Information Access Team
Shared Services Directorate
2 Marsham Street, London SW1P 4DF
Switchboard 020 7035 4848
E-mail: [email address] Website: www.homeoffice.gov.
Mr Peter John
[FOI #15620 email]
2 March 2010
Our Ref: 12563
Dear Mr John
I am writing further to my previous e-mail, about your request for an internal
review of our response to your Freedom of Information (FoI) request about
documents acknowledged by the Director of Public Prosecutions to have been
leaked to Damian Green MP by Christopher Galley. I am sorry for the delay in
responding.
I have now completed the review. I have examined all the relevant papers,
including the information that was withheld from you, and have consulted
those involved in the provision of the original response. I have considered
whether the correct procedures were followed and assessed the reasons why
information was withheld from you. I confirm that I was not involved in the
initial handling of your request.
I have decided that the original decision to withhold the information from you
under the exemptions contain in sections 31(2)(b) and 36(2)(c) of the FoI Act
was correct. I have little to add to the original response, in which the use of
these exemptions was explained very thoroughly. However I clarify, given
points raised in your internal review request, issues around their application.
In relation to section 31(2)(b) you made a point about the investigation into Mr
Galley’s conduct having been concluded. Irrespective of this the exemption
applies given the likelihood of harm being caused to any future investigations
of a similar nature.
You also made reference to Director of Public Prosecutions’ (DPP) comments
about the sensitivity of the leaked documents. The DPP’s view that the
information was not “highly” sensitive does not mean that it was trivial, and
does not weaken our application of section 36(2)(c) in this case for the
reasons given previously.
In addition I have decided to withhold the names of junior officials referred to
in these documents under section 40(2) of the FoI Act on the basis that
disclosure would constitute a breach of the Data Protection Act. A full
explanation of the application of section 40(2) can be found at Annex A.
This completes the internal review process by the Home Office. If you remain
dissatisfied with the response to your FoI request the Information
Commissioner, with whom I understand you have already been in touch about
this case, wil consider it further.
Yours sincerely
Diana Pottinger
Information Access Team
Annex A Section 40(2)
The exemption
The names of individual officials contained in other information relevant to this
request are those people’s personal data. Personal data can only be
disclosed where release is compatible with the provisions of the Data
Protection Act (DPA). Unless disclosure can be made in compliance with the
provisions of the DPA it is exempt from disclosure under the exemption
contained in section 40(2) of the FoI Act.
Junior officials working for the Home Office have no expectation that their
names wil be released into the public domain through there work for the
department, where their roles are not public facing. More senior officials have
more of an expectation that their identities wil enter the public domain given
their seniority, and the fact that their individual involvement in a subject is
more relevant that that of one of a number of more junior staff. For this reason
the disclosure of junior officials’ names is “unfair” within the meaning of the
DPA, and is therefore not compliant with the first data protection principle’s
requirement that all processing of personal data must be “fair and lawful”.
Therefore section 40(2) applies to the names of junior (but not senior)
officials.
Annex B – Section 36(2)(c)
The Exemption
‘36(2) Information to which this section applies is exempt information if, in the
reasonable opinion of a qualified person, disclosure of the information under
this Act-
(c) would otherwise prejudice, or would be likely otherwise to prejudice, the
effective conduct of public affairs.’
Engagement of the exemption
The release of information which has been acknowledged as being leaked would
result in prejudice to the effective operation of the Department. Indeed in his decision
the DPP recognises the damage that leaks in general do to the functioning of a
government department. In paragraph 30 the DPP states:
‘The integrity of the Home Office arrangements for handling restricted and/or
confidential information was breached. That caused damage to the proper
functioning of the Home Office, which was exacerbated by the prolonged period of
the alleged leaks, the on-going relationship between Mr Galley and Mr Green and the
sensitivity of the material to which Mr Gal ey had access.’
The release of the requested information would serve to partly legitimise the
actions of those involved in the leaking of information. The series of leaks
alluded to the original request had the potential to damage the integrity of the
Department and its ability to fulfil its core objectives. The documents that were
leaked were prepared by officials for Ministers. They contained a free and
frank appraisal of a variety of areas related to the remit of the Home Office.
They were prepared in the expectation that the information contained within
them would not be prematurely (and certainly not il egitimately) released in to
the public domain. It is vital for the proper functioning of government that
Ministers are able to seek free, frank and candid advice from officials, and that
this can be provided in an environment in which proper debate and discussion
can be had. In essence, Ministers and officials need to have the private space
to ‘think the unthinkable’. It is only through such debate that potential impacts
of policy decisions can be properly weighed up. This series of leaks adversely
affected the operation of the space in which such a debate could take place,
and thereby impeded the proper functioning of the Home Office.
The release of the six documents relevant to this request would have the clear
effect of legitimising the actions of those who leaked the information. Such a
release may serve to encourage those who may be thinking of leaking
information to do so. The unauthorised release of government information can
damage confidence in government and its ability to fulfil its priorities.
The outcomes described above would also affect the reputation and
impartiality of the civil service. The impartiality and quality of advice to
Ministers is a hallmark of the British civil service. There are well established
procedures, laid out in the civil service code, for officials to follow if they have
a grievance or concern. The il icit leaking of information can never be
condoned and wil risk damaging the proper functioning of HMG
Considerations Favouring Disclosure
There is a general consideration favouring openness and transparency in
government. It is generally accepted that government should be as
transparent as possible. Releasing information is likely to ensure the public
are better informed about issues of concern or general interest. Such an
outcome is therefore likely to result in a better quality of debate, which would
be clearly beneficial to government and therefore in the wider public interest.
Considerations Favouring Non-Disclosure
The considerations favouring disclosure must however be balanced against
those considerations favouring non-disclosure. I have outlined above the
harm that would be caused by disclosure and which is, subject to your
agreement, sufficient to engage the exemption in section 36(2)(c) of the FOI
Act. These include the need to protect the integrity and the effective operation
of the Department. Additional considerations include the need to prevent the
legitimisation of actions which are damaging to the integrity of the Department
and the public’s confidence in its work.
The release of this information would serve to partly legitimise the actions of
those involved in the leaking of information, and are therefore may encourage
further leaks. It is not in the public interest, given the damage that leaks cause
(and that the DPP acknowledged that these particular leaks did cause) to
encourage or legitimise the practice of leaking information. Even though the
DPP stated that the leaked documents in this case were not “highly”
confidential that is not to say that the information within them was not worthy
of protection. It was certainly in no way trivial and the leaking of information of
this type was harmful to the effective conduct of public affairs.
For the reasons described above I am satisfied, that the exemption is
engaged, that the public interest in non-disclosure currently outweighs the
public interest in disclosure of this information.
