Freedom of Information Team
xxx@xxxxx.xxx.xx
Correspondence Unit
www.gov.uk
9 Downing Street
SW1A 2AG
Via:
xxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
Our ref: DEX001304
7 December 2018
Dear Mr Boothe,
FREEDOM OF INFORMATION REQUEST REF: DEX001304 - INTERNAL REVIEW Thank you for your email of 8 August 2018 in which you requested an Internal Review. Your
request for an Internal Review was prompted by the Department for Exiting the European
Union’s (DExEU) response of 7 August 2018 to your request for information under the
Freedom of Information Act 2000 (‘the Act’).
I sincerely apologise for the time taken to complete the review and provide you with a
substantive response. DExEU aims to complete al requests for an internal review within a
maximum of 40 working days, however, this is not always possible.
This letter communicates the outcome of the review. My findings are as fol ows:
The Request On 10 July 2018, you asked for:
Under the Freedom of Information Act, I'd like to receive a copy of the original White Paper
put together by David Davis, Steve Baker and the Department for Exiting the European
Union that was due to be published last month and is now being replaced by the
fundamental outlined as a result of the Chequers Cabinet Meeting on Friday July 6th.
As this original White Paper no longer represents the government's negotiation position, I'd
like to receive a copy and have it published so that the public is able to see what was
included in this White Paper. Clearly a significant amount of resources, funded by taxes in
essence by taxpayers, I believe we have a right to see what our income tax and national
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insurance contributions was spent on.
This original White Paper that I believe was original y finalised in June, must be made
publicly available, as a majority of the public believe this represents the stance that we voted
for on voting day fol owing the EU referendum campaign.
DExEU’s response DExEU responded to your request on 7 August 2018. It confirmed that information relevant to your
request was held, though it did not hold an ‘original White Paper’ but rather draft White Paper material
that was part of developing the White Paper on the future relationship that was published on 12 July.
DExEU therefore considered that the information it held, which is relevant to your request is exempt
from disclosure under sections 27(1)(a)-(d) and 35(1)(a) of the Act.
Request for an Internal Review On 8 August 2018, you requested an Internal Review of your request. You wrote:
I'd like to request an internal review after receiving a reply to my initial request on August-7.
Can we please distinguish between the draft version of the government's White Paper from
May/June when it was due for release, which I shal refer to as the 'Original White Paper' and
the final version published on July-12? I am requesting that the 'original White Paper' be
released to al ow comparisons with the final version published July-12 to be made.
I therefore chal enge the claim made in the response to me, that the DExEU considers the
information contained in the draft from May/June should be exempt from disclosure under
sections 27(1)(a)-(d) and 35(1)(a) of the Freedom of Information Act 2000 (‘the Act’) as there
is a substantial public interest at this time. The difference between this draft I reference that
was produced by David Davis, the Secretary of State, and Steve Baker, the Minister of State,
and the government's White Paper entitled ‘The future relationship between the United
Kingdom and the European Union’, is that the former adhered to what the majority of the
electorate voted for in the 2016 EU referendum vote and the latter does not.
Therefore there is a substantial public interest to understand how the government's position
"evolved" between the 'original White Paper' and the final version published on July-12 to
understand the extent of interference by the Europe Unit in the Cabinet Office and
specifical y the civil servant Oliver Robbins. As the earlier draft from May/June that was due
to be released, the publication of which was repeatedly postponed in order to make further
iterations, the 'original White Paper' does not jeopardise the government's negotiating
position with the European Union.
Outcome of the Internal Review I consider that DExEU was correct to exempt the information that is relevant to your request,
under sections 27(1)(a)-(d) and 35(1)(a) of the Act.
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Further, on reviewing al the material and circumstances of this case, I agree that DExEU
does not hold an “ original White Paper….” but does hold information that is relevant to your
request. As explained in our original response as in al areas of policy making it is usual to
revise and update papers as input and comments are received from Ministers.
I also agree that in weighting the public interest, there are strong arguments in favour of not
disclosing this information because we need to consider:
a) the safe space by which policy officials can freely exchange views and discuss policy
implications
b) that the UK’s relationship with the EU or its Member States are not prejudiced.
Further details are set out below:
I have therefore decided that the public interest is weighted sufficiently in favour of
non-disclosure under sections 27(1)(a)-(d) and 35(1)(a) of the Act.
Section 27 of the Act I consider that DExEU correctly exempted from disclosure, the information it considered
within the scope of your request under section 27(1)(a)-(d) of the Act. These provisions
exempt the disclosure of information if to do so would, or would be likely to, prejudice: (a)
relations between the UK and any other State; (b) relations between the UK and any
international organisation or international court; (c) the interests of the UK abroad, or; (d) the
promotion or protection by the UK of its interests abroad.
I note your view that disclosure of the information, that we consider to be within scope of
your request, is in the public interest. However I have concluded that DExEU was correct to
engage section 27(1)(a)-(d) as releasing the information, would be likely to prejudice our
relationship with the EU and its institutions.
I am therefore satisfied that DExEU correctly considered the public interest factors against
the disclosure of the information under 27(1)(a)-(d) as disclosure would be likely to prejudice
the UK’s relationship with the EU or its Member States, or otherwise prejudice the promotion
or protection by the UK of its interests in the context of the withdrawal negotiations.
Section 35 of the Act I consider that DExEU correctly exempted the information it considered within the scope of
your request under section 35(1)(a) of the Act. This provision exempts information from
disclosure if it relates to the development or formulation of government policy.
Section 35(1)(a) provides an exemption for information that relates to the formulation or
development of government policy, it is a classed based exemption, and the exemption is
engaged as the information in question fal s within the class described in this section.
I note your view that disclosure of the information relevant to your request is in the public
interest as it is information that you consider relates to what the electorate voted for.
However, I consider that DExEU correctly balanced the relevant public interest factors in
determining that the information we hold is exempt from disclosure. On weighting the public
interest, there is a strong argument that those who provide advice to Ministers on policy
matters, including the activity of developing the draft White Paper should be able to do so in
an atmosphere which encourages the free and frank exchange of views and ideas,
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unhindered by the possibility that those opinions wil be prematurely disclosed to the public.
Given the sensitive nature of this activity, I do consider that the consequences of disclosure
would be to undermine the policy formation process considerably and reduce the quality of
decision making behind it.
The Information Commissioner’s guidance on section 35 explains that the purpose of section
35(1)(a) is to protect the integrity of the policymaking process, and to prevent disclosures
which would undermine this process. The scope of section 35(1)(a) is broad and captures a
wide range of information. The Commissioner also recognises that public interest arguments
to withhold wil be strongest when there is a live policy process to consider. The information
in scope fal s into this category.
When considering the balance of the public interest in relation to section 35(1)(a) it is
important to consider the public interest in preserving a space for developing policy. This is
due to the possibility of harm to the quality of that process if those involved were not
confident that their views and opinions could be freely and frankly given without concern of
premature disclosure.
We consider that there is a very strong public interest in being able to carry out this process
effectively, and this may be disrupted if the safe space away from the possibility of disclosure
for carrying out that process is not maintained.
I am therefore satisfied that DExEU correctly considered the public interest factors against
the disclosure of the information under 35(1)(a).
This response ends the complaints process provided by the Department. If you are not
content with the outcome of your internal review, you may 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
Yours sincerely,
D Lam
IR Case Officer
DExEU FOI Team
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