Dear Mr White,

Re: Freedom of Information Request

Thank you for your email dated 23 March, clarifying the scope and interpretation of your freedom of information request. I am writing in response to this request for information in which you asked for:

“All information in relation to [the Government] responses to the [Phorm] European Infraction case, in September 2008, June 2009 and December 2009.”

Your request has been handled in accordance with the Freedom of Information Act 2000 (FOIA) as a request for information.

I can confirm that the department holds information within the scope of your request. Unfortunately, I am unable to disclose this to you as the information is exempt under the FOIA.

Before going into detail of the exemptions that have been applied, it might be helpful if I provide some further information about the background to the dates of the UK Government responses to the European Commission and a timeline of this exchange for your clarification.

As you may already be aware, the European Commission first wrote to the UK Government on 3 July 2008, raising their concerns about Phorm technology being used in the UK to which the Government responded on 11 September 2008. The Commission wrote again on 6 October 2008 and 28 January 2009 to which the UK Government responded on 13 November 2008 and 2 March 2009, respectively. On 14 April 2009, the European Commission issued a letter of formal notice of Infringement to the UK Government. The UK Government was asked to make its representations based on the preliminary arguments of the European Commission, and responded on 15 June 2009. Thereafter, on 29 October 2009, the European Commission issued their Reasoned Opinion letter and asked the UK to make further representations. After this letter was received, there was some further informal discussion with the European Commission in December 2009, and a formal response issued from the UK Government on 18 January 2010.

We are currently awaiting a response from the European Commission.

After careful consideration, I have decided that most of the information I have located is exempt from disclosure under section 27(1)(b) which applies to the disclosure of information that can affect international relations. In addition some of the information is also exempt under section 42(1) (Legal professional privilege) and 35(1)(a), which applies to the formulation of Government policy.

All three exemptions are qualified and so it is necessary to assess the balance of the public interest when deciding whether or not to disclose the information. This assessment is outlined in the paragraphs below.

Section 27: International Relations

Under section 27(1)(b) of the FOIA, information is exempt if disclosure under the Act would, or would be likely to, prejudice relations between the United Kingdom and any international organisation or international court. As mentioned above, section 27 is a qualified exemption and so is subject to a public interest test. I have taken the following factors into account:

Arguments in Favour of Disclosure

There has been considerable interest surrounding the exchange between the UK Government and the European Commission regarding Phorm technology. The release of this information might provide reassurance to the public that Government takes the privacy concerns surrounding this matter seriously and is fully engaged with the Commission. There has been some considerable interest in the operation of Phorm technology which has also attracted substantial public interest and prompted some concern.

Greater transparency in terms of how the Government is engaging with the European Commission on this issue could provide reassurances to the public and help build public confidence.

Arguments Against Disclosure

However effective conduct of international relations depends upon maintaining trust and confidence between states and international organisations. The disclosure of information relating to the UK's consideration of points raised by the European Commission and vice versa could undermine this trust and confidence.

Disclosing details about the content of formal and informal exchanges with the European Commission could inhibit the ability of the UK Government to engage openly and frankly with the European Commission. In addition it could potentially undermine the willingness of European Commission officials to engage in future discussions with the UK Government, where information being discussed in confidence was then later released.

Section 42: Legal Professional Privilege

The exemption in section 42(1) of the FOIA applies to information relating to legal professional privilege. This is a qualified exemption and therefore also subject to a public interest test:

Arguments in Favour of Disclosure

Part of the formulation of advice about Phorm technology, involved seeking legal advice. It is possible to argue that the release of this information would be in the public interest, as this would reassure the public that decisions taken by government are within a fully informed legal context. As you may be aware, the European Commission has taken an interest in Phorm technology for some time and these concerns have resulted in some formal exchanges. In light of this, being informed of which legal arguments are being deployed in the response to the Commission's Reasoned Opinion may help to inform the public about how the Government has reached their position.

Arguments Against Disclosure

However, disclosure of information relating to legal advice at this time has the potential to prejudice the Government's ability to defend its legal interests - both directly, by unfairly exposing its legal position to challenge, and indirectly by diminishing the reliance it can place on the advice having been fully considered and presented without fear or favour; neither of these outcomes are in the public interest. In addition, on 18 January 2010, the UK Government responded to the Reasoned Opinion Letter. The confidentiality of legal advice is crucial at this moment in time, as we are awaiting the European Commission's decision on the UK's response to the Reasoned Opinion which was heavily reliant on legal arguments and advice.

Section 35: Formulation of Government Policy

Under section 35(1)(a), the FOIA states that information is exempt if it relates to the formulation or development of government policy. Section 35 is a qualified exemption and is therefore subject to a public interest test:

Arguments in Favour of Disclosure

Disclosure could enable a greater understanding of the Government's views and actions regarding Phorm technology. Policy in this area is still being developed and the release of relevant information could help promote awareness of the issues that Government is currently considering and help the public to engage with this process.  It could also enhance transparency in how the Government makes policy decisions.

Arguments Against Disclosure

Good government depends on being able to rely on the best advice available and exploring thoroughly all of the potential options without fear that this consideration will be made public while the issue, or related matters, are still live.  Releasing the information you have requested at this stage while the issues in relation to Phorm are still ongoing, could reduce the fullness and clarity of advice and discussion. This would compromise the quality of Government's decision-making.

Further to this, you may be aware that the Crown Prosecution Service announced in March this year that it is still considering whether to allow a private prosecution of the Phorm technology and it would be inappropriate to disclose any information that might impact on this decision.

Having weighed up the considerations set out above, I believe the public interest is in favour of withholding the information under sections 27, 35 and 42.

As part of our obligations under the FOIA, the Ministry of Justice has an independent review process.  If you are dissatisfied with this decision, you can write to request an internal review.  The internal review will be carried out by someone who did not make the original decision, and they will re-assess how the Department handled the original request.  If the original decision was erroneous, a new decision can be substituted in its place. 

If you wish to request an internal review, please write or send an email to the Data Access and Compliance Unit within two months of the date of this letter, at the following address:

Data Access and Compliance Unit

Information Directorate

Ministry of Justice

6th Floor, 6.23

102 Petty France

London

SW1H 9AJ

E-mail: [email address]

If you remain dissatisfied after an internal review decision, you have the right to apply to the Information Commissioner's Office under Section 50 of the FOIA.  You can contact the Information Commissioner's Office at the following address:

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Internet:  https://www.ico.gov.uk/Global/contact_us.aspx

Yours sincerely

Miss R Patel