Acknowledging a request (FOI standard letter) by Guttermouth

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									                                                            Roshnee Patel
                                                            Policy Advisor
                                                            Information Directorate
                                                            Data Protection (Domestic)
                                                            Ministry of Justice
                                                            6th Floor, Area B
                                                            102 Petty France
                                                            London
                                                            SW1H 9AJ

                                                            T 020 3334 5231
                                                            E
                                                            xxxxxxx.xxxxx@xxxxxxx.xxx.xxx.xx
                                                            www.justice.gov.uk




Steve Hankin
xxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx

Our Reference: 60478
                                                                       17 August 2009


Dear Mr Hankin,


Re: Freedom of Information Request


I am writing in response to your request for information dated 17 July in which you asked
for:

“…all correspondence concerning the company "121Media" or "Phorm" that have
taken place between the Ministry of Justice and Information Commissioners Office
within the period 1st January 2006 to 11th July 2009.”

Your request has been handled in accordance with the Freedom of Information Act (FoIA)
as a request for information.

I can confirm that the department holds information within the scope of your request.

After careful consideration, I have concluded that some of the information I have located
is exempt from disclosure under section 35(1)(a), which applies to the formulation of
Government policy. I have also concluded that some of the additional information within
the scope of your request is exempt under section 27(1)(b) (International relations) and
section 42(1) (Legal professional privilege).

All three exemptions are qualified and so it is necessary to assess the balance of the
public interest when deciding whether or not to disclose the information. This assessment
is outlined in the below.
Section 27: International Relations
Under section 27(1)(a) of the FoIA, information is exempt if disclosure under the Act
would, or would be likely to, prejudice relations between the United Kingdom and any
international organisation or international court. As mentioned above, section 27 is a
qualified exemption and so is subject to a public interest test:

Arguments in Favour of Disclosure
There has been considerable interest surrounding the exchange between the UK
Government and the European Commission regarding Phorm technology. The release of
this information might provide reassurance to the public that Government takes the
privacy concerns surrounding this matter seriously and is fully engaged with the
Commission.

Arguments Against Disclosure
However effective conduct of international relations depends upon maintaining trust and
confidence between states and international organisations; the disclosure of information
relating to the UK’s consideration of points raised by the European Commission and vice
versa could undermine this trust and confidence.


Section 35: Formulation of Government Policy
Under section 35(1)(a) the FoIA states that information is exempt if it relates to the
formulation or development of government policy. Section 35 is a qualified exemption and
so is subject to a public interest test:


Arguments in Favour of Disclosure
Disclosure could enable a greater understanding of the Government’s views and actions
regarding Phorm/121 media. Policy in this area is still being developed and the release of
relevant information could help promote awareness of the issues that Government is
currently considering and help the public to engage with this process. It could also
enhance transparency in how the Government makes policy decisions.

Arguments Against Disclosure
Good government depends on being able to rely on the best advice available and
exploring thoroughly all of the potential options without fear that this consideration will be
made public while the issue, or related matters are still live. Releasing the information
you have requested at this stage while the issues in relation to Phorm are still ongoing,
could reduce the fullness and clarity of advice and discussion. This would compromise
the quality of Government’s decision-making. Further to this, you may be aware that the
Crown Prosecution Service is still considering whether to allow a private prosecution of
the Phorm technology and it would be inappropriate to disclose any information that might
impact on this decision.


Section 42: Legal Professional Privilege
Section 42(1) exemption of the FoIA applies to information relating to legal professional
privilege. This is a qualified exemption and therefore also subject to a public interest test:

Arguments in Favour of Disclosure
Part of the formulation of this advice on Phorm technology, involved the seeking of legal
advice. I can understand why the release of this information would be in the public
interest, as this would reassure the public that decisions taken by government are within
a fully informed legal context. As you may be aware, the European Commission have
taken in interest in Phorm technology for some time and they issued an Infraction Letter
to the UK Government on 14 April 2009. In light of this, being informed of which legal
arguments are being deployed in the response to the Commission’s Infraction Letter may
inform the public about the Government’s thinking process.

Arguments Against Disclosure
However, disclosure of information relating to legal advice at this time has the potential to
prejudice the government’s ability to defend its legal interests - both directly, by unfairly
exposing its legal position to challenge, and indirectly by diminishing the reli ance it can
place on the advice having been fully considered and presented without fear or favour;
neither of these outcomes are in the public interest. In addition, on 15 June 2009, the UK
Government responded to the Infraction Letter and legal advice has been part of this
process. It would therefore be unsuitable to release this information at this time.

Having weighed up the considerations set out above, I believe that the public interest is in
favour of withholding the information exempt under s27, s35 and s42.


As part of our obligations under the FOIA, the Ministry of Justice has an independent
review process. If you are dissatisfied with this decision, you can write to request an
internal review. The internal review will be carried out by someone who did not make the
original decision, and they will re-assess how the Department handled the original
request. If the original decision was erroneous, a new decision can be substituted in its
place.

If you wish to request an internal review, please write or send an email to the Data
Access and Compliance Unit within two months of the date of this letter, at the following
address:
Data Access and Compliance Unit
Information Directorate
Ministry of Justice
6th Floor, 6.23
102 Petty France
London
SW1H 9AJ
E-mail: xxxx.xxxxxx@xxxxxxx.xxx.xxx.xx


If you remain dissatisfied after an internal review decision, you have the right to apply to
the Information Commissioner’s Office under Section 50 of the FOIA. You can contact
the Information Commissioner’s Office at the following address:
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Internet: https://www.ico.gov.uk/Global/contact_us.aspx

Yours sincerely


Miss R Patel

								
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