Information Management
Directorate
Information Access Policy Team
Lunar House
40 Wel esley Road
Croydon
CR9 2BY
Ganesh Sittampalam
Fax 020
8196
3172
[FOI #26925 email]
Web www.ukba.homeoffice.gov.uk
4 March 2010
Ref: 13754
Dear Mr Sittampalam
Thank you for your email of 14 January 2010 in which you requested information regarding
all records, internal and external correspondence relating to a previous Freedom of
Information request which you submitted. Your request has been dealt with under the
Freedom of Information Act 2000.
You made the following request:
Please send me a copy of all records and internal and external correspondence relating to
Freedom of Information request 8426-4695466 ("Baroness Scotland investigation").
I can confirm that UKBA holds information that you have requested. However, I am unable
to disclose it to you (with the exception of personal data about yourself). After careful
consideration we have decided that this information is exempt from disclosure by virtue of
Sections 36(2)(b)(i) and (i ) and 36(2)(c) of the Freedom of Information Act. These provide
that information can be withheld where disclosure would inhibit the free and frank provision
of advice [s36(2)(b)(i)], and exchanges of views for the purpose of deliberation [s36(2)(b)(i )].
In addition as release would otherwise prejudice the effective conduct of public affairs it is
also exempt under s36(2)(c).
A detailed explanation for the application of these exemptions is contained in the annex to
this letter, together with details of our complaints process. In particular it is noted that your
request for an internal review of the handling of your earlier FOI request (12682) is stil
ongoing. Given the ongoing nature of the internal review, the original request is stil ‘live’. As
a result it has been decided in this instance that disclosure of the information you requested
would be prejudicial. Section 36 is a qualified exemption meaning that an assessment of the
public interest test must be undertaken in advance of taking a decision about whether the
information should be disclosed or withheld. In this case we consider that disclosure is not in
the public interest. It is for these reasons that your request in relation to non-personal data
has been refused under section 36 of the FOI Act.
Any personal data contained within the papers relating to people other than you is exempt
from disclosure under section 40(2) of the FOI Act. This includes the personal data of other
requesters and junior Home Office officials. The release of such information would breach
the Data Protection Act (DPA) and is therefore exempt from disclosure.
You do have a right however to request personal data about yourself under the subject
access provisions of the Data Protection Act (DPA) 1998 (such information cannot be
supplied in response to an FOI request under section 40(1) of the Act). To submit a Subject
Access Request (SAR) you must provide:
• a cheque or postal order for £10, payable to 'The Home Office Accounting
Officer'; and
• sufficient personal information to enable us to uniquely identify you - for example,
a copy of your passport or driver's licence, original utility bil s, and your Home
Office reference number if you have one.
Sould you wish to submit an SAR, please send the above fee and proof of identity to:
DPU SAR
15 Wel esley Road
Croydon
Surrey
CR9 2AR
Yours sincerely
O. Awosanya
Information Access Policy Team
UK Border Agency
Annex A
CONSIDERATION OF THE USE OF SECTION 36
Some of the information you have requested is exempt from disclosure under Section
36(2)(b)(i) & (ii) and (c) of the Freedom of Information Act 2000. Information to which this
section applies is exempt information if, in the reasonable opinion of a qualifed person,
disclosure of this information under the Act would or would be likely to inhibit the free and
frank provision of advice; the free and frank exchange of views for the purposes of
deliberation; and would otherwise prejudice or would be likely to prejudice, the effective
conduct of public affairs.
We believe that in this case disclosure of the information concerned into the public domain
would inhibit the free and frank provision of advice and the free and frank exchange of views
for the purposes of deliberation, in relation to the handling of FOI requests. It is important the
public authorities can analyse and consider requests comprehensively so that information is
released where it is appropriate to do so, in the public interest. Our ability to do this would be
harmed by disclosure, especially where the original request or subsequent internal review
was still under consideration. In addition, disclosure of the information would prejudice the
effective conduct of public affairs. This is because it would adversely affect the effectveness
of FOI processes and seek to circumvent the robust appeal mechanism contained within the
legislation. This appeals process is the most effective and proper vehicle for seeking redress
where applicants are disatissfied with the handling of their orginal request(s). The degree
of harm is exacerbated in this case owing to its young age, and the fact that the original
request remains live (albeit it at internal review).
CONSIDERATION OF THE PUBLIC INTEREST BALANCING TEST
We have considered the public interest there may be in the circumstances of this case in
disclosing all the information relating to the deliberation of your FOI request. There is a
strong public interest in disclosing information which ensures that there is transparency in the
way in which government operates, in this case in relation to the handling of FOI requests.
In addition, knowledge that the arguments relating to a debate wil be disclosable, could in
fact improve the quality of those arguments. While the information you have requested would
primarily be of interest to you, there is no doubt that there is a wider public interest in
disclosure given the insights into the operation of FOI within the Home Office that it would
provide.
We have also considered the public interest there may be in maintaining the exemption to
the duty to communicate. I have outlined above the harm that would be caused in this case
by releasing the information that you have requested at the current time. There is a strong
public interest in ensuring that Ministers and their officials are able to think through al the
implications of particular options. In particular they need to be able to undertake rigorous
and candid assessments, as in the case of deliberating your request regarding Baroness
Scotland and the investigation of her former cleaner. Ministers and officials need to be able
to consider and discuss all options, and to expose their merits and demerits, and their
possible implications. Their candour in doing so will be affected by their assessment of
whether the context of their discussions wil be disclosed in the near future, when suggested
ideas or options had been subsequently dismissed or ruled out.
It is also in the public interest that FOI processes operate as effectively as possible, to
ensure that requests are dealt with appropriately and that timely responses are issued. I fully
accept that your initial request was not dealt with as speedily as it should have been, and I
apologise for this. Nonetheless, is it not in the public interest that the effective operation of
the FOI Act is hampered by requests designed to circumvent the official appeals mechanism
while that appeals process is ongoing.
We have considered whether in all the circumstances of the case the public interest in
maintaining the exemption outweighs the public interest in disclosing the information. We
have concluded that the balance of the public interest currently lies in favour of maintaining
the exemption. The public interest balancing test favours withholding this information as the
greater public interest lies in maintaining the integrity of how government makes decisions of
this nature. This process would be undermined as the free and frank exchanges of views
would be discouraged, affecting similar discussions in the future which would clearly not be
in the public interest where issues regarding UKBA investigations are concerned. The critical
factor in reaching this conclusion is the timing of this request. If the request was no longer
live the balance of the public interest would be likely to be different.
Annex A – Complaints
If you are dissatisfied with this response you may request an independent internal review of
our handling of your request by submitting a complaint within two months to the address
below, quoting reference 13754. If you ask for an internal review, it would be helpful if you
could say why you are dissatisfied with the response.
The Deputy Director
UK Border Agency
Freedom of Information Team
11th Floor
Lunar House
40 Wel esley Road
Croydon CR9 2BY
e-mail: [UKBA request email]
As part of any internal review the Department's handling of your information request wil be
reassessed by staff who were not involved in providing you with this response. If you remain
dissatisfied after this internal review, you would have a right of complaint to the Information
Commissioner as established by section 50 of the Freedom of Information Act.
