date: Thu, 10 Jul 2008 16:02:37 +0100
from: "Palmer Dave Mr \(LIB\)" <David.PalmeratXYZxyz.ac.uk>
subject: FW: Freedom of Information request (FOI_08-23) - Appeal resolution
to: "Briffa Keith Prof \(ENV\)" <K.BriffaatXYZxyz.ac.uk>, "Osborn Timothy Dr \(ENV\)" <T.OsbornatXYZxyz.ac.uk>, "Jones Philip Prof \(ENV\)" <P.JonesatXYZxyz.ac.uk>
A copy of what was sent to Jonathan. Please note that the opinion from the Met Office
quoted below is subject to lawyer-client privilege and should not be shared outside the
group that has now seen it.
From: Palmer Dave Mr (LIB)
Sent: Thursday, July 10, 2008 3:56 PM
To: Colam Jonathan Mr (ISD)
Cc: Mouland Lucy Dr (VCO)
Subject: Freedom of Information request (FOI_08-23) - Appeal resolution draft
A draft response for your review and comment. I have been in contact with the ICO who are
of the opinion that, if we feel that there are exemptions that we 'missed' on the first
review of the request, they should be raised at this stage.
I have added a s.40 exemption on the assumption that, even if names of correspondents are
redacted, there is enough information in what's left to reveal the identity of
individuals. If what is left is 'personal data', then s.40 clearly applies; it is whether
what is left qualifies as personal data....
Additionally, I have added a s.36 exemption on the basis that the disclosure of this
information would clearly "in the reasonable opinion of a qualified person", "inhibit the
free and frank provision of advice, or, the free and frank exchange of views for the
purpose of deliberation" and "would otherwise prejudice... the effective conduct of public
affairs". This section, as I read it, does not limit the provision of advice or exchange
of views to inside an organisation. I have been in touch with Lucy to determine, in a
rough way, the opinion of the 'qualified person' (i.e. the VC) in this case & she concurs.
There is an additional argument that we might wish to make. I have been in touch with the
Met Office that have received a similar request. They have been in touch with the ICO and
are making the argument that the correspondence is not actually 'held' by them at all! The
argument is as follows: guidance from last year from the ICO indicates that information in
which the institution has no interest but physically possesses, is not 'held' by them for
the purposes of the Act. Guidance states:
"In these circumstances the public authority will have an interest in this information and
will make disclosure decisions. This is because although
ownership may still rest with the depositor, the public authority with whom the information
has been deposited effectively controls the information and holds it in its own right. It
will therefore be difficult to argue that the information is merely held on behalf of
another person and consequently not held for the purposes of the public authority itself."
"There will be cases where such information is simply held on behalf of a third party, for
example for preservation or security purposes. Perhaps the public
authority may be holding the information as part of a service (whether for gain or
otherwise) to the depositor. Although this information is in the possession of a public
authority, it does not fall within the scope of the Act as the public authority has no
interest in it."
And finally in regards personal emails in general
"In most circumstances private emails sent or received by staff in the workplace would not
be held by the authority as it has no interest in them. It will be a
question of fact and degree whether a public authority does hold them, dependent on the
level of access and control it has over the e mail system and
on the computer use policies. It is likely to be the exception rather than the rule that
the public authority does hold them."
I have also received some correspondence from the Met Office that sets out their argument
along these lines; and further an assertion that the ICO has indicated that, on the facts
of their particular case (emails not created by the organisation, or used by them). To
quote the internal briefing note
"...the IPCC consultation exercise did not have a role in respect of the specific functions
of the Met Office. It was aligned with them but not a function of the Met Office. The
whole purpose of the IPCC is that it is independent and objective."
The Met Office are arguing that their Director's involvement was in a
pseudo-academic/personal capacity and not as a representative of the Met Office and the
IPCC work was not Met Office work. What it comes down to is our corporate interest in this
IPCC correspondence - if we have some, then it would be 'held' by us. I have emailed
Mssrs. Briffa, Osborn & Jones to assess this .. .but your feeling?
Where we to make this argument, I would put it immediately after our re-assertion of our
primary grounds of exemption; if the ICO does decide that we 'hold' this correspondence, we
would need to have a position on it's disclosure.
Information Policy Officer
University of East Anglia
Attachment Converted: "c:\eudora\attach\Appeal_review_draft.doc"