Dear Mr Main

Re: Freedom of Information Request

I am writing in response to both your requests for information dated 11 July in which you asked for:

“…copies of all correspondence concerning Phorm/121Media between Ministry of Justice and Information Commissioners Office within the period 1st Jan 2006 to 11th July 2009.”

and:

“…copies of all correspondence concerning Phorm/121Media between Ministry of Justice and BERR/DBIS within the period 1st Jan 2006 to 11th July 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 both your requests.

You will find attached at Annex A the information disclosed in response to your request. Part of this disclosed information is exempt under section 21 of the FoIA: this is an absolute exemption which applies to information accessible to you by other means - basically, information already in the public domain. However, for ease I have included it with the other information in Annex A.

After careful consideration, I have decided that some of the information I have located is exempt from disclosure under section 35(1)(a), which applies to the formulation of Government policy. I have also concluded that some of the additional information within the scope of your request is exempt under section 27(1)(b) (International relations) and section 42(1) (Legal professional privilege).

All three exemptions are qualified and so it is necessary to assess the balance of the public interest when deciding whether or not to disclose the information. This assessment is outlined in the below.

Section 27: International Relations

Under section 27(1)(a) of the FoIA, information is exempt if disclosure under the Act would, or would be likely to, prejudice relations between the United Kingdom and any international organisation or international court. As mentioned above, section 27 is a qualified exemption and so is subject to a public interest test:

Arguments in Favour of Disclosure

There has been considerable interest surrounding the exchange between the UK Government and the European Commission regarding Phorm technology. The release of this information might provide reassurance to the public that Government takes the privacy concerns surrounding this matter seriously and is fully engaged with the Commission.

Arguments Against Disclosure

However effective conduct of international relations depends upon maintaining trust and confidence between states and international organisations; the disclosure of information relating to the UK's consideration of points raised by the European Commission and vice versa could undermine this trust and confidence.

Section 35: Formulation of Government Policy

Under section 35(1)(a) the FoIA states that information is exempt if it relates to the formulation or development of government policy. Section 35 is a qualified exemption and so is subject to a public interest test:

Arguments in Favour of Disclosure

I understand that disclosure could enable a greater understanding of the Government's views and actions regarding Phorm/121 media. Policy in this area is still being developed and the release of relevant information could help promote awareness of the issues that Government is currently considering and help the public to engage with this process.  It could also enhance transparency in how the Government makes policy decisions.

Arguments Against Disclosure

Good government depends on being able to rely on the best advice available and exploring thoroughly all of the potential options without fear that this consideration will be made public while the issue, or related matters are still live.  Releasing the information you have requested at this stage while the Phorm policy is still in development, and at times may be of a sensitive nature, could reduce the fullness and clarity of advice and discussion. This would compromise the quality of Government's decision-making. Further to this, you may be aware that the CPS is still considering whether to allow a private prosecution of the Phorm technology and it would be inappropriate to disclose any information that might impact on this decision.

Section 42: Legal Professional Privilege

Section 42(1) exemption of the FoIA applies to information relating to legal professional privilege. This is a qualified exemption and therefore also subject to a public interest test:

Arguments in Favour of Disclosure

Part of the formulation of this advice on Phorm technology, 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. Furthermore, being informed of which legal arguments are being deployed in the response to the Commission's Infraction Letter may inform the public about the Government's thinking process behind the technology.

Arguments Against Disclosure

However, disclosure of legal advice information at this time has the 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 outcomes are in the public interest. As you may be aware, the response to the Commission's Infraction Letter was sent on the 15 June 2009, and legal advice has been part of the process to this request.

Having weighed up the considerations set out above, the public interest is in favour of withholding the information exempt under s27 and s42. However, the public interest is only in favour of withholding some of the information exempt under s35. This information which is exempt under s35 but in the public interest to be released is included in the annex along with the information exempt under s21 that I mentioned above.

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 R Patel