Information Access Team
Shared Services Directorate
2 Marsham Street, London SW1P 4DF
Switchboard 020 7035 4848
E-mail: [email address] Website: www.homeoffice.gov.uk
Mr John Reith
[FOI #8555 email]
29 July 2010
Dear Mr Reith,
Freedom of Information Request – our ref: 12751
I am writing further to my correspondence of 10 February 2010, regarding your information
request dated 4 September 2009. We are now in a position to provide you with a full reply to
your request. I am very sorry for the considerable delay in responding.
I confirm that the Home Office holds information relevant to your request. I am pleased to be
able to disclose some of the information requested to you. Due to the amount of information
retrieved we cannot send it to you electronically. Please send your postal address to:
[email address]. We wil supply you with all the disclosable information
that the Home Office holds on receipt of your postal address.
After careful consideration we have decided that some of the information is exempt from
disclosure by virtue of sections 23(1), 24(1), 31(1)(a)(c), 35(1)(b), 35(1)(c), 36(2)(c) and 40(2)
of the Freedom of Information Act. These provide that information can be withheld where that
information is supplied by or relates to the bodies dealing with security matters, would
prejudice national security, the prevention and detection of crime, the administration of
justice, Ministerial communications and the effective conduct of public affairs and personal
information.
The exemptions at sections 24, 31, 35 and 36 are qualified exemptions and therefore require
the conducting of a Public Interest Test (PIT) to balance the considerations favouring
disclosure against those favouring non-disclosure. The relevant PIT can be found in the
annex to this letter.
The exemptions at sections 23(1) and 40(2) are absolute exemptions and do not require
consideration of the public interest test. Further information on these exemptions is in the
annex also.
I should also point out that the exemptions at sections 23 and 24, and those at 35 and 36
cannot be applied to the same information. These exemptions have been applied to separate
and distinct information and are wholly exclusive in their use.
If you are dissatisfied with this response you may request an independent internal review of
our handling of your request by submitting a complaint within two months to the address
below, quoting reference
12751.
Information Access Team
Home Office
Ground Floor, Seacole Building
2 Marsham Street
London SW1P 4DF
e-mail: [email address]
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 wil have a right of complaint to the
Information Commissioner as established by section 50 of the Freedom of Information Act.
Again, I would like to say sorry for the considerable delay in responding to you and I hope
that this has not inconvenienced you unduly.
Yours sincerely,
L Fisher
Information Access Team, Home Office
ANNEX –
PUBLIC INTEREST TEST
Some of the exemptions in the Freedom of Information Act, referred to as ‘qualified
exemptions’, are subject to a public interest test (PIT). This test is used to balance the public
interest in disclosure against the public interest in favour of withholding the information, or the
considerations for and against the requirement to say whether the information requested is
held or not. We must carry out a PIT where we are considering using any of the qualified
exemptions in response to a request for information.
The ‘public interest’ is not the same as what interests the public. In carrying out a PIT we
consider the greater good or benefit to the community as a whole if the information is
released or not. The ‘right to know’ must be balanced against the need to enable effective
government and to serve the best interests of the public.
The FoI Act is ‘applicant blind’. This means that we cannot, and do not, ask about the
motives of anyone who asks for information. In providing a response to one person, we are
expressing a wil ingness to provide the same response to anyone, including those who might
represent a threat to the UK.
Section 23 – Information directly or directly supplied by bodies listed at 23(3)
Section 23(1) states:
23(1) Information held by a public authority is exempt information if it was directly or indirectly supplied to the
public authority by, or relates to, any of the bodies specified in subsection (3).
The bodies listed in subsection (3) include the Security Service, the Secret Intel igence Service, Government
Communications Headquarters, the special forces, the SOCA and the National Criminal Intelligence Service
amongst others.
Section 23 is an absolute exemption that does not require any consideration of the public
interest test.
Section 24 – National Security
Section 24(1) (National security) applies to information in a smal number of documents
relevant to your request.
Considerations in favour of disclosing the information
There is a general public interest in increasing the public’s knowledge and understanding of
how Government and law enforcement bodies such as the police operate. Releasing such
information would demonstrate transparency and accountability on the part of Government
and its agencies which in turn encourages public trust. It also provides opportunities to
scrutinise Government and police actions or policies. The public also have an interest in
understanding more about the removal and suspension of Mr Stalker, given that he was a
senior public figure at that time.
Considerations in favour withholding the information
It is clearly in the public interest to prevent harm or avoid the risk of harm (both to individuals
and the State more widely) that might result from disclosing material which is a matter of
national security. If this information was disclosed it could risk compromising current police
operational techniques and potentially individuals. It might also provide valuable information
to other criminals.
We conclude that the balance of the public interest lies in withholding the information.
Section 31 – Law Enforcement
Sections 31(1)(a) (the prevention and detection of crime) and 31(1)(c) the administration of
justice) apply to information in a small number of documents relevant to your request.
Considerations in favour of disclosing the information
The arguments in favour of disclosure are similar to those under section 24 (1) (National
security). Mr Stalker held a senior position at the time and the public have an interest in
learning more about his suspension and removal from the Inquiry. The public also have an
interest in being kept informed about the ways in which the police carry out their
responsibilities. For example there is a general public interest in demonstrating the
robustness with which law enforcement agencies conduct investigations which may go
towards maintaining public confidence in law enforcement and the criminal justice system.
Disclosure of this information would also demonstrate the accountability of those agencies
and Government and ensure that their processes and procedures are as transparent as
possible.
Considerations in favour withholding the information
Disclosure of information relating to the suspension and removal of Mr Stalker from office
may prejudice any future proceedings (whether criminal, civil or otherwise) that might be
linked to this case – even given the passage of time further proceedings cannot be ruled out.
Releasing the information could undermine the possibility of the apprehension or prosecution
of offenders and the administration of justice. The information relates to material gathered by
the police in the course of an investigation. Disclosure may compromise future police
investigations, either relating to a matter connected to this case, or more generally by
revealing details about police strategies and tactics in seeking to prevent and detect crime, or
operational policies and procedures. This type of information may provide valuable
information to other criminals.
We conclude that the balance of the public interest lies in withholding the information.
Section 35 – Formulation of government policy
Sections 35(1)(b) (Ministerial communications) and 35(1)(c) (provision of advice by the Law
Officers) apply to information in a small number of documents relevant to your request.
Considerations in favour of disclosing the information
There is a general public interest in disclosure, it ensures greater transparency and
accountability on the part of Government and also increases the public’s knowledge and
understanding of how Government works. The public also have an interest in ensuring that
decisions have been made on the basis of good quality legal advice. The decisions that
Ministers make, particularly in deciding on how to respond to sensitive issues such as the
suspension and removal of a senior police officer from office, and how they reach those
decisions are of significant interest to the public.
Considerations in favour withholding the information
There is a strong public interest in the Government receiving frank and confidential advice
from its principal legal adviser without fear that it wil be disclosed. Similarly if Ministers feel
inhibited from being frank and candid with one another because of the risk of subsequent
disclosure the quality of the debate lying behind collective decisions may be diminished.
Collective responsibility seeks to ensure that decisions do not become personalised. This is
described in the Ministerial code as follows:
Collective responsibility requires that Ministers should be able to express their views frankly
in the expectation that they can argue freely in private while maintaining a united front when
decisions have been reached. This in turn requires that the privacy of opinions expressed in
Cabinet and Ministerial Committees should be maintained.
We conclude that the balance of the public interest lies in withholding the information.
Section 36 – Prejudice to the effective conduct of public affairs
In relation to the exemption provided in section 36(2)(c) (prejudice to the conduct of public
affairs), the qualified person has considered the application of section 36 and is of the
opinion that this exemption applies to some of the information.
Considerations in favour of disclosing the information
There is a general public interest in being able to understand more about the deliberative and
decision making processes of Government. The public wil also want to be reassured that
appropriate advice was sought to allow a decision to be reached based on the best advice
and options available. The Stalker case has a very high profile in Northern Ireland and the
public wil have an interest in knowing that such sensitive issues are handled appropriately
and at a sufficiently senior level. Release would also show how officials interact with each
other and the range of advice and views provided.
Considerations in favour of withholding the information
It is in the public interest that there is a space within which Ministers and officials are able to
discuss policy options freely and frankly. Discussions about the suspension and removal of
Mr Stalker contain were, in some instances, a candid exchange of views. Knowing that such
discussions or advice might be made public could inhibit officials from being free and frank in
their advice or opinions. It might distort or restrain discussion of sensitive issues such as the
Stalker case, which in turn might weaken the effectiveness of the advice to Ministers, or
make it less likely that such information was not properly recorded in the future. Ministers
and officials need to be able to think through all the implications of various policy options – in
particular they need to be able to undertake rigorous and candid assessments of the risks
associated with certain issues – such as the impact of a senior police officer being
suspended and removed from duty when that officer has responsibility for a high profile
investigation.
We conclude that the balance of the public interest lies in withholding the information. The
application of section 36 has been approved by a qualified person.
Section 40 (2) – Personal information
Section 40 states:
40. (1) Any information to which a request for information relates is exempt information if it constitutes personal
data of which the applicant is the data subject.
(2) Any information to which a request for information relates is also exempt information if—
(a) it constitutes personal data which do not fall within subsection (1), and
(b) either the first or the second condition below is satisfied.
(3) The first condition is—
(a) in a case where the information falls within any of paragraphs (a) to (d) of the definition of “data” in section
1(1) of the [1998 c. 29.] Data Protection Act 1998, that the disclosure of the information to a member of the
public otherwise than under this Act would contravene—
(i) any of the data protection principles, or
(i ) section 10 of that Act (right to prevent processing likely to cause damage or distress), and
(b) in any other case, that the disclosure of the information to a member of the public otherwise than under this
Act would contravene any of the data protection principles if the exemptions in section 33A(1) of the [1998 c.
29.] Data Protection Act 1998 (which relate to manual data held by public authorities) were disregarded.
(4) The second condition is that by virtue of any provision of Part IV of the [1998 c. 29.] Data Protection Act
1998 the information is exempt from section 7(1)(c) of that Act (data subject’s right of access to personal data).
It is the general policy of the Home Office not to disclose, to a third party, personal
information about another person. This is because the Home Office has obligations under
the Data Protection Act and in law generally to protect this information. It has been
concluded that some of the information you have requested is also exempt under section
40(2) of that Act. Section 40(2) of the Freedom of Information Act states that this disclosure
would breach the Data Protection principles and therefore we cannot supply the information
you have requested.
Section 40(2) is an absolute exemption that does not require any consideration of the public
interest test.
