Chapters: 01 | 02 | 03 |
04 | annex A
annex B 
|
annex C |
annex D |
annex E
2.1 The section 35 exemption relates only to information held by a government department (including a Northern Ireland Government Department) or by the National Assembly for Wales. 'Government department' is explained in section 84 of the Act and includes:
2.2 It does not relate to information held by any other public authority, and cannot be used by any other public authority to withhold information. Accordingly information contained in copies of documents held by other public authorities, which would fall within section 35 if held by a government department or the National Assembly for Wales, cannot be exempt under section 35. It may however be exempt under other sections, particularly section 36. Thus for instance information contained in a draft policy paper on local government finance held by a government department might be exempt under section 35. A copy of the same document held by a local authority cannot be exempt under section 35, though it may be exempt under section 36.
2.3 Information under section 35 is exempt if it relates to one of the four areas in subsection (1). Careful attention needs to be paid to the term relates to. Some of the other exemptions are much more precise about the sort of information to which they apply. Information 'relating to' one of the categories mentioned in will include the substantive information falling within the description - that is, for example, information which describes a new government policy, or is contained in a ministerial communication. But it will also include other information which is about that information - for example, information contained in papers discussing whether or not to seek the Law Officers' advice may be 'related to' the provision of that advice (see paragraphs 2.20-22 below). Papers 'related to' Ministerial communications would include the record of the communication itself, for example a note of a meeting or a reference to a conversation in correspondence to a third party.
2.4 It is possible for information to fall within more than one paragraph in section 35(1). For example, a document could relate to the formulation of government policy, and it could relate to Ministerial communications at the same time.
2.5 The discussion of what types of information will need to be considered under this exemption is divided into five sections (see paragraphs 2.7-2.25) and derived from the four paragraphs in 35(1) - information relating to:
2.6 Subsection (4) refers to factual information which provides an informed background to the formulation or development of government policy. This is discussed below (paragraph 3.7).
2.7 This sort of information will be found in a wide range of documents from officials' emails to Cabinet Committee papers. These will clearly include such documents as submissions to ministers, correspondence with other departments and public bodies in connection with policy development, minutes and proceedings of both ministerial and officials' committees and internal departmental correspondence. Drafts of such documents are also likely to be covered, as well as ancillary documents such as e-mails discussing points arising on drafts. Of course, it is not the nature of the document itself which is determinative but the substance of the information contained within it.
2.8 "Government policy" is not defined (except that it expressly includes the policy of the Executive Committee of the Northern Ireland Assembly and the policy of the National Assembly for Wales.) The exemption need not be confined to strategic policy, such as long-term reform. It could equally include decisions on responding to more immediate challenges - so long as it involves policy development or formulation. It is not necessary that the information relates to ultimately agreed policy. The exemption would apply to early ideas that are discarded as policy is developed. The information may not be purely internal; a suggestion or advice received from a third party in the course of policy development will be covered by the exemption.
2.9 Sometimes policy development continues as a decided policy is implemented. Continued consideration of ways in which to refine policy will be covered. But the 'formulation or development' of policy is distinguishable from the implementation or operation of policy (information of this nature may need to be considered in the context of section 36). Particular care will be needed in deciding whether information is related to continuing policy development or is in fact related solely to the operation of the policy.
2.10 The definition of ministerial communications will be discussed under two headings: the general definition, and Cabinet proceedings (which are a particular example of the general definition).
2.11 Subsection (5) states that Ministerial communications means any communication between:
The following points are relevant:
2.12 Subsection (5) continues the definition of Ministerial communication:
"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"
2.13 The emphasis on the Cabinet, committees of the Cabinet, and the two executive committees puts the scope of the exemption beyond any possible doubt in this respect. Cabinet government, and the confidential nature of Cabinet proceedings, are important and long-standing aspects of the United Kingdom's constitution. These are key considerations when exercising the public interest balance - see below paragraphs 3.1 - 3.14. In section 35(5), Parliament has demonstrated the importance it places on the need to safeguard these decision-making forums. There is likely to be a strong public interest in maintaining the exemption in this respect when it comes to any balance of the public interest carried out under section 2(2).
2.14 The reference to committees of Cabinet includes both
standing committees and ad hoc committees. Proceedings of other meetings
of Ministers, such as, for instance, minutes of bilateral meetings also
fall within section 35(1)(b), although subsection (5) does not specify them;
their proceedings may also relate to section 35 (1)(a).
Proceedings of Cabinet and other meetings covered by section 35(1)(b)
are not confined to the formal minutes of the meetings, but include information
relating to timing, agendas, memoranda and other tabled papers. Where
a committee does much of its business by correspondence the correspondence
of the committee is covered by section 35(1)(b) and may also be covered
by section 35(1)(a).
2.15 There is a particular category of information which, although it relates to the formulation or development of government policy or to ministerial communications, cannot fall within the terms of these exemptions. That is because of the provision made by section 35(2) about statistical information.
2.16 Statistical information is a subset of factual information (see below 3.7 - 3.8) but is treated separately because different rules apply to it under the Act. Statistical information used to provide an informed background to decision taking is treated differently from other types of information covered by section 35. It ceases to be exempt under subsection (1)(a) and subsection (1)(b) once a decision as to government policy has been taken. However such information may, of course, continue to be exempt under another provision of the Act. If there is statistical background information relevant to seeking the advice of the Law Officers (1)(c) or to the operation of Ministers' private offices (1)(d), this continues to be exempt under the section and the public interest test will have to be considered.
2.17 The Act does not say exactly when a "decision as to government policy" is taken - that is to say the point at which the statistical information emerges from the exemption. Where a public announcement of policy has been made, the conditions are likely to be fulfilled. However, there are obviously possibilities for less clear-cut cases, such as, for example:
If it is an interim decision necessary to proceed to the next stage of the formulation of policy, then the section 35 exemption is likely to apply. A decision not to proceed with a policy which has been under consideration is equally a decision as to government policy.
Applying this expression will require a measure of judgement, bearing particularly in mind the intention of this provision. The general idea is that when the policy-making process has reached a point at which the statistical information essentially becomes a part of the historical explanation rather than a continuing and integral part of the policy-making itself, the considerations which protect the policy-making process are separable from, and need no longer apply to, that statistical information.
Section 35(2) focuses on statistical information used to provide an informed background to the taking of the decision. Once it can properly be assigned that background characteristic, then it ceases to be exempt under this part of section 35. But if it has a continuing integral, rather than background, role, the exemption may continue to apply.
In these circumstances, it will be important for departments to be as clear as possible about their decision-making processes. If the nature of those decisions is properly identified and recorded at the time, decisions about the application of the provisions on background statistical information are likely to be much easier to take.
2.18 The Act gives no definition of statistical information. For guidance a definition is provided in Annex 1 to this chapter. It should be noted that any statistical information used to provide background to decision taking, regardless of the content or quality of that information, or the methods used to collect it, is potentially covered by subsection (2).
2.19 Section 36(4) also refers to statistical information. That subsection is discussed in the chapter on section 36.
2.20 Section 35(1)(c) explicitly covers information relating to the provision of advice by any of the Law Officers or any request for such advice. Section 42 of the Act exempts information in respect of which a claim to legal professional privilege could be maintained in legal proceedings. The section 42 exemption is discussed in the relevant chapter. It should be noted here that the section 42 exemption is not an absolute exemption, but like section 35, is subject to the public interest test. Section 35(1)(c) however has a wider range than section 42.
Subsection (5) defines the term the Law Officers. The term 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.
2.21 Section 35(1)(c) refers to requests for, and the provision of, any advice, and not just that which comes under the narrower heading of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings (exempt under section 42). It might therefore refer to advice on the provision of any aspect of government policy and operations, and not just legal advice. The policy and operational functions of the Law Officers, indicating the range of areas in which there might be information relating to their advice, include:
2.22 Note that section 35(1)(c) relates to the provision of advice. So it will be necessary to make a judgement as to whether or not the information requested relates to advice, rather than to a decision or communication that does not amount to advice. 'Advice' could relate to any of the Law Officers' functions, but is most likely to be given in their roles as legal advisers. In general:
2.23 Under section 35(1)(d) information relating to the operation of a Ministerial private office falls within the terms of the section 35 exemption. Subsection (5) defines a Ministerial private office as:
"any part of a government department which provides personal administrative support to a Minister of the Crown, a Northern Ireland minister or junior minister, and any part of the administration of the National Assembly for Wales providing personal administrative support to the Assembly First Secretary or an Assembly Secretary".
2.24 When considering whether or not information requested falls under section 35(1)(d) careful consideration needs to be given to whether or not the information relates to the operation of the private office itself. Information in a document that has been sent to or originated in a private office does not fall under this exemption merely because it has passed through the office. Information relating to the operation of the office might include staffing, organisation, and procedures for handling the Minister's papers. Management of ministerial diaries could be covered by the operation of the private office, but that is not to say that all information about ministerial engagements will fall within these terms.
2.25 Information relating to the Minister's private affairs is not exempt under 35(1)(d), but may be exempt under section 40. [footnote 2]
2.26 Under subsection (3) departments do not have to confirm or deny whether they hold information exempt under section 35(1). But reliance on this exemption from the duty in section 1(1) of the Act is subject to the public interest balance. So, for example, if a department received a request for information about whether or not there had been deliberations about whether to seek advice from the Law Officers in a particular case, and it was considered that the public interest was in favour of not revealing whether there had been such deliberations, the department would be able to say that it could neither confirm nor deny whether it had such information. If the duty to confirm or deny is excluded, there is no need to go on to claim exemption from the duty to communicate the information to the applicant under section 1(1)(b) of the Act.