Correspondence between ICO and DCMS concerning delay in implementing "cookie law"

Phillip Main made this Freedom of Information request to Information Commissioner's Office

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was partially successful.

Dear Information Commissioner’s Office,
Please supply copies of correspondence between yourselves (ICO) and the Department of Culture Media and Sport concerning the:
Implementation of the EU directive on cookies due to come into force on the 25th May 2011.

Copies of any replies received from the DCMS on this subject.

Copies of any correspondence between yourselves(ICO)and OFCOM regarding the same

Copies of any reply or replies received from OFCOM on this subject.

Yours faithfully,

Phillip Main

Information Commissioner's Office

Link: [1]File-List

11 March 2011

Case Reference Number IRQ0380224

Dear Mr Main

Request for Information

Thank you for your correspondence received 11 March 2011, entitled
“Freedom of Information request - Correspondence between ICO and DCMS
concerning delay in implementing "cookie law".

Your request is being dealt with in accordance with the Freedom of
Information Act 2000.  We will respond by 08 April 2011 which is 20
working days from the day after we received your request.

Should you wish to respond to this email please be careful not to amend
the information in the ‘subject’ field. This will ensure that the
information is added directly to your case. However, please be aware that
this is an automated process; the information will not be read by a member
of our staff until your case is allocated to a request handler.

Yours sincerely

Andrew Walsh

Lead Internal Compliance Officer

01625 545 363

show quoted sections

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.gov.uk

References

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1. file:///tmp/radB1375_files/filelist.xml

Information Commissioner's Office

3 Attachments

Link: [1]File-List

8 April 2011

Case Reference Number IRQ0380224

Dear Mr Main

Further to our acknowledgement of 11 March 2011 we are now in a position
to provide a response to your request.

Your request read:

“Please supply copies of correspondence between yourselves (ICO) and
the Department of Culture Media and Sport concerning the:
Implementation of the EU directive on cookies due to come into
force on the 25th May 2011.

Copies of any replies received from the DCMS on this subject.

Copies of any correspondence between yourselves (ICO) and OFCOM regarding
the same

Copies of any reply or replies received from OFCOM on this subject.”

As previously stated we have considered your request under the Freedom of
Information Act 2000.

We can confirm that we do not hold any correspondence with OFCOM falling
into the scope of your request.

With regard to the remainder of your request; we have interpreted your
request to include copies of correspondence between ICO and BIS as well as
ICO and DCMS. We have done this because until recently our correspondence
regarding this matter was with BIS and not DCMS.

Further, you write of the ‘EU directive on cookies’; as no such
named Directive exists but it is clear you are seeking information
relating to the revised ePrivacy directive we have included correspondence
relating to the latter in our consideration of the information we hold.

We have considered information held at the time of your request. Save for
one letter which we considered as it formed part of a chain of
correspondence.

Please see copies of correspondence between Ed Vaizey MP and ICO attached.
There are 3 letters concerning the implementation of Directive 2009/136/EC
amending Directive 2002/58/EC.

Please also see copies of email correspondence between ICO staff and
BIS/DCMS staff. We must point out that in one email there is reference to
the ‘minister David Hendon’; we would like to clarify that this
was written in error by the author of the email and he is well aware that
he was mistaken and David Hendon was not the individual to whom he meant
to refer as David Hendon is not a Minister.

You will see that there is some redaction in these emails and of
signatures in the letters. All of this redaction has been made in reliance
on section 40 (2) which by virtue of section 40 (3) (a) (i) allows a
public authority to withhold personal data of individuals other than the
requester where disclosure would breach a data protection principle. The
first data protection principle requires that information be processed
‘fairly and lawfully’ and we consider that disclosure of the
redacted information in this circumstance would breach the first
principle.

We have considered further correspondence between BIS legal advisers and
the ICO but have found that this is exempt under section 42 Freedom of
Information Act 2000 (FOIA) Legal Professional Privilege.

Section 42(1) states that ‘information in respect of which a claim to
legal professional privilege or, in Scotland, to confidentiality of
communications could be maintained in legal proceedings is exempt
informationÂ’.

When considering whether to apply it in response to a request for
information, we must consider a public interest test. That is, we must
consider whether the public interest favours withholding or disclosing the
information.

In this case the public interest factors in disclosing the emails are:

o Increased transparency in the way in which the ICO communicates with
organisations important to its business  

The factors in withholding the information are:

o the public interest in maintaining the ICOÂ’s ability to be
consulted on matters of importance to its interests and day to day
work
o the public interest in allowing organisations with shared interest the
ability to consult and discuss complex legal issues with the aim of
better understanding each others position

Having considered all of these factors we have taken the decision that the
public interest in withholding the information outweighs the public
interest in disclosing it. Therefore in this instance we are unable to
provide you with the correspondence in question.

Further, we have considered other correspondence between relevant ICO
staff and relevant members of BIS staff and found that section 36 (2) (b)
(i) and (ii) FOIA are engaged.

With regard to this information it is in the opinion of the Commissioner
that section 36 (2) (b) (i) and (ii) are engaged; that disclosure of the
information would be likely to inhibit the free and frank provision of
advice and the free and frank exchange of views for the purposes of
deliberation

However, section 36 is a qualified exemption and so we turn to the public
interest test.

The public interest factors in favour of disclosing the information are:

o increased transparency in the way the ICO has communicated with
BIS/DCMS and the issues discussed thus far
o enabling the public to see that issues of importance and of interest
to a wider audience are discussed at the appropriate level and in
appropriate detail

The public interest factors in favour of withholding the information are:

o the public interest in the ICO and BIS/DCMS being able to discuss
complex points in detail and share ideas prior to finalising these
points within policies or other documents
o the public interest in BIS/DCMS being able to trust that they are able
to consult and communicate with the ICO in a manner appropriate to the
issues in the knowledge that information provided to the ICO or
discussed with the ICO will not be disseminated prematurely or at all,
where appropriate
o the public interest in ensuring that issues which may affect large
swathes of people in a variety of ways can be given the attention
required to ensure the most considered outcome for all
o the public interest in the ICO maintaining a position where it is able
to engage with and be consulted by key external bodies in relation to
matters which are of importance to its own work

I hope this information is of use to you, however, if you are dissatisfied
with the response you have received and wish to request a review of our
decision or make a complaint about how your request has been handled you
should write to the Internal Compliance Department at the address below or
e-mail [2][email address]

Your request for internal review should be submitted to us within 40
working days of receipt by you of this response. Any such request
received after this time will only be considered at the discretion of the
Commissioner.

If having exhausted the review process you are not content that your
request or review has been dealt with correctly, you have a further right
of appeal to this office in our capacity as the statutory complaint
handler under the legislation.  To make such an application, please
write to the First Contact Team, at the address below or visit the
‘Complaints’ section of our website to make a Freedom of
Information Act or Environmental Information Regulations complaint online.

 

A copy of our review procedure is attached.

Yours sincerely

Helen Ward

Lead Internal Compliance Officer

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.gov.uk

References

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1. file:///tmp/rad0D515_files/filelist.xml
2. mailto:[email address]