date: Tue, 15 Jul 2008 13:49:17 +0100
from: "Palmer Dave Mr \(LIB\)" <David.PalmeratXYZxyz.ac.uk>
subject: RE: Freedom of Information request (FOI_08-23) - Appeal resolution
to: "Mouland Lucy Dr \(VCO\)" <L.MoulandatXYZxyz.ac.uk>, "Colam Jonathan Mr \(ISD\)" <J.ColamatXYZxyz.ac.uk>
1. Section 36 - It is not necessary that the VC write the letter, simply that he invokes
s.36. We are already committed to having Jonathan conducting the review of the appeal and
a draft letter is in consideration. What I would recommend is an 'addendum' in effect, in
which the VC states that in his reasonable opinion, the disclosure of this information
would likely inhibit (a) the free and frank provision of advice, (s.36(2)(i) and (b) the
free and frank exchange of vies for the purposes of deliberation (s.36(2)(ii)
I will do a briefing note and have it to you by close of play today.
2. Section 27 - this was raised by the Met Office and I think it has considerable merit,
particularly subsections (2) and (3). The relevant sections are below:
27 International relations
(1) Information is exempt information if its disclosure under this Act would, or would be
likely to, prejudice--
(a) relations between the United Kingdom and any other State,
(b) relations between the United Kingdom and any international organisation or
(c) the interests of the United Kingdom abroad, or
(d) the promotion or protection by the United Kingdom of its interests abroad.
2) Information is also exempt information if it is confidential information obtained from a
State other than the United Kingdom or from an international organisation or international
(3) For the purposes of this section, any information obtained from a State, organisation
or court is confidential at any time while the terms on which it was obtained require it to
be held in confidence or while the circumstances in which it was obtained make it
reasonable for the State, organisation or court to expect that it will be so held.
This clearly dovetails with our s.41 and s.36 exemptions and in fact is stronger than s.41
in that there is no requirement that there be 'a breach of confidence actionable by that or
any other person' . It is my opinion that the correspondence received by us was clearly
expected to be confidential by the persons who sent it to us, and should therefore be
exempt from disclosure under s.27.
Indeed, the Dept. of Justice has a Working Assumption for central government that "If,
having been consulted, the state or organisation concerned objects to disclosure on the
basis that the information was provided in confidence or if, in the absence of
consultation, the circumstances make it reasonable to assume that the state or organisation
would object to disclosure on the basis that the information was provided in confidence -
withhold, citing exemption under section 27(2) of the Act (international relations)."
This would only apply to information obtained from the IPCC itself, and the other
institutions mentioned in the original request of Mr. Holland.
There is a public interest test on this exemption and the DOJ state:
When considering the balance of the public interest in respect of confidential information
covered by section 27(2), the following are some examples of matters which might be taken
* whether disclosure would be contrary to international law (for example where disclosure
would be a breach of a treaty obligation)
* whether disclosure would undermine the United Kingdom's reputation for honouring its
international commitments and obligations
* whether disclosure would be likely to undermine the willingness of the state,
international organisation or court that supplied the information to supply other
confidential information in future (or whether it would be likely to have such an
affect on the willingness of states, international organisations or courts in general)
* whether disclosure would be likely to provoke a negative reaction from the state,
international organisation or court that supplied the information that would damage the
United Kingdom's relations with them and/or its ability to protect and promote United
* whether disclosure would be likely to result in another state, international
organisation or court disclosing confidential information supplied by the United
Kingdom, contrary to the United Kingdom's interests
* whether the state, international organisation or court that supplied the confidential
information has objected to its disclosure and good relations with them would be likely
to suffer if the objection were ignored
While the specific circumstances of each case must be considered, where any of the above
considerations are present there is likely to be a strong public interest in
non-disclosure. [emphasis mine]
I believe that the highlighted section applies in our case, based on feedback from the
persons and organisations named in the original request. If agreed, I will recommend the
insertion of the appropriate wording/arguments into the response letter from Jonathan.
3. 'Not held' - We will not be pursuing the argument that we do not hold this information,
nor will be invoke a s.40 exemption - upon reflection, it would be very contentious whether
the information left after redaction would qualify as 'personal data' requiring s.40
I am sending a copy of this to Mssrs. Briffa, Osborn, Jones and McGarvie for their input
into the Section 27 argument; however, I believe that they would be in agreement with the
approach I have taken.
Sorry this is so lengthy!
From: Mouland Lucy Dr (VCO)
Sent: Monday, July 14, 2008 4:43 PM
To: Palmer Dave Mr (LIB)
Cc: Waterson Elaine Mrs (REG)
Subject: RE: Freedom of Information request (FOI_08-23) - Appeal resolution
Registrar agrees that we should seek to use the s.36 exemption, but notes that we must
get VC specifically to agree to use it (and therefore to sign the letter?). Please
could you do a short briefing note to that effect so that Registrar can review we can
get the VC to make the decision?
I take it from the other comments that you will not pursue the argument about us not
owning the information?
Senior Assistant Registrar (Vice-Chancellor's Office)
University of East Anglia
Telephone: 01603 592229
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
"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.
<< File: Appeal_review_draft.doc >>
Information Policy Officer
University of East Anglia