Closed records relating to RFA Sir Galahad & Sir Tristram Board of Enquiry

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 FOIA there is a presumption that information should be released unless there are compelling reasons to withhold it.

Before completing the public interest test, this exemption requires The National Archives to get 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.

If agreed that the exemption is engaged, the next stage is to consider the public interest. In this case the balance of the public interest has found to fall in favour of disclosure of some information. This information has been released in answer to this FOI request.

Considerations in favour of the release of the information includes 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, in this case the FOI process at The National Archives.

There is public interest in the release of the details relating to the closure of these specific records relating to the RFA Sir Galahad / Sir Tristram Board of Inquiry, given their particular historic significance. Release will allow for greater transparency around the reasons the records are closed and improve public confidence in the integrity of the FOI process and decisions made. Most importantly, release will enable informed debate around this specific subject and provide greater clarity on the material held and the material closed.

However, it is considered that the release of some of the information requested would likely inhibit the free and frank provision of advice and the free and frank exchange of views for the purposes of deliberation and would be likely to otherwise prejudice the effective function of the FOI process.

It is important that public officials can exchange views and make recommendations freely and frankly. To release some of the information requested would likely act as an inhibitor to necessary discussions, which would not be in the public interest, as this would be likely to prejudice The National Archives’ ability to carry out its statutory obligations in processing FOI requests.

It is important that FOI officers are able to record free and frank recommendations and opinions in the course of their duties without inhibition, in order that they might continue to carry out these duties effectively, and to ensure that the quality of decisions made are not prejudiced by a hesitancy in recording detailed information required for informed decision making.

A safe space is required for the effective operation of this process. As such, release of some of the requested information would likely prejudice the effective conduct of public affairs. Disclosure would therefore likely cause prejudice in terms of what is often referred to as the chilling effect. The disclosure of some information would also likely cause prejudice to the FOI process at TNA.

In concluding the public interest test for section 36, it was apparent that some information to which section 36 was engaged, the balance fell in favour of release, with the factors in favour of disclosure outweighing any prejudice that might result. As outlined, this wasn’t the case for all of the information, and this material has been exempted from release and redacted from the documents provided in response to the request.

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.

Publishing the names and contact details of junior members of staff is considered an unfair use of their 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 has been created by the ICO.

Section 41: Information provided in confidence

Section 41(1) of the Act exempts information if (a) it was obtained by the public authority from any other person (including another public authority), and (b) the disclosure of the information to the public (otherwise than under the Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.

This exemption has been applied to a small amount of information within a research report, which is the same confidential information to which the exemption at section 41 applies within the relevant DEFE 69 record to which the research report relates.

This information therefore possesses the quality of confidence. Although, for the purposes of the FOI Act, section 41 is an absolute exemption, I can confirm that we have considered the public interest defence test inherent within the common law duty of confidence in reaching this decision.

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