Dear Mr Main

Re: Freedom of Information Request

I am writing in response to your request for information dated 5 June, in which you asked for:

“…copies of all correspondence concerning Phorm/121Media between this department and the Home Office within the period 1st Jan 2006 to 5th June 2009.”

Your request has been handled in accordance with the Freedom of Information Act (FOIA) as a request for information.

I can confirm that the department holds information within the scope of your request.

As you are aware from previous correspondence, in considering your request we have looked at the applicability of s.35 (formulation of government policy) of the FOIA. After careful consideration, we have decided that some of the information we have located is exempt from disclosure under section 35(1) (a).

In addition, we have concluded that the remainder of the information within the scope of your request is exempt under section 27(1) (b) (International relations) and section 42(1) (Legal professional privilege) of the FOIA.

I have explained our use of these exemptions in detail below.

Section 35

Under section 35 (1) (a) of the FOIA, information is exempt if it relates to the formulation or development of government policy. Section 35 is a qualified exemption and subject to a public interest test. The public interest test is where the Department considers whether the balance of the public interest falls in favour of withholding or disclosing the information requested.  We have taken the following public interest factors into account:

Arguments in Favour of Disclosure

Disclosure may enable a greater understanding of the Government's position with regard to Phorm/121 media. Policy in this area remains in development and to release information will promote awareness of the issues that Government is currently considering.  It will also enhance transparency in the Government's policy making decisions.

Arguments Against Disclosure

Good government depends on being able to produce best advice available and to discuss all the options available without fear of premature disclosure.  Releasing the information you have requested at this stage may reduce the breadth and frankness of advice and discussion available to decision-makers in this matter, diminishing and adversely affecting the quality of government's decision making.

In this instance our view is that the balance of the public interest falls in favour of withholding this information.

Section 27

Under section 27 (1) (b), information is exempt if its disclosure under this Act would, or would be likely to, prejudice relations between the United Kingdom and any international organisation or international court. Section 27 is a qualified exemption and subject to a public interest test. We have taken the following public interest factors into account:

Arguments in Favour of Disclosure

The Phorm trials have attracted substantial public interest and have prompted some public concern. As such, greater transparency in terms of how the Government is working with the European Commission could provide reassurances to the public and build public confidence.

Arguments Against Disclosure

There are also public interest arguments against disclosing this information. The effective conduct of international relations depends upon maintaining trust and confidence between states and international organisations.

Disclosing such information would weaken the UK's bargaining position in international negotiations and inhibit frankness and openness in diplomatic reporting, ultimately undermining its ability to protect and promote its interests through international relations.

On this occasion, we believe that the balance of public interest falls in favour of withholding this information.

Section 42

Section 42(1) applies to information relating to legal professional privilege. This is a qualified exemption and therefore also subject to a public interest test. The public interest factors we have considered are outlined below:

Arguments in Favour of Disclosure
Part of this process involved the seeking of legal advice. I can understand why the release of this information would be in the public interest, as this would reassure the public that decisions taken by government are within a fully informed legal context.

Arguments Against Disclosure

However, disclosure of information at this time has a high potential to prejudice the government's ability to defend its legal interests - both directly, by unfairly exposing its legal position to challenge, and indirectly by diminishing the reliance it can place on the advice having been fully considered and presented without fear or favour. Neither of these is in the public interest. Given the very substantial public interest in maintaining the confidentiality of legally professionally privileged material, we also did not consider that this material was suitable for disclosure.

In this instance, it is our view that the public interest in disclosing the information is outweighed by the public interest in withholding it.

As part of our obligations under the FOIA, the Ministry of Justice has an independent review process.  If you are dissatisfied with this decision, you can write to request an internal review.  The internal review will be carried out by someone who did not make the original decision, and they will re-assess how the Department handled the original request.  If the original decision was erroneous, a new decision can be substituted in its place. 

If you wish to request an internal review, please write or send an email to the Data Access and Compliance Unit within two months of the date of this letter, at the following address:

Data Access and Compliance Unit

Information Directorate

Ministry of Justice

6th Floor, 6.23

102 Petty France

London

SW1H 9AJ

E-mail: [email address]

If you remain dissatisfied after an internal review decision, you have the right to apply to the Information Commissioner's Office under Section 50 of the FOIA.  You can contact the Information Commissioner's Office at the following address:

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Internet:  https://www.ico.gov.uk/Global/contact_us.aspx

Yours sincerely

Miss K Goburdhun