Postal Point 6.25
Floor 6
102 Petty France
London
SW1H 9AJ
T 020 3334 5249
F 020 3334 2245
E
www.justice.gov.uk
Mr Main
11 September 2009 / Ref: 60654
Dear Mr Main,
Freedom of Information request- Internal Review
I write in response to the Internal Review request you made on 29 July 2009 in relation to a Freedom of Information request asking for copies of all correspondence concerning Phorm/121Media between yourselves and the Home Office within the period 1st Jan 2006 to 5th June 2009. Your case has been passed to me for investigation; I should explain to you that the purpose of the Internal Review is to assess how the Freedom of Information request was handled in the first instance and to determine whether the original decision was correct.
In the response that was sent out to you on 24 July 2009, you were informed that the Ministry of Justice held the information you requested but that it could not be disclosed to you because it was deemed to be exempt under sections 27, 35 and 42 of the Freedom of Information Act.
I have reassessed your case I have concluded that the original handling of your case was correct and in line with the Freedom of Information act. I also found that the correct exemptions had been applied. For certainty, I conducted new public interest tests in relation to each of the exemptions that have been quoted, that is, section 27 (international relations), section 35(formulation of government policy) and section 42 ( legal professional privilege).
Section 27
Section 27 exempts information from disclosure if the effect of such would prejudice the any of the relations/interests outlined in sub-sections (a)-(d). In relation to this case I have found s27 (b) to be engaged. That is, to disclose the information would prejudice the ‘relations between the United Kingdom and any international organisation or international court’.
Arguments in favour of disclosure:
· Disclosure would contribute to an open and transparent relationship between the government and citizens. In particular there are arguments unique to this situation where there would be an opportunity for transparency in relation to the UK and the European Commission.
Arguments against disclosure:
· It is important to respect and protect the trust and confidence that exists between the UK and it’s international partners; to disclose the information could jeopardise this mutual way of working as international bodies become conscious that the UK discloses information that was provided with confidentiality in mind.
In this instance I have judged that the arguments against disclosure weigh heavier than those that favour disclosure. I am therefore exempting some information under section 27(1)(b).
Section 35
Section 35 allows non-compliance with section 1 of the Freedom of Information Act if disclosure is likely to prejudice the formulation of government policy. In particular I have identified that section 35(1)(a) to be engaged.
Arguments in favour of disclosure:
· To disclose this information would add to the public’s awareness on the issue of PHORM/121 Media, an issue that has received a lot of public interest. Furthermore, the public will become more aware of the government’s policy-making process if they are given the opportunity to follow policy development from start to finish.
Arguments against disclosure:
· It is in the public’s best interest to have a policy that has been subject to full and thorough considerations and arguments. To disclose the information at this stage could impact on how the policy is developed, if policy-developers face scrutiny from parties that are less informed of all of the issues. Officials need to consider all issues and stakeholders, and make a judgement on the direction of policy without public pressure.
In consideration of the above arguments I have established that it is in the public’s interest that this information remains withheld.
Section 42
Section 42(1) of the Freedom of Act allows information that is subject to legal professional privilege to be exempt from disclosure.
Arguments in favour of disclosure:
· Government decisions should be made once all of the legal implications have been fully highlighted to the decision-maker. The legal implications are likely to comment on negative and positive implications of the situations so that the decision-maker has a balanced perspective. To disclose this information is contrary to the public interest as it may undermine the final direction/position that is taken by the decision-maker.
Arguments against disclosure:
· It is in the public interest to know whether, once legal advice was obtained by the government, they chose to follow the advice. This again, contributes to transparency but also shows the decision-making process of the government.
I have judged that there are stronger considerations in the arguments against disclosure. I am therefore exempting some information under section 42.
I am sorry that, on this occasion, I am unable to provide you with the information you have requested. I hope that I have provided you with an adequate explanation as to why it has not been possible. If you are dissatisfied with the findings of this review, you have a right to apply to the Information Commissioner. The address for the Information Commissioner is:
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Internet: http://www.ico.gov.uk
Yours Sincerely,
Hannah Wright
Data Access & Compliance Unit