Post Office Policy Sponsorship Team
Department for Business, Energy &
Industrial Strategy
1 Victoria Street
London
SW1H 0ET
T +44 (0)20 7215 5000 - Public enquiries
+44 (0)20 7215 6740 -
Textphone (
for those with
E
hearing impairment)
Ms Eleanor Shaikh
xxx.xxxxxxxx@xxxx.xxx.xx
www.gov.uk/beis
Our ref : FOI2020/37449
12 January 2021
Dear Ms Shaikh,
Thank you for your letter of 19 November 2020
where you requested the following
information:
“On 21st March 2019, Post Office Limited issued an application to recuse Mr Justice
Fraser, the High Court Judge presiding over the Group Litigation.
Please can you disclose communications between the Department for BEIS, UKGI
and POL in which you were informed of this course of action?
On 9th April 2019, Post Office Limited delivered an appeal against the Judge’s
refusal to recuse himself?
Please can you disclose communications between the Department for BEIS, UKGI
and POL in which you were informed of this course of action?”
Under the Freedom of Information Act 2000 (“the Act”), you have the right to:
• Know whether we hold the information you require; and
• Be provided with that information (subject to any exemptions under the Act
which may apply).
I can confirm that the Department for Business, Energy and Industrial Strategy
(“BEIS”) does hold correspondence covered by the request and is disclosing the
information with redactions. BEIS located two items of correspondence in scope of
this request and these are enclosed as Annex A and Annex B.
In relation to the redactions of both pieces of correspondence, BEIS considers that
Section 40(2) is engaged and disclosure of personal information of some individuals
and their personal information would contravene the General Data Protection
Regulation (“GDPR”) data protection principles. Information should not be disclosed
if it would contravene any of the data protection principles. Section 40(2) provides an
absolute exemption for personal data which falls to be dealt with under the Data
Protection Act 2018 (“DPA”).
Under the DPA, personal data of staff can only be disclosed in accordance with the
data protection principles. In particular, the first data protection principle requires that
disclosure must be lawful, fair and transparent and must comply with one of the
conditions in Article 6(1) of the GDPR. The definition of personal information to which
Section 40 applies is wide and can include references to identifiable individuals. Our
view is that the release of the information would not be lawful, fair and transparent
and none of the conditions of Article 6(1) of GDPR are met.
In relation to the redactions on Annex B specifically, BEIS considers that Section 41
is engaged and as such the communication has been redacted due to our duty
to provide a degree of assurance to BEIS’ partners, including Post Office Limited
(“POL”) that information shared in confidence will continue to be respected.
BEIS are satisfied that disclosure of the requested information would constitute an
actionable breach of confidence and therefore Section 41(1) is engaged. Section 41
is an absolute exemption and does not require a public interest test. However, we
have considered whether there is a general public interest for releasing the
information strong enough to override maintaining the duty of confidence. Examples
of this would be if the information revealed iniquity or fraud or disclosure was
necessary to protect public safety. However, none of these factors are present in the
withheld information. We have also considered the general public interest in making
information available as it helps transparency and accountability. However, in this
case, we do not consider that there are any public interest arguments strong enough
to convince us to set aside the duty of confidence. We have therefore concluded to
maintain the duty of confidence and withhold the information.
The redacted information in Annex B is also withheld under section 42 of the Act.
This exempts information in respect of which a claim of legal professional privilege
could be maintained in legal proceedings. The information covered by this request is
subject to legal professional privilege (specifically to legal litigation privilege).
Section 42 is a qualified exemption and therefore subject to the public interest
test. BEIS has considered the general public interest in the disclosure of
information as greater transparency makes the Government more accountable to the
electorate, increases trust and also enables the public contribution to policy making
to become more effective. However, disclosure of such information could be
prejudicial to Government’s operations, and without open and candid legal advice,
the ability of BEIS and Ministers to assess the legal implications of possible courses
of actions to defend decisions from legal challenge would be compromised. Having
considered the public interest test, it has been decided that the public
interest favours withholding the relevant information which falls into scope of the
request.
The redacted information on pages 1, 2 and 3 in Annex B has been withheld on the
grounds that it falls outside the scope of this request.
Appeals procedure
If you are dissatisfied with the handling of your request, you have the right to ask for
an internal review. Internal review requests should be submitted within two months of
the date of receipt of the response to your original request and should be addressed
to the Information Rights & Records Unit. It would be helpful if you can tell us why
you are dissatisfied with the response to your request so we may address this during
the internal review.
Information Rights & Records Unit
Department for Business, Energy and Industrial Strategy
151 Buckingham Palace Road
London
SW1W 9SZ
Email
: xxx.xxxxxxxx@xxxx.xxx.xx
Please remember to quote the reference number above in any future
communications.
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. Complaints can be
made to the Information Commissioner via their website a
t https://ico.org.uk/make-a-
complaint/official-information-concerns-report/official-information-concern/.
Yours sincerely,
Department for Business, Energy and Industrial Strategy