Department for Environment, Food and Rural Affairs
Information Rights Team
Area 1B
Ergon House
Horseferry Road
London SW1P 2AL
Email: [email address]
Website: www.defra.gov.uk
Mr C Lister
By e-mail
: [FOI #33072 email]
RFI: 3308
25 May 2010
Dear Mr Lister
REQUEST FOR INFORMATION: CORRESPONDENCE BETWEEN DEFRA AND CLG
REGARDING THE ENVIRONMENTAL INFORMATION REGULATIONS 2004
Thank you for your request for information for written communications/responses and
email between Defra and CLG Housing Team between 1 January and 19 April 2010, with
the additional text the Charges for Property Search Regulations (CPSR), which we
received on 26 April 2010. We are dealing with your request under the Freedom of
Information Act 2000 (FOIA) and Environmental Information Regulations 2004 (EIRs).
The publication of the Information Commissioner’s guidance on property searches and his
subsequent findings in a number of decision notices plus the decision of the First-tier
Tribunal (Information Rights) in the East Riding of Yorkshire v the Information
Commissioner case have raised some issues concerning the application of The Local
Authorities (England) (Charges for Property Searches) Regulations 2008 and the EIRs
which officials are currently considering.
We have conducted a search of the information we hold which is relevant to your request
and found a number of documents. One of these is an e-mail where we circulated the
decision of the First-tier Tribunal (Information Rights) on the East Riding of Yorkshire
Council v the Information Commissioner case to other interested government departments.
This is already in the public domain and can be found at:
http://www.informationtribunal.gov.uk/DBFiles/Decision/i380/Decision_EA.2009.0069_15.0
3.10_No_Sig.pdf
After careful consideration we have decided to withhold the requested information. To the
extent that the information is not environmental, it is being withheld under FOIA. The
exemptions at Section 35 (1) (a) the formulation or development of government policy and
Section 42 which relates to legal professional privilege are engaged.
If, in the alternative, the information is deemed to be environmental, Regulation 12 (4) (e)
of the EIRs is engaged as the request involves the disclosure of internal communications.
Regulation 12 (8) further provides that “for the purposes of (4) (e) internal communications
includes communications between government departments”. As the information contains
legal advice it has also been withheld under Regulation 12 (5) (b) which covers adverse
effect on the course of justice, the ability of a person to receive a fair trial or the ability of a
public authority to conduct an enquiry of a criminal or disciplinary nature and Regulation 12
(5) (d) which covers adverse effect on the confidentiality of commercial or industrial
information where such confidentiality is provided by law to protect a legitimate economic
interest.
In applying these exemptions/ exceptions we have had to balance the public interest in
withholding the information against the public interest in disclosure.
Section 35 (1) (a) and Regulation 12 (4) (e)
We recognise there is a general public interest in transparency to increase understanding
of how government works. In particular the question of the application of legislation in
respect of charging for property searches has been the subject of complaints to the
Information Commissioner, and an appeal to the First-tier Tribunal (Information Rights).
On the other hand, there is a strong and countervailing public interest in withholding this
information. Given the content of the Decision Notices issued by the Information
Commissioner and the findings of the First-tier Tribunal (Information Rights), Government
needs to be able to preserve a private space for discussion and consideration of these
issues which have an effect on both local authorities and property search companies.
Assessment of the implications of these developments needs to be based on the best
advice available. Disclosure of this information in relation to a policy matter which is
recent and live would be premature and have an adverse effect on the ability of
Government to develop policy effectively.
Section 42 and Regulations 12 (5) (b) and 12 (5) (d)
Government decisions need to be taken in a fully informed legal context. There is a public
interest in public authorities being accountable for the quality of their decision making.
Ensuring that decisions have been made on the basis of good quality legal advice is part
of that accountability. Transparency in the decision making process and access to the
information upon which decisions have been made can enhance accountability.
However, confidential communications between lawyers and their clients are protected by
Legal Professional Privilege (LPP). Legal advisers need to be able to present government
departments with high quality comprehensive legal advice for the effective conduct of their
business. This advice needs to be given with a full appreciation of the facts and can
include arguments which consider various options. Without comprehensive advice the
quality of the government's decision making would be much reduced because it would not
be fully informed and this would be contrary to the public interest.
In addition the disclosure of legal advice has a high 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. In this case it has been necessary to
consider some complex legal issues requiring the advice and input of our professional
legal advisers.
We consider on the light of the above analysis that the disclosure of the information you
requested would have a detrimental effect on the Government’s ability to develop its
policy. Therefore we have concluded that in all the circumstances of the case, the
information should be withheld.
If you have any queries about this letter, please contact me. I also attach annexes which
relate to copyright (Annexe A) and giving contact details should you be unhappy with the
service you have received (Annexe B).
Yours sincerely,
Jenny Carpenter (Mrs)
Case Officer
Information Rights Team
020 7238 4742
Annexe A
Copyright
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 re-
use, for example commercial publication, would require the permission of the copyright
holder. Most documents supplied by Defra 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 OPSI (Office of Public Sector Information) at:
http://www.opsi.gov.uk/click-use/index.htm
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.
Annexe B
Complaints
If you are unhappy with the service you have received in relation to your request you may
make a complaint or appeal against our decision within 40 working days of the date of this
letter. Please write to Clive Porro, Head of Defra’s Information Rights Team at, Area1B
Ergon House, Horseferry Road, London SW1P 2AL, (email:
[email address]) who will arrange for an internal review of your case.
Details of Defra’s complaints procedure can be found at:
http://www.defra.gov.uk/corporate/policy/opengov/complain/info.htm
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. Please note that generally the
Information Commissioner cannot make a decision unless you have first exhausted
Defra’s own complaints procedure. The Information Commissioner can be contacted at:
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
