			Information Policy Division Information Directorate 6^th Floor 102 Petty France London SW1H 9AJ T 020 3334 4543 F 020 3334 3745 14 September 2009


	Mr. Steve Hankin [FOI #14843 email]

Our Ref: ITG 60866

Dear Mr. Hankin,

I am writing in response to your e-mail of 17 August in which you requested that an Internal Review be conducted regarding your request of 17 July under the Freedom of Information Act. In your request you asked that the Ministry of Justice conduct an Internal Review of the decision to withhold information under section 35(1)(a) of the Act. Having now considered the case, specifically the public interest arguments in relation to the use of section 27(1)(b) and section 35(1)(a), I am now in a position to provide you with the Ministry of Justice's response.

It is first worth pointing out that much of the information you requested was withheld under section 27(1)(b), where information is exempt if disclosure under the Act would, or would be likely to, prejudice relations between the UK and any international organisation or international court. As noted in Miss R. Patel's original response to your request, information you requested related to the exchange between the UK Government and the European Commission regarding Phorm.

Your e-mail of 17 August does not mention this exemption, but given that it covers such a large proportion of the material you requested, I have undertaken to reassess the public interest in disclosure, as section 27(1)(b) is a qualified exemption and so is subject to the public interest test. My feeling is that had you been aware that this exemption was the reason for withholding the majority of the information, you would have challenged the public interest test under section 27(1)(b).

Section 27: International Relations

As noted, under section 27(1)(b), information is exempt if disclosure under the Act would, or would be likely to, prejudice relations between the UK and any international organisation or international court. This is a qualified exemption and disclosure is therefore decided by a public interest test.

Arguments in favour of disclosure

The UK Government's exchanges with the European Commission over the use of Phorm technology has been the subject of media and public interest. Disclosure of this correspondence would serve to address this interest while clarifying the respective public bodies' positions.

Arguments against disclosure

Disclosure of this material would be likely to compromise the Government's maintenance of trust and confidence with the European Commission, which is essential for the effective conduct of business on European matters. Further, disclosure of this material would weaken the UK's ability negotiate in the European and international arenas and prejudice the free and frank exchange of advice. As such, the UK's ability to protect and promote its interests through international relations would be weakened.

I am afraid to say that, having weighed the public interest arguments for and against disclosure, I concur with the original decision to withhold all information covered by this exemption.

Section 35: Formulation of Government Policy

Having examined the remainder of the information, previously withheld under section 35(1)(a) of the Act, I can provide you with my decisions as to disclosure/non-disclosure and the exemptions under which information is to be withheld:

The rest of the documents are exempt under section 35(1)(a). While disclosure would contribute to the public understanding of the Government's position on this matter, and enhance transparency in policy formulation, disclosure would prejudice effective government in the form of the policy-making process. I am content that the weight of public interest favours withholding this information.

One document is not substantively covered by any exemptions. However, it relates to the communication of contact details for one particular individual. It would therefore have to be redacted before release in order not to contravene section 40(3)(a)(i), which states that information is exempt if it constitutes information where disclosure would contravene any of the data protection principles in the Data Protection Act 1998. Once redacted, the document would consist of a series of incomprehensible fragments, and so I have decided that it should not be released.

One document engages section 35(1)(a). Having conducted a public interest test I have decided that it is in the public interest to release the information. Names and contact details of officials in this e-mail have been redacted under section 40(3)(a)(i), as previously explained.

I enclose a copy of the information we are releasing under the Freedom of Information Act. The Ministry of Justice does not hold any further information that falls within the scope of your original request.

I realise that this response may be disappointing to you. I feel that the information disclosed will be of no great solace given its limited nature. However, I can assure you that this Internal Review has been carried out fully independently of the original response. I have tried to be as thorough as possible in examining the material, with a view to releasing information where possible, and I hope that this goes some way towards satisfying your request.

Should you remain dissatisfied after this internal review, you have the right of complain to the Information Commissioner, as established under section 50 of the Freedom of Information Act. You can write to him at:

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

Yours sincerely,

Chris Beal

Information Policy Division