Dear Department for Culture, Media and Sport,

I made this request to the Cabinet Office, and was referred to you - could you help?

"First, I would like copies of all correspondence sent between the Cabinet Office and Kids Company (formally "Keeping Kids Company") in the period 1st November 2014 to 31 December 2014. I would include, in this, correspondence with the staff of the charity and its trustees.

Second, please supply me with all correspondence relating to Kids Company between the Charity Commission and Cabinet Office sent in the period February to June 2015.

I appreciate that functions relating to charities have been passed on to DCMS, so please could you inform me rapidly if you think this material is held by them, rather than the Cabinet Office?"

Yours faithfully,

Chris Cook

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 FOI Team, Department for Culture, Media and Sport

Dear Mr Cook,

Thank you for your information request of 30 October 2017, in which you
requested:

First, I would like copies of all correspondence sent between the Cabinet
Office and Kids Company (formally "Keeping Kids Company") in the period
1st November 2014 to 31 December 2014. I would include, in this,
correspondence with the staff of the charity and its trustees.

Second, please supply me with all correspondence relating to Kids Company
between the Charity Commission and Cabinet Office sent in the period
February to June 2015.

We have dealt with your request under the Freedom of Information Act 2000
(the Act). The Department for Digital, Culture, Media and Sport is now the
policy lead in this area, following the transfer in of the Office for
Civil Society. We can confirm that following a search of our paper and
electronic records, I have established that we hold some of the
information you have requested. However, DCMS is not responsible for
information held by other Ministerial Departments, the Charity Commission
or Crown Prosecution Service.

The Official Receiver has been appointed to investigate the reasons why
the charity went into insolvency and to distribute the remaining assets of
the company to the creditors. Their investigations are still ongoing and
the final report has not yet been concluded. For this reason we consider
that section 31(1)(g), in reliance on section 31(2)(a), (b) and (d),
applies to some of the information held in relation to your request. This
exempts information if its disclosure would be likely to prejudice the
exercise by any public authority of its functions for any of the purposes
listed in subsection (2) of the exemption.

The relevant purposes are in sections 31(2)(a), (b), and (d), which relate
to: (a) ascertaining whether any person has failed to comply with the
law); (b) ascertaining any improper conduct; and (d) ascertaining a
person's fitness or competence in relation to the management of bodies
corporate etc.

Section 31 is a qualified exemption, and I have considered whether the
balance of the public interest favours releasing or withholding this
information. There is a general public interest in disclosure of
information and I recognise that openness in government may increase
public trust in and engagement with the government. I also acknowledge
that there are a considerable number of people such as donors and
employees who have an interest in the events at Kids Company which led up
to it being put into compulsory liquidation.

The information requested in relation to correspondence between Cabinet
Office and Kids Company is being withheld because it is exempt under
section 41(1) of the Act. I am satisfied that disclosure of the
information requested would constitute an actionable breach of confidence,
and that the Cabinet Office could not rely on the defence that an
overriding public interest justified breaching its duty of confidence. The
courts have maintained that there is a very strong general public interest
in protecting confidences and this could only be superseded by an
overriding public interest in disclosure. I do not consider that there is
such an overriding public interest in disclosure of the information
withheld, for example if the information revealed iniquity or fraud or
disclosure was necessary to protect the public from harm. These are among
the conventional public interests that the Courts have accepted as
outweighing the public interest in maintaining a confidence. Though other
public interests may also outweigh the public interest in maintaining
confidences, I do not consider that the general public interest in having
information made available is a compelling public interest capable of
overriding the very strong public interest in maintaining the
confidentiality of this information.

We consider some of the information to be exempt from disclosure under
section 43(2) (commercial interests) of the Act. Section 43(2) exempts
information if its disclosure under this Act would, or would be likely to,
prejudice the commercial interests of any person. Section 43 is a
qualified exemption and I have considered whether the balance of the
public interest favours release of this material. I recognise that there
is a public interest in understanding the discussion of funding between
the Government and Kids Company, and the current consideration of
creditors sum by the Official Receiver. A more general public interest in
disclosure of information and that openness in government may increase
public trust in and engagement with the government. Disclosure of the
information requested might deepen public understanding and so lead to
more informed public consideration of the Government's engagements with
charities that receive public funding. Against these points I have to
weigh the right of a charity to protect its commercial interests, which in
this case relate to its abilities to fundraise, whether from private or
commercial donations, or from the Government.

Whilst Kids Company is no longer a going concern, it is important to
maintain a consistent approach on disclosure. A strong third sector is
very much in the public interest, and any disclosure which potentially
threatens the ability of an individual charity to conduct fundraising,
would not be in the public interest. The Official Receiver is still
considering the position of a number of creditors as well as other matters
connected with the liquidation and have not yet finalised their
investigations. Taking into account all the circumstances of the case, I
have determined that the balance of the public interest favours
withholding this information under section 43(2) of the Act.

The Public Accounts Committee has published a series of recommendations,
which can be found online at this link:

http://www.publications.parliament.uk/pa...

Government responded to these recommendations as follows:

https://publications.parliament.uk/pa/cm...

The Public Administration and Constitutional Affairs Committee also
undertook a short inquiry into the charity's relationship with Government,
which was published on 1 February 2016.

http://www.publications.parliament.uk/pa...

The Government response to the recommendations have been published online:

https://publications.parliament.uk/pa/cm...

The Charity Commission has also announced that it has started an
investigation into Kids Company, which will address concerns about the
administration, governance and financial management of the charity, and
identify wider lessons for other charities and trustees.

I have weighed these public interests against a strong public interest in
the continuing ability of the Official Receiver to carry out its functions
and ongoing investigation into the collapse of Kids Company. It is
contrary to this public interest for investigations by this body to be
impeded or otherwise affected by premature disclosure of information,
particularly as there is already a significant amount of information in
the public domain regarding this issue. In conducting its investigations
the Official Receiver relies on information supplied by third parties.
Disclosure of the withheld information would prejudice the Official
Receiver's investigative functions by inhibiting the responses of those
third parties.

A similar request has already been considered by the Information
Commissioner (decision notice FS50629523) and there has been no
significant change in the circumstances since that decision was published.
Notwithstanding the Information Commissioner's decision, we have looked at
the present request on its merits, but consider that in the circumstances
of this case, the same exemptions apply. Taking into account all the
circumstances of this case, I have concluded that the balance of the
public interest favours withholding this information.

Yours sincerely,

Freedom of Information Team

Department for Digital, 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 'Kids Company correspondence'.

First, in all cases, I would argue that there is exceptionally strong public interest that, in each case, overwhelms the exemptions. This charity received £47m of public money. It sought publicity. The final disbursement was performed only with the aid of a ministerial direction. The chair of trustees was, himself, a public employee. It is a charity whose demise has been blamed for problems fundraising elsewhere.

Second, in the case of section 31, I would argue that - on the contrary - information that explains the context for the decision to strike off the directors ought to be released. There is public interest in understanding why this case is being brought. The current context for this request is widespread fears that skilled people will be dissuaded from taking on charity trusteeships for fear of the consequences of a failure.

Third, I would argue that the section 41 duty of confidence is undermined on several fronts. The ICO guidance states that "the information must have the necessary quality of confidence... it must have been imparted in circumstances importing an obligation of confidence". I am unclear how any charity seeking a bailout could believe that they could be eligible for such a belief, given they were bidding for government cash.

Further, "there must have been an unauthorised use of the information to the detriment of the confider". I am unclear that this condition applies, especially given that the charity has collapsed and the trustees are, as the section 31 claim notes, already in a spot of bother. It is unclear to me what further detriment could result from revealing this documentation.

Fourth, I would note that the defence of the commercial interests of a defunct charity is curious in this case. There is no IP to protect here, no company, no reputation...

Yours faithfully,

Chris Cook

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 FOI Team, Department for Culture, Media and Sport

Internal Review of FOI2017/06669

Mr Chris Cook

[FOI #441840 email]

Dear Mr Cook,

Thank you for your email of 28 November in which you requested an internal
review of our response to your information request of 30 October. 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 'Kids Company
correspondence'.

First, in all cases, I would argue that there is exceptionally strong
public interest that, in each case, overwhelms the exemptions. This
charity received £47m of public money. It sought publicity. The final
disbursement was performed only with the aid of a ministerial direction.
The chair of trustees was, himself, a public employee. It is a charity
whose demise has been blamed for problems fundraising elsewhere.

Second, in the case of section 31, I would argue that - on the contrary -
information that explains the context for the decision to strike off the
directors ought to be released. There is public interest in understanding
why this case is being brought. The current context for this request is
widespread fears that skilled people will be dissuaded from taking on
charity trusteeships for fear of the consequences of a failure.

Third, I would argue that the section 41 duty of confidence is undermined
on several fronts. The ICO guidance states that "the information must have
the necessary quality of confidence... it must have been imparted in
circumstances importing an obligation of confidence". I am unclear how any
charity seeking a bailout could believe that they could be eligible for
such a belief, given they were bidding for government cash.

Further, "there must have been an unauthorised use of the information to
the detriment of the confider". I am unclear that this condition applies,
especially given that the charity has collapsed and the trustees are, as
the section 31 claim notes, already in a spot of bother. It is unclear to
me what further detriment could result from revealing this documentation.

Fourth, I would note that the defence of the commercial interests of a
defunct charity is curious in this case. There is no IP to protect here,
no company, no reputation...

Your original request asked:

First, I would like copies of all correspondence sent between the Cabinet
Office and Kids Company (formally "Keeping Kids Company") in the period
1st November 2014 to 31 December 2014. I would include, in this,
correspondence with the staff of the charity and its trustees.

Second, please supply me with all correspondence relating to Kids Company
between the Charity Commission and Cabinet Office sent in the period
February to June 2015.

I have dealt with your request under the Freedom of Information Act 2000
(the Act). I have re-examined the handling and scope of your original
request and I can confirm that the department does hold some information
in scope of your request. However, we maintain that this information is
exempt from disclosure and that sections 31, 41(1) and 43(2) of the Act
have been properly applied. I believe that the balance of the public
interest was fully considered for the reasons set out it our response of
27 November. I have therefore concluded that I should uphold the decision
given in our response.

The Official Receiver has been appointed to investigate the reasons why
the charity went into insolvency and to distribute the remaining assets of
the company to the creditors. The Charity Commission is also undertaking
an inquiry to investigate and put on public record its findings regarding
the governance and financial management of the charity. For these reasons
we consider that disclosure of any information that would prejudice the
Official Receiver's and/or the Charity Commission's ability to perform
their functions engages the exemption at section 31 of the FOI Act.

The information requested in relation to correspondence between Cabinet
Office and Kids Company is being withheld because it is exempt under
section 41(1) of the Act. I am satisfied that disclosure of the
correspondence between Cabinet Office and Kids Company would constitute an
actionable breach of confidence. The courts have maintained that there is
a very strong general public interest in protecting confidences and this
could only be superseded by an overriding public interest in disclosure. I
do not consider that there is such an overriding public interest in
disclosure of the information withheld.

I am satisfied that the information to be exempt from disclosure under
section 43(2) (commercial interests) of the Act would, or would be likely
to, prejudice the commercial interests of any person. Whilst Kids Company
is no longer a going concern, it is important to maintain a consistent
approach on disclosure. A strong third sector is very much in the public
interest, and any disclosure which potentially threatens the ability of an
individual charity to conduct fundraising, would not be in the public
interest. The Official Receiver is still considering the position of a
number of creditors as well as other matters connected with the
liquidation and have not yet finalised their investigations. Taking into
account all the circumstances of the case, I have determined that the
balance of the public interest favours withholding this information under
section 43(2) of the Act.

The exemption in Section 31 is a qualified exemption and I have considered
whether the balance of the public interest favours releasing or
withholding this information. In conducting their investigations the
Charity Commission and the Official Receiver rely on information supplied
by third parties. Disclosure of the withheld information would prejudice
the Charity Commission's and the Official Receiver's investigative
functions in that these parties would be less likely to express their
views. It is also not in the public interest to disclose tentative or
unsubstantiated views into the public domain when an investigation is
ongoing.

Taking into account all the circumstances of this case, I have concluded
that our original response was correct and the balance of the public
interest favours withholding this information.

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

Looking for an EU Authority?

You can request documents directly from EU Institutions at our sister site AskTheEU.org . Find out more .

AskTheEU.org