Dear  Richard Holt,

Thank you for your request received on 30/01/2024 07:00 for corporate
information (business records) held by The National Archives.

We are handling your request under the Freedom of Information Act 2000 and
have given it reference number CAS-170490-N0Q6P3

We will respond to you by 27/02/2024 19:00 in accordance with the 20
working-day time period laid down by section 10 of the Act.

You can find out more about Freedom of Information on our website:
[1]www.nationalarchives.gov.uk/foi/

Yours sincerely,

FOI Centre Service Advisor
Freedom of Information Centre
Public Access and Government Services Directorate
The National Archives
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Dear  Richard Holt,
 
Thank you for your enquiry of 30th January 2024 in which you asked for
information about the Ministry of Justice’s open consultation: ‘Storage
and retention of original will documents'.

I apologise for our late response. I am writing to inform you that we are
required to conduct a public interest test in relation to your request and
we will let you know the result of this by 27th March 2024.

This is because some of the requested information is covered by
section 43(2) of the Freedom of Information Act 2000.

The FOI Act gives you the right to know whether we hold the information
you want and to have it communicated to you, subject to any exemptions
which may apply.

Section 43(2) of the Act exempts information that, if it was released,
would prejudice the commercial interests of any person, including the
public authority which holds it.

When this exemption applies we are required to consider whether it is in
the public interest to release the information. However, if it is decided
that the public interest would not be served by releasing the information
we will explain the reasons for this.

Some of the requested information is also covered by the exemption at
section 40(2) of the FOI Act.

Section 40(2) exempts personal information about a ‘third party’ (someone
other than the requester), if revealing it would break the terms of Data
Protection Legislation. Data Protection Legislation prevents personal
information from release if it would be unfair or at odds with the reason
why it was collected, or where the subject had officially served notice
that releasing it would cause them damage or distress. Personal
information must be processed lawfully, fairly and in a transparent manner
as set out by Art. 5 of the UK General Data Protection Regulation
(UKGDPR).

We will let you know the outcome of the public interest test as explained
above. In the meantime if you have any queries regarding this email please
do not hesitate to contact us. Remember to quote the reference number
above in any future communications.
 
Yours sincerely,

FOI Assessor
Freedom of Information Centre
Public Access and Government Services
The National Archives
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Dear Richard Holt,
Thank you for your enquiry of 30th January 2024 in which you asked for
information about the Ministry of Justice’s open consultation: ‘Storage
and retention of original will documents'.
 
We are handling your request under the Freedom of Information Act 2000.
 
From our assessment it is clear that we will not be able to answer your
request without further clarification. Under section 1(3) of the Act, a
public authority need not comply with a request unless any further
information reasonably required to locate the information is supplied. 
In order to progress your request we require clarification on part 1a of
your request:
 
1. (a) All communications between the Ministry of Justice (MoJ) and The
National Archives (TNA) and/or The Advisory Council on National Records
and Archives (ACNRA) in relation to the MoJ’s proposals in regard to
probate documents, as discussed in the MoJ’s open consultation: ‘Storage
and retention of original will documents.’ [1] I note that this request
applies to information held both before and after the publication of the
aforementioned consultation.
 
Please confirm if you are requesting:
 
All communications between the Ministry of Justice (MoJ) and The National
Archives (TNA) and all communications between the Ministry of Justice
(MoJ) and The Advisory Council on National Records and Archives (ACNRA)
 
OR
 
All communications between the Ministry of Justice (MoJ) and The National
Archives (TNA), all communications between the Ministry of Justice (MoJ)
and The Advisory Council on National Records and Archives (ACNRA) and all
communications between the The National Archives (TNA) and The Advisory
Council on National Records and Archives (ACNRA)
 
Please provide as much information possible as this will assist us in
providing a more guided response and possibly assist you in getting the
information you require. 
Please send your clarification by reply this email, or by contacting:
 
FOI Centre
The National Archives
Kew
Richmond
Surrey
TW9 4DU
[1][email address]
 
We have now placed your request on hold until we receive clarification
from you. Please quote the reference number CAS-170490-N0Q6P3 in all
correspondence.

If you are dissatisfied with the handling of your request or the decision
which has been reached, you have the right to ask for an internal
review. Internal review requests must be submitted within two months of
the date of this response and should be addressed to:

Quality Manager 
The National Archives
Kew
Richmond
Surrey 
TW9 4DU
[2][email address]
Please mark your complaint clearly. You have the right to ask the
Information Commissioner to investigate any aspect of your complaint.
However, please note that the Information Commissioner is likely to expect
internal complaints procedures to have been exhausted before beginning
his investigation.
 
Yours sincerely,
 
FOI Assessor
Freedom of Information Centre
Public Access and Government Services Directorate
The National Archives 
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1. mailto:[email address]
2. mailto:[email address]

Dear  Richard Holt,

Thank you for your enquiry of 30th January 2024 in which you asked for
information about the Ministry of Justice’s open consultation: ‘Storage
and retention of original will documents'.

We wrote to you on 28th February 2024 to inform you that the requested
information is covered by a qualified exemption under the Freedom of
Information Act 2000. This requires us to carry out a public interest test
to determine whether the information can be released.

The test is still being considered and we hope to have reached a decision
by 26th April 2024. 
We hoped it would have been completed by this time but unfortunately a
decision has not yet been reached. Under the FOI Act we are allowed a
reasonable period of time to conduct the test, and where a case raises
complex public interest considerations we are permitted to extend the time
allowed to reach a decision.

To remind you, the exemption being considered is section 43(2) of the
Act. Section 43(2) of the Act exempts information that, if it was
released, would prejudice the commercial interests of any person,
including The National Archives itself.

Some of the requested information is also covered by the exemption at
section 40(2) of the FOI Act.

Section 40(2) exempts personal information about a ‘third party’ (someone
other than the requester), if revealing it would break the terms of Data
Protection Legislation. Data Protection Legislation prevents personal
information from release if it would be unfair or at odds with the reason
why it was collected, or where the subject had officially served notice
that releasing it would cause them damage or distress. Personal
information must be processed lawfully, fairly and in a transparent manner
as set out by Art. 5 of the UK General Data Protection Regulation
(UKGDPR).

I would like to thank you for your continued patience in this matter. In
the meantime if you have any queries regarding this email please do not
hesitate to contact us. Remember to quote the reference number above in
any future communications.

Yours sincerely,

FOI Manager
Freedom of Information Centre
Public Access and Government Services
The National Archives
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Dear Richard Holt,
Thank you for your email. As referenced in the [1]Cabinet Office Freedom
of Information Code of Practice (4.5), an extension is permitted “until
such time as is reasonable in the circumstances”, taking account, for
example, of where the information is especially complex or voluminous, or
where a public authority needs to consult third parties. We are also
currently considering whether other exemptions under the FOI Act are
appropriate to the information held and we will update you if an exemption
is confirmed to be applicable.
Whilst we acknowledge that it is best practice for an extension to be for
no more than a further 20 working days, as referenced in the Code of
Practice (4.6), we consider a further extension to be appropriate in this
case due to the complexity and volume of the material. Furthermore, please
note that this second extension period will not be exhausted until
26th April 2024.  
Yours sincerely, 
FOI Manager
Freedom of Information Centre
Public Access and Government Services Directorate
The National Archives
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https://assets.publishing.service.gov.uk...

Dear  Richard Holt,
Thank you for your enquiry of 30th January 2024 in which you asked for
information about the Ministry of Justice’s open consultation: ‘Storage
and retention of original will documents'.
 
We wrote to you previously to inform you that some of the requested
information is covered by a qualified exemption under the Freedom of
Information Act 2000. This requires us to carry out a public interest test
to determine whether the information can be released.

The test is still being considered and we will respond to your request by
2nd May 2024.

We hoped it would have been completed by this time but unfortunately a
decision has not yet been reached. Under the FOI Act we are allowed a
reasonable period of time to conduct the test, and where a case raises
complex public interest considerations we are permitted to extend the time
allowed to reach a decision.

To remind you, the exemption being considered is 43(2) of the Act. Section
43(2) of the Act exempts information that, if it was released, would
prejudice the commercial interests of any person, including The National
Archives itself.
 
We are now also considering section 36(2) (a), 36(2) (b) and 36 (2)(c) of
the Act

Section 36(2) (a) of the Act exempts information that, would, or would be
likely to, prejudice the maintenance of the convention of the
collective responsibility of Ministers of the Crown.

Section 36(2) (b) of the Act exempts information that, if it was released,
would inhibit (i) the free and frank provision of advice and (ii) the free
and frank exchange of views for the purposes of deliberation.

Section 36(2) (c) of the Act exempts information that, if it was released,
would otherwise prejudice the effective conduct of public affairs.

Some of the requested information is also covered by the exemption at
section 40(2) of the FOI Act.

Section 40(2) exempts personal information about a ‘third party’ (someone
other than the requester), if revealing it would break the terms of Data
Protection Legislation. Data Protection Legislation prevents personal
information from release if it would be unfair or at odds with the reason
why it was collected, or where the subject had officially served notice
that releasing it would cause them damage or distress. Personal
information must be processed lawfully, fairly and in a transparent manner
as set out by Art. 5 of the UK General Data Protection Regulation
(UKGDPR).

I would like to thank you for your continued patience in this matter. In
the meantime if you have any queries regarding this email please do not
hesitate to contact us. Remember to quote the reference number above in
any future communications.

Yours sincerely,

FOI Manager
Freedom of Information Centre
Public Access and Government Services
The National Archives
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Dear Mr. Holt,

Thank you for your enquiry of 30^th January 2024, in which you asked The
National Archives for information about the MoJ’s proposals in regards to
probate documents.

Your request has been handled under the Freedom of Information (FOI) Act
2000. The FOI Act gives you the right to know whether we hold the
information you want and to have it communicated to you, subject to any
exemptions which may apply.

I can confirm that The National Archives holds information relevant to
your request and we are pleased to be able to provide some of this
information to you.

We are unable to provide you with some of the information you have
requested because it is covered by exemptions at sections 31(1)(a),
36(2)(a-c), 40(2) and 43(2) of the FOI Act.

Section 31(1) (a) of the Act exempts information that, if it was released,
would prejudice the prevention or detection of crime.

Section 36(2)(a)(i) exempts information that would, or would be likely to,
prejudice the maintenance of the convention of the collective
responsibility of Ministers of the Crown. 
Section 36(2)(b)(i)(ii) exempts information that would, or 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.
 
Section 36(2)(c) exempts information that would otherwise prejudice, or
would be likely to otherwise to prejudice, the effective conduct of public
affairs.
Section 40(2) exempts personal information about a ‘third party’ (someone
other than the requester), if revealing it would breach the terms of Data
Protection Legislation.

Section 43(2) exempts information whose disclosure would be likely to
prejudice the commercial interests of any person or legal body.

Your request

Please provide me with the following information:

1. (a) All communications between the Ministry of Justice (MoJ) and The
National Archives (TNA) and/or The Advisory Council on National Records
and Archives (ACNRA) in relation to the MoJ’s proposals in regard to
probate documents, as discussed in the MoJ’s open consultation: ‘Storage
and retention of original will documents.’ [1] I note that this request
applies to information held both before and after the publication of the
aforementioned consultation.

Contextual Background:

Probate documents are mentioned under section 124 of the Senior Court Act
1981 (SCA), as amended, and are public records that are open to public
inspection. Wills were formerly mentioned under the Public Records Act
1958 (PRA) in section 8(2), but this section was repealed by section
152(4), Sch.7 SCA due to being replaced by section 124 SCA. Nevertheless,
the documents’ status as public records remains, and the PRA should still
apply in a number of ways.

Regardless of the relevant legislation, the MoJ will have a number of
statutory obligations in relation to probate documents, which are public
records and therefore still subject to the PRA. For example, The National
Archives’ guidance entitled ‘Digitisation’ gives recommendations to
Government departments. This guidance states:

“Where departments choose to digitise records, for whatever reason, both
the original record and the digitised version are public records and so
must be disposed of under the terms of the Public Records Act (PRA).
Before embarking on any digitisation project, The National Archives (TNA)
would recommend that plans are shared with The Advisory Council on
National Records and Archives (ACNRA), to help the Departmental Records
Officer (DRO) ensure independent oversight and that all relevant guidance
is followed. This is particularly important if:

- digitisation is likely to cause damage to the original physical record;
- the intention is to destroy original records that were selected for
transfer to TNA;
- the benefits to the public purse of digitising records with either very
high or very low selection rates are unclear; or
- the outcome of the digitisation project does not help develop ways of
the department using AI in selection techniques.” [2]

1. (b) I am therefore also requesting any information held in relation to
the MoJ following the process outlined in the aforementioned guidance.

2. All internal correspondence relating to the MoJ’s open consultation and
proposals.

2. The download figures from TNA website, broken down by total of
downloads per year and also by item (if possible) for all PROB 11
registered copy wills available via Discovery up until the end of 2023.
[3]

3. If held, the annual download and/or access figures for the entire
collection of PROB 11 registered copy wills in the Ancestry collection
‘England & Wales, Prerogative Court of Canterbury Wills, 1384-1858’ found
at: https://www.ancestry.co.uk/search/collec.... [4] Please
provide these figures from the time the collection appeared on Ancestry up
until the end of 2023, if this is possible to do so. I note that it’s
possible that the contract with Ancestry might include provisions for TNA
to access certain information in regard to public access to this
collection, or that this information might be held by Ancestry on your
behalf. I would welcome any clarification regarding whether to not TNA
have access to this information, or can request this information from
Ancestry.

Yours faithfully,

Endnotes:

[1] Storage and retention of original will documents, 15th December 2023,
available at: https://www.gov.uk/government/consultati... documents,
accessed: 30th January 2024.

[2] Information management > How to manage your information > Preserving
digital records > Digitisation, The National Archives, available at:
https://www.nationalarchives.gov.uk/info..., accessed: 30th January 2024.

[3] Prerogative Court of Canterbury and related Probate Jurisdictions:
Will Registers, PROB 11, The National Archives, Catalogue Description,
available at: https://discovery.nationalarchives.gov.u...,
accessed: 30th January 2024.

[4] England & Wales, Prerogative Court of Canterbury Wills, 1384-1858,
PROB 11, The National Archives, Digital Database, Ancestry, available at:
https://www.ancestry.co.uk/search/collec..., accessed: 30th
January 2024.

Further clarification was provided on part 1(a). The request was clarified
to specifically include:

All communications between the Ministry of Justice (MoJ) and The National
Archives (TNA), all communications between the Ministry of Justice (MoJ)
and The Advisory Council on National Records and Archives (ACNRA) and all
communications between the The National Archives (TNA) and The Advisory
Council on National Records and Archives (ACNRA)

In summary, this includes any communications between any of the following:

a) The Ministry of Justice (MoJ)
b) The National Archives (TNA)
c) The Advisory Council on National Records and Archives (ACNRA)

I wish to further clarify my request where I stated: "that this request
applies to information held both before and after the publication of the
aforementioned consultation." The phrase "before and after" is to include
all correspondence between any of the above named parties (the MoJ, TNA
and ACNRA) on the topic of storage and/or retention of original will (or
probate) documents, which is not necessarily linked specifically to the
consultation.

Our response

Please find attached a PDF of relevant correspondence relating to parts 1
and 2 of your request. Some of this information is exempt under sections
36(2)(a-c) and 40(2) of the FOI Act. Information on one page is also
exempted under section 31(1)(a) of the FOI Act. For further information
concerning the application of these exemptions, please see the explanatory
annex below.

Some of this correspondence includes attachments, the content of which has
been inserted after each email chain in which the attachment was provided.
Two of these attachments have been exempted in full under section 36(2) of
the FOI Act and have been marked as such on the PDF.

Some information in the PDF is not relevant within the parameters of your
request and has been removed using redaction markings. Where information
is not relevant, this has been marked on the PDF.

Please also find attached a CSV of the download figures from the TNA
website, broken down by total of downloads per year, and also by item, for
all PROB 11 records available via Discovery up until the end of 2023. We
hold information dating from 2015.
 
The data on the CSV will be sent via separate emails due to the size of
the file, which will be split into multiple parts.

Information held in response to part 3 and [4] of your request is exempt
under section 43(2) of the FOI Act. For further information concerning the
application of this exemption, please see the explanatory annex below.

The information you have been supplied with may contain personal
information about another person that falls within the scope of Data
Protection Legislation. Use of this information must comply with the terms
of this legislation:
[1]http://www.legislation.gov.uk/ukpga/2018...

If you are dissatisfied with the handling of your request or the decision
which has been reached, you have the right to ask for an internal review. 
Internal review requests must be submitted within two months of the date
of this response and should be addressed to:

Quality Manager
Visitor Experience
The National Archives
Kew
Richmond
Surrey
TW9 4DU
[2][email address]

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

Yours sincerely,

FOI Manager
Freedom of Information Centre
Public Access & Government Services
The National Archives

EXPLANATORY ANNEX – exemptions engaged under the FOI Act

Section 31: Law Enforcement

Section 31(1)(a) of the Act exempts information that, if it was released,
would prejudice the prevention or detection of crime.

This exemption applies to a small amount of information on page 106 of the
PDF attachment.

Section 31 is a qualified exemption and we are required to conduct a
Public Interest Test when applying any qualified exemption. This means
that after it has been decided that the exemption is engaged, the public
interest in releasing the information must be considered. If the public
interest in disclosing the information outweighs the public interest in
withholding it then the exemption does not apply and the information must
be released. In the FOIA there is a presumption that information should be
released unless there are compelling reasons to withhold it.

The Public Interest Test has now been concluded and the balance of the
public interest has been found to fall in favour of withholding
information covered by this exemption. 

Public Interest Test

Factors in favour of disclosure:

Disclosure would provide information about security issues relating to the
storage and protection of national records. There is an inherent public
interest in disclosing information on this subject.

Factors in favour of non-disclosure:

Disclosure would likely cause prejudice to the security of The National
Archives collection of historical records and make them more vulnerable to
theft or malicious damage. This would be prejudicial to The National
Archives’ obligations and responsibilities under the Public Record Act.

Outcome of the Public Interest Test:

Although the presumption in favour of disclosure has been taken into
account, the balance of the Public Interest Test is found to weigh in
favour of non-disclosure. There is a significant public interest in
withholding information that could be exploited by malicious actors, and
which would therefore be likely to cause prejudice to the security of
records in The National Archives’ custody.

Section 36: Prejudice to Effective Conduct of Public Affairs

Section 36(2) (a-c) exempts information from release if, in the reasonable
opinion of TNA’s qualified person, disclosure of the information would, or
would be likely to; prejudice (a)(i) the maintenance of the convention of
the collective responsibility of Ministers of the Crown, (b)(i) inhibit
the free and frank provision of advice, (b)(ii) the free and frank
exchange of views for the purposes of deliberation, or would otherwise
prejudice, or would be likely to otherwise prejudice,(c) the effective
conduct of public affairs.

The opinion of TNA’s Qualified Person, who in this case is the Chief
Executive and Keeper of The National Archives, has been provided and in
his reasonable opinion this exemption is engaged for information relevant
to this request.

Section 36 is a qualified exemption, and we are required to conduct a
Public Interest Test (PIT) when applying a qualified exemption. This means
that after it has been decided that the exemption is engaged, the balance
of the PIT in releasing the information must be considered. If the public
interest in disclosing the information outweighs the public interest in
withholding it then the exemption does not apply and the information must
be released. In the FOI Act there is a presumption that information should
be released unless there are compelling reasons to withhold it. The PIT
has now been concluded and a summary of the PIT considerations can be seen
below.

Public Interest Test

Factors in favour of disclosure:

Considerations in favour of the release of the information included the
principle that there is a public interest in showing a true and open
account of government decision-making, making for greater accountability
and increasing public confidence in the integrity of the decisions made.
There is also a general public interest in being able to evaluate
information relating to government policy; in this case proposals made by
the Ministry of Justice (MoJ) regarding the preservation of probate
records.

Disclosure may strengthen public confidence in the detailed liaison
between The National Archives and other government departments regarding
decisions made on preservation of the public record.

The MoJ proposals relate to important issues around the preservation of
the public record, and there is value in providing the public with
information about TNA’s communications with the MoJ, with the Advisory
Council of National Records and Archives (ACNRA) and with Ministers
regarding the MoJ’s proposals.

Release would be likely to highlight the how TNA and other government
departments engage with their responsibilities under the Public Records
Act.

Factors in favour of non-disclosure:

Section 36(2)(a)(i); information likely to prejudice the maintenance of
the convention of the collective responsibility of Ministers of the Crown.

Disclosure of communications with and from Ministers which elucidate the
opinions of individual Ministers would likely prejudice the maintenance of
the convention of the collective responsibility of Ministers of the Crown.
This is particularly relevant whilst a policy issue, such as the MoJ’s
proposals concerning probate records, is ongoing, and a public
consultation is live. Disclosure of information at this time would
therefore contravene the principle of maintaining collective
responsibility on policy issues.

Section 36(2)(b)(i)(ii): information that 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.

Disclosure of some elements of free and frank opinion and comments made by
TNA staff in relation to the analysis and discussion of, and commentary
upon and reactions to the MoJ’s proposals, would likely cause a chilling
effect within TNA and inhibit the quality of recorded information, thereby
inhibiting the quality of the decision-making process. This would be
antithetical to the fostering of an atmosphere in which staff are
encouraged to offer honest and forthright opinions without fear that their
commentary would be unfairly and inappropriately disclosed. Staff require
a safe space to debate issues and suggest opinions, and the requirement to
protect this is particularly important whilst an issue is still live.

Disclosure of free and frank comment concerning opinions and intentions,
deriving from communications between the MoJ and TNA, and between the
Advisory Council on National Records and Archives (ACNRA) and TNA, would
also likely instigate a chilling effect in terms of the quality of
communications, and in the level of engagement between TNA and other
bodies and government departments. This will also be detrimental to the
sharing of information and will similarly be likely to inhibit the
decision-making process.

The disclosure of information concerning the drafting of communications
would similarly be inappropriate to disclose due to the likely impact of a
chilling effect. Disclosure would likely result in TNA staff members being
less likely to record comments and suggested edits in the drafting of
communications, which would thereby inhibit the quality of the final
versions of official communications.

Section 36(2)(c); information that would otherwise prejudice, or would be
likely to otherwise to prejudice, the effective conduct of public affairs.

As the national repository of government records, TNA must maintain the
integrity of working relationships with transferring departments such as
the Ministry of Justice and other bodies such as the Advisory Council on
National Records and Archives (ACNRA). The disclosure of some commentary
covered by this request would likely be seen to be prejudicial to these
working relationships, thereby inhibiting the conduct of public affairs by
causing harm to TNA’s ability to fulfil its statutory requirements and
public mission to work closely with partners across government. In
particular, TNA must continue to work closely with the MoJ over its
proposals, and to exchange views and offer guidance and advice as an
institution that is the custodian of the national record.

Outcome of the Public Interest Test:

After careful consideration, it has been decided that the balance of the
Public Interest Test lies in favour of withholding the information on this
occasion and that the factors for non-disclosure outweigh any benefits of
release.

Disclosure of information that would likely prejudice the maintenance of
the convention of the collective responsibility of Ministers of the Crown,
prejudice the free and frank provision of advice and opinion, and be
prejudicial to TNA’s statutory obligations as the custodian of national
records, is seen to outweigh the presumption in favour of disclosure.

The National Archives has considered the information relevant to this
request and has disclosed the requested information with redactions,
thereby acting in the interests of transparency and disclosing information
where possible, and only withholding what is considered to be strictly in
the public interest under this exemption.

Further guidance on the application of this exemption can be found at:
[3]https://ico.org.uk/for-organisations/foi...

Section 40(2): Personal Information where the applicant is not the data
subject

Section 40 exempts personal information about a ‘third party’ (someone
other than the requester), if revealing it would breach the terms of Data
Protection Legislation. Data Protection Legislation prevents personal
information from release if it would be unfair or at odds with the reason
why it was collected, or where the subject had officially served notice
that releasing it would cause them damage or distress. Personal
information must be processed lawfully, fairly and in a transparent manner
as set out by Art. 5 of the United Kingdom General Data Protection
Regulation (UK GDPR).

In this case the exemption applies because the requested material contains
information which would identify individual members of the Advisory
Council on National Records and Archives (ACNRA), as well as junior
members of staff at The National Archives (TNA). Contact details of all
staff have also been withheld as disclosure would be considered unfair to
the data subjects.

Publishing the names, contact details, and any other identifying details
of Advisory Council members, as well as junior members of staff at TNA
(those below Head of Department level) is considered an unfair use of
personal data in the context of the information being provided. These
individuals would have no expectation that their personal information
would be made available in the public domain; to do so would be unfair and
contravene the first data protection principle of the Data Protection Act.
As such, the names, positions and contact details of these individuals are
withheld under section 40(2) of the FOI Act.

Further guidance about the publication of staff names can be found here:
[4]https://ico.org.uk/media/fororganisation...

Further guidance on the application of this exemption can be found here:
[5]https://ico.org.uk/media/for-organisatio...

Section 43(2): Commercial Interests

This section exempts information whose disclosure would be likely to
prejudice the commercial interests of any person or legal body. In this
case, the exemption applies because release would prejudice the commercial
interests of Ancestry, and indirectly, those of The National Archives.

Section 43(2) is a qualified exemption and we are required to conduct a
Public Interest Test when applying any qualified exemption. This means
that after it has been decided that the exemption is engaged, the public
interest in releasing the information must be considered. If the public
interest in disclosing the information outweighs the public interest in
withholding it then the exemption does not apply and the information must
be released. In the FOIA there is a presumption that information should be
released unless there are compelling reasons to withhold it.

The Public Interest Test has now been concluded and the balance of the
public interest has been found to fall in favour of withholding
information covered by the section 43(2) exemption. 

Public Interest Test

Factors in favour of disclosure:

Considerations in favour of the release of the information included The
National Archives’ commitment to openness and transparency in its
commercial activities, to allow public scrutiny and to demonstrate that
public funds are being used in an efficient and effective
way. Furthermore, private sector companies engaging in commercial
activities with the public sector must expect scrutiny over their
interaction with public authorities. In this instance there is a general
public interest in scrutinising information shared with The National
Archives by Ancestry.

Factors in favour of non-disclosure:

Considerations against disclosure included the recognition that disclosure
is likely to provide information to direct competitors within the market
that would create an imbalance and a commercial advantage to those
competitors. Furthermore, disclosure of this information is also likely to
affect The National Archives’ ability to negotiate contracts in the future
and consequently generate revenue from non-public funds. It is also
considered that disclosure would be likely to deter potential bidders for
future contracts from competing and sharing commercially sensitive
information with us.

Specifically, it has been judged that disclosure of the requested
information would be likely to be prejudicial to Ancestry’s commercial
bargaining power. The information requested was provided to The National
Archives confidentially, and constitutes confidential Information for the
purposes of the confidentiality provisions at section 10 of the Framework
Licence Agreement. Disclosure of this confidential information would be
prejudicial to Ancestry’s commercial interests.

Outcome of the Public Interest Test:

In summary, it is considered that the balance of the Public Interest Test
lies in non-disclosure of the information requested in parts 3 and [4] of
the request. Although there is a general presumption of transparency in
the FOI Act, disclosure is in balance seen to unduly prejudice the
commercial interests of both Ancestry and The National Archives. This
prejudice would outweigh the benefits of release. It would not be in the
public interest to prejudice the commercial interests of Ancestry, and The
National Archives’ ability to engage with the private sector due to the
reputational damage that would result from disclosure. It has therefore
been decided that the balance of the public interest lies in favour of
withholding relevant information on this occasion.

Further guidance on the application of this exemption can be found here:
[6]https://ico.org.uk/for-organisations/foi...

 
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References

Visible links
1. http://www.legislation.gov.uk/ukpga/2018...
2. mailto:[email address]
3. https://ico.org.uk/for-organisations/foi...
4. https://ico.org.uk/media/fororganisation...
5. https://ico.org.uk/media/for-organisatio...
6. https://ico.org.uk/for-organisations/foi...

Dear Mr. Holt,
 
Regarding FOI request CAS-170490, please find attached the first half of a
CSV file containing download figures from the TNA website, broken down by
total of downloads per year, and also by item, for all PROB 11 records
available via Discovery up until the end of 2023. This file contains rows
1 to 199,999.
 
Yours sincerely,

FOI Manager
Freedom of Information Centre
Public Access & Government Services
The National Archives
 
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Dear Mr. Holt,
 
Regarding FOI request CAS-170490, please find attached the second half of
a CSV file containing download figures from the TNA website, broken down
by total of downloads per year, and also by item, for all PROB 11 records
available via Discovery up until the end of 2023. This file contains data
on rows 200,000 onwards.
 
Yours sincerely,

FOI Manager
Freedom of Information Centre
Public Access & Government Services
The National Archives
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