Section 35 of the Freedom of Information Act provides that:
Information held by a government department or by the National Assembly
for Wales is exempt information if it relates to-
(a) the formulation or development of government policy,
(b) Ministerial communications,
(c) the provision of advice by any of the Law Officers or any request
for the provision of such advice, or
(d) the operation of any Ministerial private office.
Once a decision as to government policy has been taken, any statistical
information used to provide an informed background to the taking of
the decision is not to be regarded-
(a) for the purposes of subsection (1)(a), as relating to the formulation
or development of government policy, or
(b) for the purposes of subsection (1)(b), as relating to Ministerial
communications.
The duty to confirm or deny does not arise in relation to information
which is (or if it were held by the public authority would be) exempt
information by virtue of subsection (1).
In making any determination required by section 2(1)(b) or (2)(b)
in relation to information which is exempt information by virtue of
subsection (1)(a), regard shall be had to the particular public interest
in the disclosure of factual information which has been used, or is
intended to be used, to provide an informed background to decision-taking.
In this section-
"government policy" includes the policy of the
Executive Committee of the Northern Ireland Assembly and the policy
of the National Assembly for Wales;
"the Law Officers" means the Attorney General, the Solicitor General,
the Advocate General for Scotland, the Lord Advocate, the Solicitor General
for Scotland and the Attorney General for Northern Ireland;
"Ministerial communications" means any communications-
(a) between Ministers of the Crown,
(b) between Northern Ireland Ministers, including Northern Ireland
junior Ministers, or
(c) between Assembly Secretaries, including the Assembly First
Secretary,
and includes, in particular, proceedings of the Cabinet or of any
committee of the Cabinet, proceedings of the Executive Committee
of the Northern Ireland Assembly, and proceedings of the executive
committee of the National Assembly for Wales;
"Ministerial private office" means any part of a government department
which provides personal administrative support to a Minister of the Crown, to
a Northern Ireland Minister or a Northern Ireland junior Minister or any part
of the administration of the National Assembly for Wales providing personal
administrative support to the Assembly First Secretary or an Assembly Secretary;
"Northern Ireland junior Minister" means a member of the Northern
Ireland Assembly appointed as a junior Minister under section 19 of the Northern
Ireland Act 1998.
General points
1.1 This section of the Act is especially important for
government departments; it is specifically aimed at them, and its proper
use is essential to protecting the policy-making process and ensuring that
this process remains able to deliver effective government. At the same time,
it is necessary to be responsive to the public interest in information about
the policy-making process being made available. The exemption itself is
rather complex, and is likely to require a series of careful judgements
as to how it should be used.
1.2 The exemption under section 35 is closely related
to the exemption under section 36. The section 36 exemption is discussed
separately. However several points about section 36 are relevant to the
general discussion of section 35.
Section 35 is designed to exempt information likely to be found in
four particular contexts. It works in the first place on the basis of
a test as to the content of the information - what the information is
about. Section 36 is potentially broader in that it is not restricted
to information of any particular description; instead, it focuses on
the likely effects of disclosure of any information on particular ways
of working necessary to the conduct of public affairs.
Section 36 applies only to information that is not exempt information
by virtue of section 35.
Accordingly if it is thought that information held by a government
department might be exempt under section 36, a judgement should first
be made as to whether or not the information is exempt under section
35. If it appears that it is, section 35, rather than section 36, should
be used.
Unlike some exemptions which can be used cumulatively, section 35
and section 36 cannot both be cited to explain a refusal to disclose
information. They can, however, be cited in the alternative. That is,
it is possible to claim that information falls within the scope of section
35, but that if the Information Commissioner concludes that this is
wrong, nevertheless release of the information would have one of the
effects set out in section 36 and it is therefore exempt under that
section.
Both sections 35 and 36 are subject to the public interest test. If
either exemption applies, the decision on whether to disclose the information
will then have to be taken under section 2 (the public interest test).
The public interest arguments under section 2 in relation to either
exemption are likely to be similar because they are both closely related
to ensuring good government.
1.3 Section 36 is designed explicitly to protect information
whose disclosure
would, or would be likely to, prejudice-
the maintenance of the convention of the collective responsibility
of Ministers of the Crown, or
the work of the Executive Committee of the Northern Ireland
Assembly, or
the work of the executive committee of the National Assembly
for Wales,
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
would otherwise prejudice, or would be likely otherwise to prejudice,
the effective conduct of public affairs.
1.4 The protection of collective responsibility of Ministers
of the Crown, and the free and frank provision of advice and exchange of
views are not explicitly mentioned in section 35. Section 35 does however
deal with the formulation of policy, ministerial communications and the
need to protect Cabinet documents, all of which are likely to involve the
provision of advice, exchange of views and collective decision making. If
section 35 appears to apply, it should be asserted. Using section 36 instead
effectively means asserting that section 35 does not apply.
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annex C