Open Rights Group

Dear Department for Culture, Media and Sport,

I am writing to make a request for information under the Freedom of Information Act 2000. This request is for information regarding section 104 Internet filters of the Digital Economy Act [1] introduced into the legislation as amendment 227 in the House of Lords on 8th February 2017. [2]

Can you provide me with a list of documents about the policy that are held by DCMS and were produced between September 2015 and March 2017?

This would include:
1. legal advice about the policy
2. reports and papers about the policy provided for consideration at meetings
3. internal policy development documents and advice notes
4. advice notes or guidance from Ofcom, Internet Service Providers and their representatives
5. media strategy/communications guidance documents about the policy

If you feel that a response to all or some of this request is not possible within the limits provided by the Act, we would be grateful if you could contact me by telephone or email to advise me as to how we could refine the request. Under section 16 of the FOIA, public authorities are required to provide the requester with advice and assistance while processing their request. This is especially important where a request for information may exceed the appropriate cost limit.

If you believe that all or some of the information requested falls under an exemption in the Freedom of Information Act, we would ask that you a) disclose as much as of the requested information as possible, and b) explain in detail how any exemption is engaged.

Please confirm that you have received this request. I look forward to your response within 20 working days, as outlined by the statute.

Yours sincerely,
Edward Johnson-Williams

[1] http://www.legislation.gov.uk/ukpga/2017...
[2] https://www.theyworkforyou.com/lords/?id...

FOI Mailbox, Department for Culture, Media and Sport

Thank you for your email which is now being dealt with by the Freedom of
Information Team at the Department for Culture, Media and Sport. 
You will receive a response to your information request within 20 working
days of receipt.
  

no-reply@dcms.ecase.co.uk on behalf of Correspondence Team, Department for Culture, Media and Sport

Dear Mr Johnson-Williams,

Thank you for your information request of 10 July 2017, in which you
requested the following:

I am writing to make a request for information under the Freedom of
Information Act 2000. This request is for information regarding section
104 Internet filters of the Digital Economy Act [1] introduced into the
legislation as amendment 227 in the House of Lords on 8th February 2017.
[2]

Can you provide me with a list of documents about the policy that are held
by DCMS and were produced between September 2015 and March 2017?

This would include:
1. legal advice about the policy
2. reports and papers about the policy provided for consideration at
meetings
3. internal policy development documents and advice notes
4. advice notes or guidance from Ofcom, Internet Service Providers and
their representatives
5. media strategy/communications guidance documents about the policy

I have dealt with your request under the Freedom of Information Act 2000
(the Act). I can confirm that the Department does not hold information
within scope of your request.

Yours sincerely,

Freedom of Information Team

Department for Digital, Culture, Media & Sport

4th floor, 100 Parliament Street

London SW1A 2BQ

Tel: 020 7211 6395

www.gov.uk/dcms

Complaints and comments

As is customary in our replies, I would like to explain that if you are
dissatisfied with any aspect of our response to your request for
information and/or wish to appeal against information being withheld from
you please send full details within two calendar months of the date of
this email to: [email address]

You have the right to ask the Information Commissioner (ICO) to
investigate any aspect of your complaint. Please note that the ICO is
likely to expect internal complaints procedures to have been exhausted
before beginning his investigation.

Open Rights Group

Dear [email address] on behalf of Correspondence Team,

Thank you for your response. Some information must have been produced relevant to this policy. Can you send me correspondence with Ofcom relevant to this policy?

Yours sincerely,
Edward Johnson-Williams

FOI Mailbox, Department for Culture, Media and Sport

Thank you for your email which is now being dealt with by the Freedom of
Information Team at the Department for Culture, Media and Sport. 
You will receive a response to your information request within 20 working
days of receipt.
  

no-reply@dcms.ecase.co.uk on behalf of Correspondence Team, Department for Culture, Media and Sport

FOI2017/02989

Edward Johnson-Williams

[FOI #417091 email]

Dear Mr Johnson-Williams,

Thank you for your email of 3 August 2017, in which you requested further
information following your Freedom of Information of 10 July 2017 (our
ref: FOI2017/01682). Your latest request was as follows:

Thank you for your response. Some information must have been produced
relevant to this policy. Can you send me correspondence with Ofcom
relevant to this policy?

I have dealt with your request under the Freedom of Information Act 2000
(the Act). I can confirm that the department does hold information in
scope of your request. However, we have determined that this information
is exempt from disclosure under section 35.1 (a) (formulation of
government policy) of the Act. In addition, some of the information held
is exempt from disclosure under s.41 (confidentiality) and s.42 (legal
privilege).

Section 35.1 (a) is a 'qualified exemption' and requires us to carry out a
public interest test to consider whether the balance of interest lies in
releasing or withholding the information. In this case our view is that
there is not sufficient public interest in releasing this information at
this point in time. Work on government policy around internet filters is
still ongoing and the information at issue will continue to be used to
inform the development of policy. In considering this, we have paid
particular regard to the arguments in favour of disclosure, including that
disclosure may be of benefit because:

* greater transparency makes government more accountable to the
electorate and increases trust;
* the desirability of citizens being confident that decisions are taken
on the basis of the best available information;

However, while acknowledging these benefits we consider that on this
occasion the arguments for upholding the exemption and withholding the
information outweigh those in favour of disclosure. In particular,
consideration of the following factors has led us to the conclusion that
the public interest requires the exemption in section 35 to be upheld
because:

* Ministers and their officials need space in which to develop their
thinking and explore different options in communications and
discussions. We are continuing to use the information at issue here to
inform the development of our ongoing policy;
* good government depends on good decision making and this needs to be
based on the best advice available and a full consideration of all the
options - there may be a deterrent effect on external experts or
stakeholders who might be reluctant to provide advice because it might
be disclosed;

We do not consider there to be a compelling public interest in disclosing
the information, and consider the public interest to be in favour of
withholding.

Some of this information is also exempt from disclosure under section 41
(confidential information) of the Act. Section 41 is an absolute exemption
and applies to information that we have obtained from any other person,
and where disclosing it would constitute an actionable breach of
confidence. Some of the information covered by your request was implicitly
provided to the Department in confidence. The courts have recognised that
there is a very strong general public interest in protecting confidences,
but that a person will not succeed in an action for breach of confidence
if the public interest in disclosure outweighs the public interest in
keeping the confidence. So, although the Act requires no explicit public
interest test under section 41, we have considered whether there is an
overriding public interest in disclosure. In this case we do not consider
that there are any public interest arguments strong enough to convince the
Departme nt to set aside its duty of confidence.

Some of the information is also exempt under Section 42 of the Act (Legal
Professional Privilege). This is a qualified exemption and we have again
considered the public interest in withholding the information or in
disclosing it. In coming to the conclusion to withhold this information,
we have considered the strong public interest in recognising and upholding
the importance of the principle behind legal professional privilege:
safeguarding openness in all communications between client and lawyer to
ensure access to full and frank legal advice, which in turn is fundamental
to the administration of justice. The courts have recognised that the
inherent public interest in maintaining legal professional privilege is
high.

Yours sincerely,

Freedom of Information Team

Department for Culture, Media & Sport

4th floor, 100 Parliament Street

London SW1A 2BQ

www.gov.uk/dcms

Complaints and comments

As is customary in our replies, I would like to explain that if you are
dissatisfied with any aspect of our response to your request for
information and/or wish to appeal against information being withheld from
you please send full details within two calendar months of the date of
this email to: [DCMS request email]

You have the right to ask the Information Commissioner (ICO) to
investigate any aspect of your complaint. Please note that the ICO is
likely to expect internal complaints procedures to have been exhausted
before beginning an investigation.

Dear Department for Culture, Media and Sport,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department for Culture, Media and Sport's handling of my FOI request 'Documents about Internet filters in Digital Economy Act'.

The information held has been deemed to be exempt as a result of the formulation of government policy exemption. This exemption is designed to allow ministers to make policy in a 'safe space'. This exemption certainly applies while policy is being formulated, but it is much harder to sustain an argument for secrecy once the policy is in place. As you know, the DEA is now law, and the clauses apply to ISPs activities. Policy is formulated, and there is a public interest in understanding the justification and interpretation of these clauses.

Furthermore, filtering is itself controversial, because of potential free expression and net neutrality impacts. There is a strong public interest in understanding the government's view of how these are reconciled, not least for the future functioning of the clauses.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/d...

Yours faithfully,

Ed Johnson-Williams
Open Rights Group

FOI Mailbox, Department for Culture, Media and Sport

Thank you for your email which is now being dealt with by the Freedom of
Information Team at the Department for Culture, Media and Sport. 
You will receive a response to your information request within 20 working
days of receipt.
  

no-reply@dcms.ecase.co.uk on behalf of Correspondence Team, Department for Culture, Media and Sport

Internal Review of FOI2017/02989

Edward Johnson-Williams

[FOI #417091 email]

Dear Mr Johnson-Williams,

Thank you for your email of 22 September in which you requested an
internal review of your information request of 3 August.

I am writing to inform you that I am re-examining the handling of your
original request but I will require more time to provide you with a
substantive response. I apologise for this on-going delay and will write
to you again as soon as I can, and no later than 20 November.

Yours sincerely,

David Balloch

Head of Freedom of Information Team

Department for Culture, Media & Sport

4th floor, 100 Parliament Street

London SW1A 2BQ

Tel: 020 7211 6395

www.gov.uk/dcms

no-reply@dcms.ecase.co.uk on behalf of FOI Team, Department for Culture, Media and Sport

Internal Review of FOI2017/02989

Edward Johnson-Williams

[FOI #417091 email]

Dear Mr Johnson-Williams,

Thank you for your email of 22 September in which you requested an
internal review of your information request of 3 August. Your latest
request was as follows:

I am writing to request an internal review of Department for Culture,
Media and Sport's handling of my FOI request 'Documents about Internet
filters in Digital Economy Act'.

The information held has been deemed to be exempt as a result of the
formulation of government policy exemption. This exemption is designed to
allow ministers to make policy in a 'safe space'. This exemption certainly
applies while policy is being formulated, but it is much harder to sustain
an argument for secrecy once the policy is in place. As you know, the DEA
is now law, and the clauses apply to ISPs activities. Policy is
formulated, and there is a public interest in understanding the
justification and interpretation of these clauses.

Furthermore, filtering is itself controversial, because of potential free
expression and net neutrality impacts. There is a strong public interest
in understanding the government's view of how these are reconciled, not
least for the future functioning of the clauses.

Your original request asked:

Thank you for your response. Some information must have been produced
relevant to this policy. Can you send me correspondence with Ofcom
relevant to this policy?

I have dealt with your request under the Freedom of Information Act 2000
(the Act). You have specifically asked for a review of the decision to
withhold information under s.35.1 (a) of the Act. I have re-examined the
handling and scope of your original request and I can confirm that the
department does hold information in scope of your request. However, on
re-examining the request, we consider this information to more accurately
be exempt under section 36.2 (b) (i) and (ii) of the Act because its
disclosure would, or would be likely to, prejudice the effective conduct
of public affairs.

Section 36.2 (b) is also a qualified exemption and I have considered
whether the balance of the public interest favours disclosing or
withholding the information. Information may be exempt under section
36(2)(b) if its disclosure would, or would be likely to, inhibit the
ability of public authority staff and others to express themselves openly,
honestly and completely or to explore extreme options, when providing
advice or giving their views as part of the process of deliberation. The
rationale for this is that inhibiting the provision of advice or the
exchange of views may impair the quality of decision making by the public
authority.

We consider that the release of this information would be likely to
inhibit the free and frank provision of advice or the free and frank
exchange of views for the purposes of deliberation, as releasing it may
result in the following:

- officials may be less likely to record this sort of information if it
were subsequently disclosed, which may adversely affect the ability of
working effectively.

- it may make it more likely that the persons dealing with Government
decisions will not ask for advice in future, which may lead to the wrong
decisions being made.

- it may make it more likely that advice will be given that is materially
different because of the possibility of disclosure.

We therefore believe that the public interest is in favour of withholding
in this instance.

Yours sincerely,

David Balloch

Head of Freedom of Information Team

Department for Culture, Media & Sport

4th floor, 100 Parliament Street

London SW1A 2BQ

Tel: 020 7211 6395

www.gov.uk/dcms

Complaints and comments

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. The Information Commissioner can be contacted at: Information
Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9
5AF

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