Internal review of response to request under the Freedom of
Information (FoI) Act 2000 (the Act) by UKBA (reference 13754)
Responding Unit: United Kingdom Border Agency
Chronology
FoI request received by UKBA: 14/01/10
Request acknowledged: 14/01/10
UKBA response: 04/03/10
Request for internal review: 04/03/10
Subject of request
1. On 14 January 2010 Mr Sittampalam (the applicant) submitted a FoI
request to UKBA seeking disclosure of
“all records and internal and
external correspondence” relating to UKBA’s handling of a previous
FoI request (UKBA Ref: 12862) submitted by Mr Sittampalam on 23
September 2009. The original text of FoI request 12862 is included at
Annex A.
2. Mr Sittampalam clarified his request of 14 January 2010 by outlining
the particular format that he required UKBA to adopt when providing
a response to his enquiry.
3. Specifically Mr Sittampalam stated that he wished any redactions to
be kept to an ‘
absolute minimum’ and furthermore that he be provided
with not only the content of requested documents, but also
information as to when such work was undertaken. Additionally, Mr
Sittampalam also requested that he be provided with an indication of
the seniority of the individuals involved in the handling of his request
in the eventuality that it was not seen to be possible to disclose the
identity of such parties.
The response by UKBA
4. On 4 March 2010 UKBA responded to Mr Sittampalam. The response
served to outline that whilst the requested information was held, it
would not be communicated as it was seen to be exempt from
disclosure pursuant to engagement of the exemptions under section
36 (2) (b) (i), section 36 (2) (b) (i ), section 36 (2) (c) and section 40
(2) of the Act. These exemptions are detailed in full in
Annex B.
5. As the exemptions under section 36 (2) (b) (i), section 36 (2) (b) (i )
and 36 (2) (c) constitute qualified exemptions, the requisite public
interest balancing arguments for such were then outlined to Mr
Sittampalam. Both the arguments for and against disclosure of the
requested information were stated and assessed. It was concluded
however that in this instance the public interest favoured upholding
the exemptions engaged and withholding the requested information
from disclosure.
6. In the case of the absolute exemption under section 40 (2) of the Act,
Mr Sittampalam was informed that UKBA policy prohibited the
disclosure, to a third party, of personal information of another
individual. It was stated that disclosure of the material requested
would breach the Data Protection Act, 1998, (DPA) on the grounds
that such was seen to contain the personal details of other FoI
requestors as well as junior Home Office officials.
7. As the exemption at section 40 (2) is an absolute exemption no public
interest considerations were stated.
Mr Sittampalam’s request for internal review
8. On 4 March 2010 Mr Sittampalam requested an internal review into
the handling of his FoI request.
9. In addition to challenging the outcome of his initial FoI request, Mr
Sittampalam also stated dissatisfaction with two further aspects of the
UKBA response, namely:
(i)
That the identity of the ‘qualified party’ who authorised the
engagement of the exemptions under section 36 of the Act
was not disclosed.
(i )
That no consideration appeared to have been given to his
request that UKBA respond to him in the manner detailed in
points 2 – 3 of this review.
Procedural issues
10. Mr Sittampalam’s request is recorded as having been received by
UKBA on 14 January 2010. Accordingly the deadline for responding
to such was calculated to be 11 February 2010.
11. Formal acknowledgement of Mr Sittampalam’s FoI request was made
by UKBA on 14 January 2010.
12. On 12 February 2010 UKBA contacted Mr Sittampalam to inform him
that due to the nature of material requested it would be necessary to
consider the engagement of qualified exemptions under section 36 of
the Act to such.
13. UKBA informed Mr Sittampalam that under section 10 (3) of the Act a
further 20 working days may be granted to a public body in order to
conduct the requisite public interest considerations entailed by the
engagement of a ‘qualified’ exemption. The revised deadline for
responding to Mr Sittampalam was stated as being 11 March 2010.
14. Whilst I am satisfied that UKBA were correct to inform Mr
Sittampalam of the intention to extend the response deadline by
reference to section 10 (3) of the Act, I must note that this clarification
was provided following expiration of the initial deadline of 11 February
2010. Though only in excess of such by one working day, this
oversight nonetheless constitutes a technical breach by UKBA of
section 10 (1) of the Act.
15. As previously noted, the final response to Mr Sittampalam’s request
was dispatched by UKBA on 4 March 2010.
16. It is noted that the response then provided served to satisfactorily
discharge section 1 (1), section 17 (1) (a) and section 17 (1) (b) of the
Act. Specifically, Mr Sittampalam was informed that the requested
information was held by UKBA, but would not be communicated to
him, with detailed reasons being given as to why such was the case.
17. I am satisfied that the response of 4 March 2010 informed Mr
Sittampalam in writing of his right to request an independent review of
the handling of his request as allowed for in section 45 (2) (e) of the
Act.
18. I am further satisfied that Mr Sittampalam was informed in writing of
his right of complaint to the Information Commissioner as required by
section 50 of the Act.
Consideration of the response
19. As noted in point 4 of this review,
on 4 March 2010 UKBA responded
to Mr Sittampalam’s enquiry by informing him that although the
requested information was held, such would not be communicated to
him on the grounds that multiple exemptions of the Act were
engaged.
20. I wil now examine whether the response by UKBA was satisfactory
with regards to whether the exemptions cited were correctly engaged
and furthermore whether any corresponding public interest balancing
exercises were properly conducted.
Engagement of the exemption under section 36 of the Act
21. The UKBA response of 4 March 2010 stated to Mr Sittampalam that it
was believed that multiple limbs of the exemption under section 36 of
the Act were engaged with regards to the information he had
requested.
22. These limbs were identified as being section 36 (2) (b) (i), section 36
(2) (b) (i ) and section 36 (2) (c); more commonly known as,
‘inhibition
of free and frank advice’, ‘
inhibition of free and frank advice for the
purposes of deliberation’ and
‘prejudice to the effective conduct of
public affairs’.
23. These three limbs of the exemption under section 36 between them
address two broadly distinct issues; that of inhibition being likely to
occur to the provision of advice, and that of prejudice being likely to
occur to the effective conduct of public affairs.
24. It should be noted that the arguments for engaging these dual
aspects of the section 36 exemption must be substantively distinct.
Though both overlap, in so much as they relate to specific concerns
raised within the context of the consideration of Mr Sittampalam’s
former FoI request, they must nonetheless be articulated separately
with clear reasons being advanced as to why such are seen to be
engaged.
25. To this extent I am satisfied that the response of 4 March 2010
sufficiently demonstrated distinct arguments and reasoning as to why
the varying limbs of the exemption under section 36 were seen to be
engaged.
26. Accordingly, on consideration of the arguments outlined by UKBA in
the response of 4 March 2010, and establishment that the material
requested by Mr Sittampalam is seen to constitute information
detailing the consideration and discussion of a previous FoI request, I
am content that limbs (2) (b) (i), (2) (b) (i ) and (2) (c) of the section 36
exemption were correctly engaged.
Public interest considerations entailed by the exemption under section 36 of
the Act
27. Having established that the exemptions under section 36 (2) (b) (i),
section 36 (2) (b) (i ) and section 36 (2) (c) are indeed engaged with
regard to the requested information, the issue then is whether the
requisite public interest considerations favour upholding the stated
exemptions.
28. Having examined carefully the UKBA response of 4 March 2010 it is
my determination that the public interest arguments advanced both
for and against disclosure of the requested information are
comprehensive, well structured and logically compelling.
29. Specifically, the range of arguments expressed are seen to have
adequately addressed the fundamental tension between the two
positions; namely that of providing a balanced assessment of the
competing merits of disclosing into the public domain details of the
‘mechanism’ by which government departments (namely UKBA)
determine how best to respond to FoI requests and subsequent
appeals.
30. I concur with UKBA that there are strong arguments to be made as to
the advantage of transparency and accountability that might be
secured by disclosure of the requested information. Furthermore I
also recognise the general public interest that exists regarding the
manner in which UKBA discharges FoI requests pertaining to high
profile matters such as the investigation of the Attorney General,
Baroness Scotland of Asthal.
31. However it is my determination, in this specific instance, that these
considerations are outweighed by the necessity to ensure that UKBA
are able to consider, debate and robustly assess the suitability of
information that might potentially be disclosed into the public domain
without concern that their discussions around such wil be subject to
public scrutiny before the appropriate consultation period has
elapsed.
32. This argument is not advanced prima facie, but rather with explicit
reference to the further consideration that the timing and nature of the
material requested by Mr Sittampalam, entails.
33. As was expressed by UKBA in the response of 4 March 2010, Mr
Sittampalam had already initiated an internal review of the handling of
his previous FoI request (Ref: 12862); submitted with the expressed
intent of assessing the substance and procedural correctness of the
handling of such.
34. The argument made by UKBA is therefore that the exemptions under
section 36 were seen to be upheld not simply because Mr
Sittampalam had submitted an FoI request concerned with the
handling of a previous FoI request, but rather because a request of
such scope was submitted whilst an internal review of the handling of
the initial request was already ongoing.
35. Accordingly, with particular reference to limbs (2) (b) (i) and (2) (b) (i )
of the exemption under section 36, the free and frank exchange of
ideas and the free and frank exchange of ideas for the purposes of
deliberation would likely be inhibited in the respect that the premature
disclosure of such candid information would serve to adversely affect
the frankness with which officials communicate during the ongoing
appeal process.
36. On these grounds therefore, I am satisfied that UKBA correctly
engaged the exemption under section 36 of the Act and furthermore
sufficiently demonstrated that the public interest favoured the
decision not to communicate to Mr Sittampalam the information he
had requested.
Section 40 (2)
37. The UKBA response of 4 March 2010 stated that the exemption
under section 40 (2) of the Act was engaged on the grounds that the
disclosure of the requested material would entail the unwarranted
release, to a third party, personal information about another person.
38. As the UKBA response outlined, the requested documentation was
seen to include detailed discussions regarding FoI requests
submitted by individuals other than Mr Sittampalam as well as the
personal details of junior Home Office officials.
39. It was subsequently stated to Mr Sittampalam that whilst he had the
right to request personal data about himself contained in the specified
documentation, the disclosure of personal data pertaining to other
parties would not be possible as such would breach UKBA’s
departmental obligations under the Data Protection Act, 1998 (DPA).
40. Consequently, for the reasons outlined above I am satisfied that the
exemption at section 40 (2) of the Act was correctly applied.
41. As the exemption at section 40 (2) of the Act is an absolute
exemption no public interest considerations apply.
42. It is to be noted however that UKBA failed to specify precisely why
the Data Protection Principles would be breached were the requested
information disclosed. This is noted to constitute a breach of section
17 (1) (c) of the Act. It may be presumed however that UKBA
intended reference to ‘fair and lawful processing’ as defined within
section 1 of schedule 1 of the DPA.
43. However, I am content that the material requested is exempt from
disclosure under the exemption at section 40 (2) of the Act. This
contention is advanced on the grounds that the material in question is
considered to be personal data, the disclosure of which is not seen to
be warranted by any condition under schedule 2 of the DPA.
Response to issues raised by Mr Sittampalam in request for internal
review
44. I shall now address the further issues raised by Mr Sittampalam in his
internal review request of 4 March 2010. The nature of these further
issues are detailed in points 9 (i) and 9 (i ) of this review.
45. With respect to the matter outlined at point 9 (i), UKBA are not
obliged to disclose to Mr Sittampalam the identity of the qualified
person on whose reasonable opinion the exemption under section 36
of the Act was engaged.
46. However, it may be noted that subsection (5) (a) of the exemption
under section 36 specifies that in order for the exemption under
section 36 to be engaged to information held by a government
department, it is necessary that the qualified person must be a
Minister of the Crown.
47. Having examined documentation addressing this matter I can confirm
to Mr Sittampalam that this requirement was satisfactorily discharged.
48. With respect to the matter outlined at point 9 (i ), it may be concluded
that the UKBA response of 4 March 2010 was intended to tacitly
address the arguments raised by Mr Sittampalam in his initial
request.
49. I appreciate that it might have been helpful to Mr Sittampalam if he
had been provided with a detailed explanation as to why it was it felt
that his suggested approach to responding to his FoI request was not
appropriate.
50. However it is my determination that the response provided by UKBA,
and the arguments advanced within the context of such, may be seen
to subsume within them the concerns raised by Mr Sittampalam in his
initial FoI request.
51. As already stressed, the decision taken by UKBA was based on
awareness of the internal review of Mr Sittampalam’s previous FoI
request (Ref: 12862) being live at the time. Accordingly as outlined in
points 31 – 36 of this review to disclose
any material relevant to such
whilst it was stil being conducted was firmly believed as to be likely to
inhibit the intended function of such.
Advice and assistance
52. Having considered the body of correspondence between UKBA and
Mr Sittampalam it is my determination that UKBA satisfactorily
discharged their obligations with regard to section 16 (1) and section
16 (2) of the Act.
53. Specifically, in their correspondence with Mr Sittampalam, UKBA are
noted to have complied with all relevant requirements of the
Secretary of State’s code of practice as outlined in section 45 of the
Act.
Conclusion
54. Regarding procedural issues, it may be concluded that UKBA did not
fully satisfy its statutory obligations with regard to the time taken to
resolve Mr Sittampalam’s request. By failing to inform Mr
Sittampalam within 20 working days that additional time would be
required to consider the application of a qualified exemption to the
requested material UKBA are seen to stand in breach of section 10
(3) of the Act.
55. However, it is noted that when a response to Mr Sittampalam’s
request was forthcoming it was provided within the limit of the
extended deadline outlined to him by UKBA in the correspondence of
12 February 2010.
56. Concerning the substance of the response provided to Mr
Sittampalam, it may be concluded that UKBA satisfactorily
discharged their statutory obligations under the Act. UKBA informed
Mr Sittampalam that certain relevant information was held and
furthermore the reasons why such material was exempt from
disclosure.
57. Specifically, it is my determination that the exemptions under section
36 (2) (b) (i), section 36 (2) (b) (i ), section 36 (2) (c) and section 40
(2) of the Act cited to Mr Sittampalam in the response of 4 March
2010 are seen to have been correctly engaged at this point in time. In
addition, the public interest tests required under section 36 of the Act
are seen to have been correctly conducted.
Robert Clifford
Information Access Team
7 April 2010
Annex A
Original text of FOI request 12862
Dear UK Border Agency,
Please pass this on to the person who conducts Freedom of
Information reviews.
I am writing to request an internal review of UK Border Agency's
handling of my FOI request 'Baroness Scotland investigation'.
I do not agree with your application of either exemption and I
refer you to the comments about these exemptions in my initial
request, which you have not addressed.
I am also unhappy about the huge length of time it took you to
respond to the request and would like a proper explanation for why
it happened and details of what you are doing to prevent a
recurrence, especial y given your past failures to deal with FOI
requests in a timely fashion.
A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/baroness_scotland_investigation
Yours faithfully,
Ganesh Sittampalam
Annex B
Exemptions cited in UKBA response of 4 March 2010
Section 36 exemption: Prejudice to effective conduct of public affairs
(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—
(b) would, or would be likely to, inhibit—
(i) the free and frank provision of advice, or
(i ) the free and frank exchange of views for the purposes of
deliberation, or
(c) would otherwise prejudice, or would be likely otherwise to prejudice,
the effective conduct of public affairs.
Section 40 exemption: Personal information
(2) Any information to which a request for information relates is also exempt
information if—
(a) it constitutes personal data which do not fall within subsection (1),
and
(b) either the first or the second condition below is satisfied.
