been concluded and a summary of the PIT considerations can be seen below.

Factors in favour of 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 information relating to government policy; in this case proposals made by the Ministry of Justice (MoJ) regarding the preservation of probate records.

Disclosure may strengthen public confidence in the detailed liaison between The National Archives and other government departments regarding decisions made on preservation of the public record.

The MoJ proposals relate to important issues around the preservation of the public record, and there is value in providing the public with information about TNA’s communications with the MoJ, with the Advisory Council of National Records and Archives (ACNRA) and with Ministers regarding the MoJ’s proposals.

Release would be likely to highlight the how TNA and other government departments engage with their responsibilities under the Public Records Act.

Factors in favour of non-disclosure

Section 36(2)(a)(i); information likely to prejudice the maintenance of the convention of the collective responsibility of Ministers of the Crown.

Disclosure of Ministerial communications which elucidate the opinions of individual Ministers would likely prejudice the maintenance of the convention of the collective responsibility of Ministers of the Crown. Disclosure of information at this time would therefore contravene the principle of maintaining collective responsibility on policy issues. Although the MoJ’s consultation report on probate records has been published, there remains a significant public interest in ensuring that Ministers are able to continue to discharge the collective business of the government as they see fit. It is considered that disclosure of information at this time would likely continue to cause prejudice to the conduct of public affairs in this manner.

Section 36(2)(b)(i)(ii): information that would be likely to inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation.

Disclosure of some elements of free and frank opinion and comments made by TNA staff in relation to the analysis and discussion of, and commentary upon and reactions to the MoJ’s proposals, would likely cause a chilling effect within TNA and inhibit the quality of recorded information, thereby inhibiting the quality of the decision-making process. This would be antithetical to the fostering of an atmosphere in which staff are encouraged to offer honest and forthright opinions without fear that their commentary would be unfairly and inappropriately disclosed. Staff require a safe space to debate issues and suggest opinions. Although the MoJ has now published their report on the consultation on probate documents, it has been determined that some information retains its capacity to prejudice the conduct of TNA’s public affairs, if disclosed.

The disclosure of information concerning the drafting of communications would similarly be inappropriate to disclose due to the likely impact of a chilling effect. Disclosure would likely result in TNA staff members being less likely to record comments and suggested edits in the drafting of communications, which would thereby inhibit the quality of the final versions of official communications.

Section 36(2)(c); information that would otherwise prejudice, or would be likely to otherwise to prejudice, the effective conduct of public affairs.

As the national repository of government records, TNA must maintain the integrity of working relationships with transferring government departments such as the Ministry of Justice. The disclosure of some commentary covered by this request would likely be seen to be prejudicial to these working relationships, thereby inhibiting the conduct of public affairs by causing harm to TNA’s ability to fulfil its statutory requirements and public mission to work closely with partners across government. In particular, TNA must continue to work closely with the MoJ, and to exchange views and offer guidance and advice as an institution that is the custodian of the national record.

Outcome of the public interest test

After careful consideration, it has been decided that the balance of the Public Interest Test lies in favour of withholding some of the information under consideration and disclosing some further information.

A few specific instances remain where the public interest remains balanced in favour of non-disclosure, and the exemption should be maintained in these specific instances.

Disclosure of information that would likely prejudice the maintenance of the convention of the collective responsibility of Ministers of the Crown, prejudice the free and frank provision of advice and opinion, and be prejudicial to TNA’s statutory obligations as the custodian of national records, is seen to outweigh the presumption in favour of disclosure for some of the information under consideration.

The National Archives has considered the information relevant to this request and has disclosed the requested information with redactions, thereby acting in the interests of transparency and disclosing information where possible, and only withholding what is considered to be strictly in the public interest under this exemption.

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

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 and individual members of the Advisory Council.

Publishing the names and contact details of these individuals is considered an unfair use of personal data. These members of staff and the Advisory Council 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 here.

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