Dear Mr Cosgrave,

PREMIER PUBLISHING LIMITED - RESPONSE TO A REQUEST UNDER THE FREEDOM OF INFORMATION ACT 2000

I refer to your emails dated 12 March and 1 May 2009 in which you made a request for disclosure of information. You requested:

“…disclosure of all documentation relating to complaints/referrals made by the [Charity] Commission to the DTI regarding Premier Publications Ltd between 2002 and 2007 - in particular any correspondence between DTI and the Commission such as may be disclosed, and also correspondence between Premier and the DTI, in particular any relating to the arrangement Premier had with this Charity at that time.”

It was unclear to us whether you were requesting information about Premier Publishing Ltd (as stated in the e-mail subject line and the first paragraph) or Premier Publications Ltd (as stated in the remaining two paragraphs, which constituted the actual information request). These are two different companies. We were unable to deal with the request without this clarification. You later clarified that it was Premier Publishing Ltd that was the subject of the request.

Your request has been treated as a request for information under the Freedom of Information Act 2000 (“FOIA”).

Under section 1 of FOIA any person making a request for information to a public authority such as BERR (formerly DTI) is entitled to be told whether the information is held, and, if so, to have the information communicated to him. However, section 1 of FOIA has effect subject to section 2, which refers to a number of exemptions. Where applicable, those exemptions disapply the obligation to confirm or deny that information exists or, where it exists, to provide that information.

Following careful consideration of your request it has been decided that the duty to confirm or deny the information you have requested does not arise. In adopting this approach the Department relies on the exemption in section 30 of FOIA.

Section 30 of FOIA

Section 30(1) of FOIA states:

“Information held by a public authority is exempt information if it has at any time been held by the authority for the purposes of…-

(b) any investigation which is conducted by the authority and in the circumstances may lead to a decision by the authority to institute criminal proceedings which the authority has power to conduct or”

Section 30(3) states

“The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1) or (2).”

Representatives of CIB (Companies Investigation Branch, a part of the Insolvency Service, an Executive agency of BERR) are empowered by section 447(3) of the Companies Act 1985 to investigate companies where, following a vetting exercise, it is considered that a good reason exists to do so. One of the possible outcomes of such an investigation is that where suspected criminal conduct is uncovered, the matter will be referred to the Department's in-house prosecutors for proceedings to be commenced. I would emphasise that this happens in only a small proportion of cases. Other outcomes, apart from prosecution, may flow from a section 447(3) investigation, including a decision that no further action is necessary, that the company should be wound up in the public interest or its directors disqualified or disciplined by their professional body (if they belong to one). However, because of the initial prospect of criminal proceedings arising from a section 447(3) investigation, section 30(1)(b) of FOIA is engaged. It follows that section 30(3) applies, meaning that there is no duty to confirm or deny in relation to information requested.

Public Interest Test

The section 30 exemption is qualified. This means that in placing reliance upon it CIB must demonstrate that the public interest in maintaining our approach of not confirming or denying outweighs the public interest in confirming or denying the information you have requested.

The process of conducting confidential Companies Act investigations, and the process of gathering information in the course of deciding whether or not to authorise such investigations, is made easier if one has the cooperation of those involved, both complainants and third parties. Experience has shown that such cooperation is often enhanced by knowledge that all aspects of the process are strictly confidential. The provision of information to CIB is crucial, both in taking the decision whether or not to exercise statutory powers (the vetting stage) and in the conduct of investigations themselves. We regard any breach of confidentiality as a serious threat to the effectiveness of the whole investigation process from the vetting stage onwards. Furthermore, we rely heavily on information voluntarily disclosed from third parties and we consider any threat to the confidentiality of our investigatory process may inhibit such sources.

It is accepted that there is a public interest in ensuring that investigations/complaints under section 447(3) of the Companies Act 1985 are pursued effectively and in an accountable manner. Public confidence in such investigations/processes can be served by increasing their transparency. However, that confidence also requires that the processes themselves should be effective for the delivery of justice. We feel that confidentiality is crucial to these processes.

Bearing all these factors in mind, we take the view that, in this particular case, the public interest comes down in favour of not confirming or denying the position of information that you have requested.

Further information

You may wish to note for further information that there is an Information Tribunal case directly relating to section 30 of FOIA and the work of BERR in respect of company investigations. This is case appeal number EA/2006/2007 dated 10 November 2006. It can be accessed through the Information Tribunal website or at

http://www.informationtribunal.gov.uk/Documents/decisions/DeptofTrade_IndustryVInfoComm10Nov06v7307.pdf In this case the Information Tribunal found that the public interest did not favour the disclosure of information.

Appeals Procedure

If you consider that your request for information has not been dealt with in accordance with the FOIA, then you should ask me to have this response subject to an internal review. You should make this request within two calendar months of the date of this letter.

If, following this review, you are still dissatisfied you may ask the Information Commissioner for a decision as to whether your request for information has been dealt with in accordance with the FOIA. His address is:

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Yours sincerely,

David Hill

David Hill

Case manager