BERR Ref 01.04.05.3874C

YourRef

Patrick Seurre [mailto:[FOI #3020 email]]

15 October 2008

Dear Mr Seurre

Freedom of Information request 08/00617

I refer to your request below dated 17 September 2008 made under the Freedom of Information Act 2008.

BERR have recently responded to the EU commissions request for

information on the potentially illegal trials undertaken by phorm

and BT, however it would appear that BERR have chosen to not fully

release the contents of this reply.

Please could you provide a copy of the entire response that was

provided to the EU commission.

I can confirm that the Department does hold a copy of such a letter. However, the information contained in the letter is being withheld as it is exempt by application of sections 27 and 35 of the Freedom of Information Act 2000.

Section 27 (1) (b) exempts information if its disclosure would, or would be likely to prejudice, relations between the United Kingdom and any international organisation. This would include, for example, the European Commission. Section 35 (1) (a) provides that information is exempt if it relates to the formulation or development of government policy. It is important to consider the effect of disclosure and to weigh that against the public interest in withholding the information.

In relation to the balance of the public interest, the prejudice that would be caused to relations between United Kingdom and the European Commission is a material factor, as is the important part that this information plays in the free and frank process of policy formulation, which would be likely to be inhibited by disclosure. It is also very much in the public interest that the UK Government can take account of the views of the European Commission in its continuing policy discussions and that this is not inhibited by premature disclosure of these views. If this correspondence were less candid in the future, its value would be reduced and the policy formulation process would be less informed. Furthermore, it is important to take account of the context in which this correspondence arises. The process by which the European Commission corresponds with its member states is a bilateral iterative process in which the European Commission is able to express any concern it has about the implementation of European law in the State, and the Member State is able to set out, in an equally free and frank manner, its views on the points raised by the Commission. The issues that are raised at the beginning of this process can often be quite different from those issues (if any) which are eventually the subsequent negotiations.

It is important to the UK to have maximum flexibility in such negotiations with the Commission as might take place, and for them to be conducted in the public domain would likely be prejudicial to both the United Kingdom's position and extent to which the European Commission is able to investigate and ascertain whether any further proceedings are in fact necessary, which is ultimately in the interest of ensuring that EU law is properly implemented.

Balanced against this, however, is that putting what are effectively, only initial views on the part of the Commission, into the public domain could lead to unwarranted and unnecessary confusion. Such confusion could lead to eventually to the United Kingdom's domestic legislation being unnecessarily challenged.

We have, therefore, concluded that the public interest in maintaining the exemptions outweigh the public interest in disclosing the information.

information plays in the free and frank process of policy formulation, which would be likely to be inhibited by disclosure. It is also very much in the public interest that the UK Government can take account of the views of the European Commission in its continuing policy discussions and that this is not inhibited by premature disclosure of these views. If this correspondence were less candid in the future, its value would be reduced and the policy formulation process would be less informed. Furthermore, it is important to take account of the context in which this correspondence arises. The process by which the European Commission corresponds with its member states is a bilateral iterative process in which the European Commission is able to express any concern it has about the implementation of European law in the State, and the Member State is able to set out, in an equally free and frank manner, its views on the points raised by the Commission. The issues that are raised at the beginning of this process can often be quite different from those issues (if any) which are eventually the subsequent negotiations.

It is important to the UK to have maximum flexibility in such negotiations with the Commission as might take place, and for them to be conducted in the public domain would likely be prejudicial to both the United Kingdom's position and extent to which the European Commission is able to investigate and ascertain whether any further proceedings are in fact necessary, which is ultimately in the interest of ensuring that EU law is properly implemented.

Balanced against this, however, is that putting what are effectively, only initial views on the part of the Commission, into the public domain could lead to unwarranted and unnecessary confusion. Such confusion could lead to eventually to the United Kingdom's domestic legislation being unnecessarily challenged.

We have, therefore, concluded that the public interest in maintaining the exemptions outweigh the public interest in disclosing the information.

Appeals procedure

If you are unhappy with the result of your request for information, you may request an internal review within two calendar months of the date of this letter. If you wish to request an internal review please contact me.

If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:

            Information Commissioner's Office

            Wycliffe House

            Water Lane

            Wilmslow

            Cheshire

            SK9 5AF

The Constitution Unit, a research body at University College London, is carrying out an independent evaluative study of the Freedom of Information Act 2000 in co-operation with a number of public authorities, including BERR. An important part of the evaluation process is gathering the experiences and opinions of FOI requesters like you. Any information you provide will be handled in accordance with the privacy policy explained in the survey.

Yours sincerely

Patrick Balchin

Business relations 2

Continuation 2

Group Name, 1 Victoria Street, London SW1H 0ET

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Group Name, 1 Victoria Street, London SW1H 0ET

www.berr.gov.uk

Direct Line +44 (0)20 7215 | Fax +44 (0)20 7215 | Minicom +44 (0)020 7215 6740

Enquiries +44 (0)20 7215 5000 | Email [email address]