Freedom of Information Act 2000 (Section 50)
Date: 16 November 2009
[30 page PDF]
The complainant requested information in relation to the issue of whether or not a public inquiry should be held into the London bombings which occurred on 7 July 2005. The Home Office refused the request citing the exemptions at sections 21 (information accessible to applicant by other means), 23 (information supplied by, or relating to, bodies dealing with security matters), 35 (formulation of government policy) and 36 (prejudice to effective conduct of public affairs). During the course of the Commissioner’s investigation, the Home Office additionally cited section 42 (legal professional privilege) in relation to some of the withheld information.
The Commissioner has investigated and found that the exemptions are engaged. However, in relation to section 36, he finds the public interest in maintaining the exemption does not outweigh the public interest in disclosure. He therefore requires the Home Office to disclose the information withheld by virtue of section 36. The Commissioner has also identified a series of procedural shortcomings on the part of the public authority relating to delay (sections 10(1) and 17(1)) and failure to specify appropriately the exemptions cited and the reason they applied (section 17(1))c)).
5. The complainant wrote to the Home Office on 26 June 2006 requesting:
‘Please would you let me know in writing if you hold information of the following description:
The issue of whether a public inquiry should be held into the London bombings of July 7 2005’.
The opinion of the ‘qualified person’
77. Sections 36(2)(b)(i) and (ii) are engaged when, in the reasonable opinion of the qualified person, disclosure would or would be likely to lead to, respectively, inhibition of the free and frank provision of advice or the free and frank exchange of views for the purposes of deliberation. When considering whether section 36(2)(b)(i) and (ii) are engaged, the Commissioner will take into account:
• whether an opinion was given;
• whether the person who gave that opinion is the qualified person for the public authority in question;
• when the opinion was given; and
• whether the opinion is reasonable.
78. The Home Office has stated that the opinion that inhibition would be likely to result was given by Mr Tony McNulty, who, at the time of the request, was the Minister of State for policing, security and community safety. The Commissioner is satisfied that this was an appropriate ‘qualified person’ as laid down in section 36(5) of the Act. The Home Office also confirmed that the opinion was sought on 23 November 2006 and given on 24 November 2006.
79. Section 36(5)(a) provides that the qualified person for a government department will be any Minister of the Crown [i.e. Privvy Councillor]. It has been established, therefore, that an opinion was given, that this opinion was given by an qualified person for the Home Office and that this opinion was given on 24 November 2006.
80. The next step is to consider whether the opinion is reasonable. The Commissioner will generally take into account two main factors here: what the qualified person took into account when forming his opinion and the content of the withheld information itself.
138. The Commissioner requires the public authority to take the following steps to ensure compliance with the Act.
The Home Office should provide the complainant with the information withheld by virtue of section 36(2)(b)(i) and (ii). This is identified in the separate confidential Schedule which has been provided to the public authority.
139. The public authority must take the steps required by this notice within 35 calendar days of the date of this notice [21st December 2009].
|I am requesting whether the information in respect of FOI ref: FS50162256 referred to in the commissioner's decision notice dated 16/11/2009 was released by the Home Office.|
If so, is the Home Office response publicly available and can I request a copy
|Case Number EA/2009/0116|
Appellant Home Office
Date Received 15-Dec-09
ICO Decision Reference FS50162256
Date ICO Reply Due (Date Received + 28 days) 05-Jan-10
Public Authority Involved Home Office
Current Status Full Hearing
Hearing Details Booked Oral hearing on 30/04/10; venue to be confirmed