Dear Mr Cross,

RE: Request for an Internal Review

Thank you for your email dated 15 September in which you expressed dissatisfaction with the Department's response to your Freedom of Information Act (FOIA) request and asked for an Internal Review of that decision. Your request has been passed to me for investigation as I carry out Internal Reviews for the Ministry of Justice related matters.

The purpose of an Internal Review is to assess how your Freedom of Information request was handled in the first place.

On 14 August 2009 you requested information, under FOIA, of representations made by her Majesty and other members of the Royal Household with regard to UK Freedom of Information Law. You also asked how many weeks of Royal correspondence information would fall within the costs limits.

On 15 September 2009 we wrote to you confirming that the Ministry of Justice (MOJ) does hold information falling within the scope of your first question however, it was considered exempt under Section 35(1)(a) (formulation or development of government policy), section 37(1)(a) (communications with Her Majesty etc.), section 40(2) (personal data) and section 41(1) (information provided in confidence).

I have reviewed the way in which your case was handled and I have looked at the basis of the original decision and I have concluded that the information you requested is held by the MoJ. However, I consider that the exemptions applied in our previous response i.e. Section 35(1)(a), Section 37(1)(a), Section 40(2) and Section 41(1) do apply.

I have reconsidered whether the public interest falls in favour of releasing the information, or whether the decision to not to disclose the information you seek was correct.

Section 35(1)(a) provides that information is exempt if it relates to the formulation or development of government policy. MOJ recognises that decisions taken by Ministers may have a significant impact on the lives of the public and there is a public interest in this process being transparent.  We also recognise that greater transparency makes government more accountable to the electorate and increases trust.  There is a public interest in providing the public with the information it needs to satisfy itself that the process by which government develops policy is of a high quality. 

Equally, there is a very strong public interest in withholding this information.  MOJ considers there is a pressing need to protect the policy space that officials need to consider all policy options, including those received from outside government, without fear of their discussions being disclosed prematurely. Furthermore, it is extremely important that government policy has the strongest possible evidence base. Disclosure of information in response to this would be detrimental to the extent that stakeholders would be less prepared to make representations about matters of interest to them, to the overall detriment of the policy development process.

Having considered both sides of argument, I confirm the balance of public interest falls in favour of withholding the information covered by section 35(1)(a) of the Act.

Section 37(1)(a) exempts information if it relates to communications with Her Majesty, with other Members of the Royal Family or Royal Household. MOJ recognises that there is a public interest in the role of the Royal Family and specifically with regard to their interaction with Government. We also acknowledge that there is a special public interest with regard to information held in this context, since Prime Minister's announcement that Government will look to provide greater protection for sensitive `Royal' papers.

In weighing the respective public interest, we consider that extremely strong arguments for disclosure must be shown in order to outweigh the public interest in withholding disclosure of the requested information. There is a well established constitutional principal that correspondence between the Sovereign and Government is confidential in nature. The principal is in addition to the right of the Sovereign to be consulted by her Government, and to advise, encourage and warn them as appropriate. The rights of the Sovereign could not be exercised effectively in the absence of confidentiality, as the political neutrality of the Sovereign could not be preserved. These communications are regarded as subject to expectations of confidence, and it is of considerable public interest that they be treated as such.

Having considered both sides of argument, I confirm that the balance of public interest falls in favour of withholding the information exempt under section 37(1)(a) of the Act.

Section 40(2) exempts personal information from disclosure if the requested information relates to someone other than the requestor, and if disclosure of that information would, amongst other things, contravene one of the data protection principles in schedule 1 of the Data Protection Act 1998. In this case, I confirm that disclosure would contravene the first data protection principle, which provides that personal data must be processed fairly and lawfully. Section 40(2) is an absolute exemption and the Ministry of Justice is not obliged to consider whether the public interest favours disclosing the information.

Section 41 (1) provides an exemption to the right of access where disclosure to the public of information that has been provided to the Ministry of Justice by another person would constitute an actionable breach of confidence. In MOJ's view, some of the information you requested is covered by this exemption. This is an absolute exemption and therefore not subject to a public interest test.

I can confirm, as previously advised in MOJ's response of 15 September to your FOIA request of 14 August, we do not hold information stating how many weeks or days worth of correspondence a requester could get within the cost limit.

I am sorry that I am unable to present you with the information that you requested under the Freedom of Information Act but I hope that the Internal Review has clarified why it has not been possible to disclose the information to you on this occasion.

If you are dissatisfied with the findings of this internal review, you can complain to the Information Commissioner, at the following address:

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Yours sincerely

Roger Davies

Data Access & Compliance Unit