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'European Commission; First Stage of Infringement Proceeding'.
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Information Directorate Ministry of Justice 102 Petty France London SW1H 9AJ
T 020 3334 3809 E kavita.goburdhun@justice.gsi.gov.uk
www.justice.gov.uk |
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Peter John
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Our Ref: 59925 |
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13 July 2009 |
Dear Mr John
SUBJECT: Freedom of Information Request
Thank you for your e-mail of 13 June in which you ask for some information on the first stage of infringement proceedings. Your request for information is in five parts, so I have answered each question separately. In line with your request, I have only searched our records from 14 April until 13 June 2009.
You asked us to confirm or deny that a response to the European Commission has been submitted with regard to infringement proceedings. I can confirm that a response was submitted to the European Commission on 15 June 2009 (we refer to these as “infraction” rather than “infringement” proceedings).
You wanted to know which department was responsible for submitting the response. This was the Home Office, although other government departments contributed towards the response.
You also asked us to disclose the content of that response. I can confirm that we do hold this information. However, this is exempt under Sections 27 and 35 of the Freedom of Information Act 2000 (FOIA). I will explain a little more about this later on in my letter.
You asked for disclosure of correspondence between this department and the European Commission concerning the response. I have searched our records and can not find any information that falls within the scope of this request.
You also asked for disclosure of correspondence between this department and other UK departments contributing to the response. I have searched our records and I can tell you that we do hold some information. However, some of this information is exempt under Sections 27 and 35 of FOIA.
Sections 27 and 35 are qualified exemptions which means that the public interest in favour of releasing and withholding the information must be carefully considered to see where the balance lies.
Arguments in Favour of Disclosure
There are public interest arguments in favour of disclosing this information. Disclosing the information now would, for example, enable the public to obtain a greater understanding of the issues that Government had considered before it submitted its response to the European Commission and more information in general about the issue. It would also enhance transparency in Government's policy making decisions.
News of the Phorm Trials has prompted some public concern so that release of information about how the Government is now working with the Commission on the matter could provide reassurances to the public. You will know that a number of police forces have been involved in investigations, and the CPS is currently deciding whether there is enough evidence to advise City of London Police to launch a private prosecution against Phorm. Disclosing the information could show how seriously Government taken this issue and thereby improve the public's confidence in Government's data protection policies.
Arguments Against Disclosure
However, there are also public interest arguments against disclosing this information at this time. Good government depends on good decision making and this needs to be based on the best advice available and a full consideration of all the options without fear of premature disclosure. Disclosure of the information would reduce the breadth and frankness of advice and discussion available to decision-makers in this matter; thereby adversely affecting the quality of the decision eventually taken.
The response to the European Commission is highly confidential and sensitive, and forms part of an on-going dialogue to determine compliance with the Directive. To release the information you have requested could have a negative impact on the course of that dialogue, including future legislative changes.
These are the relevant sections of FOIA:
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 international court,
(c) the interests of the United Kingdom abroad, or
(d) the promotion or protection by the United Kingdom of its interests abroad.
S35 Formulation of government policy
(1) Information held by a government department or by the National Assembly for Wales is exempt information if it relates to—
(a) the formulation or development of government policy,
(b) Ministerial communications,
(c) the provision of advice by any of the Law Officers or any request for the provision of such advice, or
(d) the operation of any Ministerial private office.
Conclusion
I have weighed up the arguments both for releasing and withholding the information in question, and it is in my view that, on balance, the public interest is better served by withholding this information under Sections 27 and 35 of the FOIA at this time.
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
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
Yours sincerely
Miss K Goburdhun
