North Africa Team
King Charles Street
London
SW1A 2AH
www.fco.gov.uk
16 December 2009
Mr Bimmler
whatdotheyknow.com
By e-mail: [FOI #17694 email]
Dear Mr Bimmler
FREEDOM OF INFORMATION ACT REQUEST: 0738-09
On the 5 September you submitted a Freedom of Information request to the Foreign
& Commonwealth Office (FCO) asking for:
… access to all records held by the FCO in connection with the negotiations of a
Prisoner Transfer Agreement with the Great Socialist People’s Libyan Arab
Jamahiriya.
If … too large … restrict … to documents created in December 2007.
I am writing to advise you that following a full search of our paper and electronic
records I can confirm the Foreign and Commonwealth Office does hold some
information falling under the terms of your request. In keeping with the spirit and
effect of the Freedom of Information Act, all information is assumed to be releasable
to the public unless exempt. Please find attached a digest of the releasable
information.
Some of the information you requested is being withheld as it falls under the
exemptions in sections 27, 28, 36, 40 and 42 of the Freedom of Information Act:
http://www.justice.gov.United Kingom/guidance/freedom-of-information.htm. Section 27 (1) & 27 (2) – International Relations
Section 27(1)(a) and (2) of the FOIA recognises the need to protect information that
would be likely to prejudice relations between the United Kingdom and other states.
In this case, the release of information about relations between the United Kingdom
and Libya and the US would be likely to harm our relations with both States. The
application of sections 27(1)(a) and (2) requires us to consider the public interest test
arguments in favour of releasing and withholding the information.
We acknowledge that releasing information on this issue would increase public
knowledge about our relations with Libya and the US. But section 27(1)(a)
recognises that the effective conduct of international relations depends upon
maintaining trust and confidence between governments and organisations. If the
United Kingdom does not maintain this trust and confidence, its ability to protect and
promote the United Kingdom’s interests through its international relations will be
hampered, which will not be in the public interest. The disclosure of information
detailing our relationship with the Libyan and US Governments could potentially
damage the bilateral relationship. We also considered under section 27(2) the
impact that releasing the information would have on the effective conduct of
international relations in maintaining trust and confidence between Governments.
This relationship of trust allows for the free and frank exchange of information on the
understanding that it will be treated in confidence. If the United Kingdom does not
respect such confidences, its ability to protect and promote the United Kingdom’s
interest through its international relations will be prejudiced. Libya and the US may
be more reluctant to share sensitive information with the United Kingdom
Government in future and may be less likely to respect the confidentiality of
information supplied by the United Kingdom Government, to the detriment of the
United Kingdom’s interests. This would reduce the United Kingdom government's
ability to protect and promote its interests which again would not be in the public
interest. For these reasons we consider that the public interest in maintaining these
exemptions outweighs the public interest in disclosing it.
Section 28 – Relations within the United Kingdom
Section 28 (1) of the FOIA recognises the need to protect information that would be
likely to prejudice relations between two or more administrations in the United
Kingdom. In this case, the release of information about relations between the United
Kingdom and the Scottish Executive could harm relations between us. The
application of section 28 requires us to consider the public interest test arguments in
favour of releasing and withholding the information.
We acknowledge that releasing information on this issue would increase public
knowledge about how the UK Government and Scottish Executive work together.
But section 28 (1) recognises that the devolution settlement relies on an atmosphere
of trust, co-operation, sharing information and respect between the four
administrations. The Memorandum of Understanding between the four
administrations makes it clear there is a strong commitment to freedom of
information whilst respecting confidential information between bodies. If the UK
Government does not maintain this trust and confidence, there may be a resulting
breakdown in relations which would compromise the effectiveness of the settlement.
The disclosure of information detailing our working relationship with the Scottish
Executive could potentially result in a breakdown of relations between us, which we
consider would not be in the public interest.
Section 36 – Prejudice to effective conduct of public affairs
Some of the information you have requested is exempt under section 36 (2) (b) (i) &
(ii) of the FOIA. It is the opinion of an FCO Minister that the disclosure of this
information would be likely to inhibit the free and frank provision of advice and the
free and frank exchange of views for the purposes of deliberation. This exemption
requires the application of a public interest test. We acknowledge that there is a
strong public interest in open and accountable government. However, there is a
strong public interest in protecting the space Ministers and officials have to consider
and discuss options, to ensure that full and proper consideration to policy is given.
The candour of contributions to this process would be likely to be affected by
officials’ assessment of whether the content of such discussion could be disclosed in
the near future. This would have a negative impact on the quality of decision making,
which is clearly not in the public interest. For these reasons, we consider that the
public interest in withholding this information outweighs the public interest in release.
Section 40 – Personal information
Some of the data you requested constitutes personal information under Section 40 of
the FOIA, the disclosure of which would contravene one of the data protection
principles. In such circumstances, Section 40 (2) and (3) of the FOIA applies. In this
case, our view is that disclosure would breach the first data protection principle. This
states that personal data should be processed fairly and lawfully. It is the fairness
aspect of this principle which, in our view, would be breached by disclosure. In such
circumstances, Section 40 confers an absolute exemption on disclosure. Only the
names of public figures have been included.
Section 42 (1) – Legal professional privilege
Some of the information relating to this case is exempt under Section 42 (1) of the
FOIA. Section 42 is a qualified exemption. We have considered the public interest
arguments both for and against disclosure. For disclosure are the arguments that the
public will be able to see that advice has been taken, and also be able to assess the
quality of that advice. However, in favour of withholding the information is the
weighty argument that legal professional privilege (LPP exists in order to encourage
clients to be frank and open with their legal adviser, secure in the knowledge that
those communications will not be disclosed without their consent. It is important that
the government is able to seek legal advice so that it can make its decisions in the
correct legal context. The legal adviser must be in possession of all material facts in
order to provide sound advice. The government must, therefore, feel confident that it
can disclose all relevant facts to its legal adviser. It must be able to do so without
fearing that this information will be disclosed to the public. In turn, the legal adviser
will consider the issues and the arguments and weigh up their relative merit. For
these reasons, the FCO believes that the public interest in maintaining these
exemptions outweighs the public interest in disclosure.
The information supplied to you continues to be protected by the Copyright, Designs
and Patents Act 1988. You are free to use it for your own purposes, including any
non commercial research you are doing and for the purposes of news reporting. Any
other reuse, for example commercial publication, would require the permission of the
copyright holder. Most documents supplied by the Foreign and Commonwealth
Office will have been produced by government officials and will be Crown Copyright.
You can find details on the arrangements for re-using Crown Copyright on the Office
of Public Sector Information (OPSI) Online at:
http://www.opsi.gov.uk/
Information you receive which is not subject to Crown Copyright continues to be
protected by the copyright of the person, or organisation, from which the information
originated. You must ensure that you gain their permission before reproducing any
third party (non Crown Copyright) information.
If you are unhappy with the service you have received in relation to your request and
wish to make a complaint or request a review of our decision, you should contact me
within 40 days of receipt of this letter.
If you are not content with the outcome of your complaint, you may apply directly to
the Information Commissioner for a decision. Generally, the ICO cannot make a
decision unless you have exhausted the complaints procedure provided by the
Foreign & Commonwealth Office. The Information Commissioner can be contacted
at: The Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF.
Please contact me if you have any queries about this letter.
Yours sincerely
Emily
Emily Summers
Open Government Liaison Officer
North Africa Team
Data Protection Act 1998
The FCO processes personal data as notified to the Information Commissioner
(www.informationcommissioner.gov.United Kingdom) for the purpose of working for
the United Kingdom’s interests in a safe, just and prosperous world. Such personal
data may be shared with other United Kingdom Government Departments and public
authorities.
