Direct Communications Unit

2 Marsham Street, London SW1P 4DF

Switchboard 020 7035 4848 Fax: 020 7035 4745 Textphone: 020 7035 4742

E-mail: [Home Office request email] Website: www.homeoffice.gov.uk

Mr Michael Bimmler

27 January 2009

Freedom of Information Request - Our ref: 10641

Dear Mr Bimmler,

I am writing regarding your information request dated 20 November 2008. I would like to apologise for the length of time it has taken us to respond in full to your request.

I am now in a position to confirm that the Home Office holds the information that you requested, however I am not obliged to disclose it to you. After careful consideration we have decided that this information is exempt from disclosure by virtue of Sections 35(1)(a) and 24(1) of the Freedom of Information Act. These are qualified exemptions that provide that information can be withheld where disclosure would adversely affect the Formulation of Government Policy (Section 35) and National Security (Section 24) and where the public interest falls in favour of non-disclosure.

The public consultation on Communications Data will begin in early 2009 and will set out the emerging problem as we see it and focus on what safeguards will be needed (in addition to the many already in place) to provide a solid legal framework that will continue to protect civil liberties. The results of this public consultation will be used to inform any decisions on the Interception Modernisation Programme's (IMP) preferred solution and safeguards and will determine whether future legislation is needed.

The presentation that you requested was given by a Home Office Official to a closed forum at the Internet Service Provider's Association (ISPA) conference 3 November 2008 under the Chatham House rule. The information contained in the presentation served as an introduction to a panel discussion on the possible impact any IMP solution may have on ISPA members. These discussions and the presentation that preceded them were based on what might be contained in the Communications Data consultation document. The media and the public were not invited to the ISPA conference precisely so such confidential and speculative discussions could take place and help inform Government policy.

The IMP's purpose is to ensure that we can retain a comparable level of capability in a changing technological environment, in order to investigate crime and protect the public. Losing the ability to use this data would have very serious consequences for law enforcement and intelligence gathering in the UK. As the IMP is clearly a programme which has an impact on national security issues, any decision which would hold back the policy making process and limit the options and solutions to be considered would be likely to also be damaging to national security.

Further explanation of this decision, including where applicable the relevant public interest tests, can be found in the annex to this letter.

If you are dissatisfied with this response you may request an independent internal review of our handling of your request by submitting your complaint within two months to the below address quoting reference: 10641

Information Rights Team

Information Management Service

Home Office

4^th Floor, Seacole Building

2 Marsham Street

London

SW1P 4DF

Email:  [email address]

During the independent review the department's handling of your information request will be reassessed by staff who were not involved in providing you with this response. Should you remain dissatisfied after this internal review, you will have a right of complaint to the Information Commissioner as established by section 50 of the Freedom of Information Act.

I realise that you may be disappointed with this response. However we have considered the application of exemptions with great care in this case, and the Home Office always seeks to provide as much information as it is able to.

Finally I would like to thank you for your interest and take this opportunity to encourage you to engage in the public debate when the consultation on Communications Data is launched later in the New Year. The consultation document will provide an informative overview of why our Communications Data capabilities need to be maintained and I hope it will be very useful for you.

Yours sincerely

J Fanshaw

ANNEX A

Public Interest Test Considerations

Section 35(1)(a) - The formulation and development of government policy

The Exemption

`35(1) - Information held by a government department or by the National Assembly for Wales is exempt information if it relates to-

Considerations Favouring Disclosure

The Intercept Modernisation Programme's (IMP) purpose is to maintain the Government's interception and communications data capabilities during this time of great technological change. The issues surrounding IMP are therefore of significant public interest. There is a large amount of speculation about the options which may be under consideration with little firm information in the public domain. Increased openness with regard to what options the programme is considering and with whom discussion have or have not been held would increase understanding and transparency in this area and inform the public debate.

Considerations Favouring Non-Disclosure

It is not in the public interest to compromise the Government's ability to discuss and formulate policy options in private. It is important in the early stages of policy formulation for the Government to be able to consider and discuss a variety of options in a private space. To reveal at this formative stage what proposals have been considered or which conversations have or have not taken place with would prematurely reveal information about the policy formulation process and the options under consideration. Those involved in policy formulation would be likely to be less candid with their views and unlikely to propose new and challenging ideas if they thought that they would be released prematurely. Those outside of Government who may be involved in discussions about policy would also be less likely to engage if they believed that their views would be made public. This in turn would result in poorer quality decision making.

Balance of the public interest - Section 35

We believe that any information falling within the scope of your request, would, if held, be exempt under section 35(1)(a) above. Therefore, it is our opinion that the public interest clearly favours the non-disclosure of information covered by section 35(1)(a) in this instance.

We believe that the need to protect the space in which government policy can be discussed and formulated, without premature disclosure overrides the factors in favour of disclosure. Furthermore the Government will be addressing the public interest in this issue by bringing forward a consultation paper in early 2009.

Section 24(1) National Security

The Exemption

`24(1) Information which does not fall within section 23(1) is exempt information if exemption from section 1(1)(b) is required for the purpose of safeguarding national security.'

Considerations Favouring Disclosure

The Intercept Modernisation Programme's (IMP) purpose is to maintain the Government's interception and communications data capabilities during this time of great technological change. The issues surrounding IMP are therefore of significant public interest. There is a large amount of speculation about the options which may be under consideration with little firm information in the public domain. Increased openness with regard to what options the programme is considering and would increase understanding and transparency in this area and inform the public debate.

Considerations Favouring Non-Disclosure

It is important to protect the space within which policy is formulated for the purpose of enabling the widest possible range of information gathering to take place and to ensure that the best solutions are considered. To reveal what specific issues/solutions may be being considered at this stage would be prejudicial to that process and would be likely to result in less candid views being aired and poorer decision making. As the Interception Modernisation Programme is clearly one which has an impact on national security issues, any decision which would hinder the policy making process and limit the options and solutions under consideration would be likely to also be damaging to national security.

We have determined that safeguarding national security interests is of paramount importance and that in all circumstances of the case it is our opinion that the public interest clearly favours the non-disclosure of information covered by section 24(1).

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