PO Box 1922
Croydon
CR90 9DD
Tel 0870 606 7766
www.ukba.homeoffice.gov.uk
Mr John Walker
Request-8060-4956ff5c@whatdotheyknow
(by
email)
Our
Ref:
11233
21 January 2010
Dear Mr Walker
Further to our letter of 13 May I am now in a position to provide a substantive reply to
your request of 12 February for copies of all correspondence relating to the decision
to ban Geert Wilders. Your request has been handled in accordance with the
Freedom of Information Act 2000. I apologise for the delay in sending you a
response.
I am able to confirm that the Home Office does hold information relevant to your
request and some of this is enclosed with the response. Nonetheless, we have
decided not to communicate some of this information to you in accordance with the
exemptions under Sections 21, 27,(1)(a), 36(2)(b)(i) & (i ) and (c) and 40 of the
Freedom of Information (FOI) Act 2000. I will deal with each of these exemptions in
turn:
Section 21
I have decided not to communicate some information pursuant to the exemption
under Section 21 of the Freedom of Information Act 2000. This allows us to exempt
information on the grounds that it is already in the public domain. Some of the
information held by the UK Border Agency was sourced from independent media
sources and is as such easily accessible by searching the internet and media
archives. Additional information was made public by Mr Wilders himself and this has
been widely reported.
Section 27
Some of the information you have requested falls within the scope of Section 27(1)(a)
of the Freedom of Information Act 2000. Section 27(1)(a) allows us to exempt
information if its disclosure would, or would be likely to, prejudice relations between
the United Kingdom and another state.
If I were to disclose this information to you it could substantially prejudice relations
between the United Kingdom and another state. This is because disclosure could
affect the UK’s relationships with other countries and as a consequence they could be
less wil ing to assist the UK. Delivery of our domestic and foreign policy objectives
relies to a large extent on the free flow of confidential information between the UK and
other countries. They may be less likely to share such documents or information with
us in the future, impeding our ability to develop or carry out public policy in the public
interest including interests of safety and security of UK citizens.
The use of this exemption also requires us to consider whether in all circumstances of
the case the public interest in maintaining the exemption stated above outweighs the
public interest in disclosing the information.
I have considered the public interest that there may be in the circumstances of this
case in disclosing this information to you. There is a public interest in disclosing the
information as it would demonstrate the good relationships and working practices
between other states and the United Kingdom.
I have also considered the public interest there may be in maintaining the exemption
to the duty to communicate. There is a public interest in maintaining our relationships
with other states by not prohibiting frank and full discussion and the exchange of views
and information between the UK and other states. Disclosure could also reveal their
working practices. Disclosure would affect our ability to work with other countries and
they may not be wil ing to assist the UK in the future if they thought that information
they had provided would be disclosed to the public. Mr Wilders is a Dutch MP and as
such in the specifics of this case disclosure would affect the ongoing necessary
diplomatic relationship with the current Dutch administration.
I have considered whether in all the circumstances of the case the public interest in
maintaining the exemption outweighs the public interest in disclosing the information.
I have concluded that the balance of the public interest identified lies in favour of
maintaining the exemption because it is in the overall public interest that the UK
maintains good relationships with other countries.
Section 36
A Home Office Minister has decided, in their reasonable opinion, not to communicate
some of the information you have requested pursuant to the exemption under
Section 36(2)(b)(i) & (ii) and (c) of the Freedom of Information Act 2000. Information
to which this section applies is exempt information if, in the reasonable opinion of a
qualifed person, disclosure of this information under the Act would or would be likely
to inhibit the free and frank provision or advice; the free and frank exchange of views
for the purposes of deliberation; and would otherwise prejudice or would be likely to
prejudice, the effective conduct of public affairs.
We believe that in this case disclosure of the information concerned into the public
domain would inhibit the free and frank provision of advice and the free and frank
exchange of the views for the purposes of deliberation. In addition, some of the
information would or would be likely to prejudice the effective conduct of public
affairs. This is because it would involve the disclosure of advice between officials
and Ministers, in the form of emails and other correspondence. Good government
requires that it be able to engage in full and frank discussions in relation to how a
particular case is determined. Such discussion makes for better quality decisions. In
her consideration of Mr Wilders’ case, the then Home Secretary took into account the
views of relevant departments and agencies including the Foreign and
Commonwealth Office, the Department of Communities and Local Government and
law enforcement agencies, as well as having regard to any representations made by
groups and individuals. Ministers and officials need to be able to consider and
discuss all options, and to expose their merits and demerits, and their possible
implications. Their candour in doing so wil be affected by their assessment of
whether the context of their discussions wil be disclosed in the near future, when
suggested ideas or options had been subsequently dismissed or ruled out. Moreover,
in making an assessment on whether to deny entry to Mr Wilders, the then Home
Secretary needed to form a view of all the evidence relating to him, so as to act
consistently, proportionately and reasonably in applying the appropriate powers.
Officials are sometimes required as a matter of timely conduct to prepare lines to
take in relation to the possible outcomes in advance of a decision being taken or
announced by Ministers. As such drafts are necessarily speculative and may not
reflect the Minister’s actual decision or view, disclosure of such drafts could give a
misleading impression of government policy. In the circumstances of this case, the
decision ultimately rested with the Immigration Officer on Wilders’ arrival and could
not be predicted conclusively until that point.
We have considered the public interest there may be in the circumstances of this
case in disclosing the information. There is a strong public interest in disclosing
information which ensures that there is transparency in the way in which government
operates. In addition, knowledge that the arguments relating to a debate wil be
disclosable, wil in fact improve the quality of those arguments. Far from inhibiting
the frank provision of advice, there might be circumstances where the prospect of
disclosure would enhance the quality of advice.
We have also considered the public interest there may be in maintaining the
exemption to the duty to communicate. There is a strong public interest in ensuring
that Ministers and their officials are able to think through all the implications of
particular options. In particular they need to be able to undertake rigorous and
candid assessments, as in the case of whether to grant admission to Mr Wilders, of
the risks to a particular decision being taken. It is also in the public interest that
disclosure of the process of interdepartmental consideration does not undermine the
collective responsibility of government. Moreover, Ministers and their officials need
space to develop their thinking and explore options in communications and
discussions with other Ministers and officials. It would not be in the public interest to
disclose this information.
We have considered whether in all the circumstances of the case the public interest
in maintaining the exemption outweighs the public interest in disclosing the
information. We have concluded that the balance of the public interest lies in favour
of maintaining the exemption. It is clear that the public interest balancing test favours
withholding this information as the greater public interest lies in maintaining the
integrity of how government makes decisions of this nature. This process would be
undermined as the free and frank exchanges of views would be discouraged,
affecting similar discussions in the future which would clearly not be in the public
interest where issues of public safety are concerned.
Section 40
Section 40 allows us to exempt personal information. It is the general policy of UKBA
not to disclose, to a third party, personal information about another person. This is
because UKBA has obligations under the Data Protection Act and in law generally to
protect this information. Your request has been considered in line with UKBA’s
obligations under the Freedom of Information Act. However it has been concluded
that some of the information you have requested is exempt under Section 40(2) of
that Act as it is personal information about Mr Wilders. Section 40(2) of the Freedom
of Information Act states that disclosure would breach the Data Protection principles
and therefore we cannot supply you with the information you have requested.
If you are dissatisfied with this response you may request an independent internal
review of our handling of your request. Internal review requests should be submitted
within two months of the UK Border Agency sending a substantive reply to your
original request and should be submitted to:
The Deputy Director
Freedom of Information Team
UK Border Agency
Lunar House
11th Floor
40 Wel esley Road
Croydon CR9 2BY
During the independent review the department’s handling of your information request
wil 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.
Yours sincerely
Freedom of Information Caseworker
