cc: "Mcgarvie Michael Mr \(ACAD\)" date: Thu, 10 Jul 2008 16:02:37 +0100 from: "Palmer Dave Mr \(LIB\)" subject: FW: Freedom of Information request (FOI_08-23) - Appeal resolution to: "Briffa Keith Prof \(ENV\)" , "Osborn Timothy Dr \(ENV\)" , "Jones Philip Prof \(ENV\)" Gents, A copy of what was sent to Jonathan. Please note that the opinion from the Met Office quoted below is subject to lawyer-client privilege and should not be shared outside the group that has now seen it. Cheers, Dave ______________________________________________ From: Palmer Dave Mr (LIB) Sent: Thursday, July 10, 2008 3:56 PM To: Colam Jonathan Mr (ISD) Cc: Mouland Lucy Dr (VCO) Subject: Freedom of Information request (FOI_08-23) - Appeal resolution draft Importance: High Jonathan, A draft response for your review and comment. I have been in contact with the ICO who are of the opinion that, if we feel that there are exemptions that we 'missed' on the first review of the request, they should be raised at this stage. I have added a s.40 exemption on the assumption that, even if names of correspondents are redacted, there is enough information in what's left to reveal the identity of individuals. If what is left is 'personal data', then s.40 clearly applies; it is whether what is left qualifies as personal data.... Additionally, I have added a s.36 exemption on the basis that the disclosure of this information would clearly "in the reasonable opinion of a qualified person", "inhibit the free and frank provision of advice, or, the free and frank exchange of views for the purpose of deliberation" and "would otherwise prejudice... the effective conduct of public affairs". This section, as I read it, does not limit the provision of advice or exchange of views to inside an organisation. I have been in touch with Lucy to determine, in a rough way, the opinion of the 'qualified person' (i.e. the VC) in this case & she concurs. There is an additional argument that we might wish to make. I have been in touch with the Met Office that have received a similar request. They have been in touch with the ICO and are making the argument that the correspondence is not actually 'held' by them at all! The argument is as follows: guidance from last year from the ICO indicates that information in which the institution has no interest but physically possesses, is not 'held' by them for the purposes of the Act. Guidance states: "In these circumstances the public authority will have an interest in this information and will make disclosure decisions. This is because although ownership may still rest with the depositor, the public authority with whom the information has been deposited effectively controls the information and holds it in its own right. It will therefore be difficult to argue that the information is merely held on behalf of another person and consequently not held for the purposes of the public authority itself." And "There will be cases where such information is simply held on behalf of a third party, for example for preservation or security purposes. Perhaps the public authority may be holding the information as part of a service (whether for gain or otherwise) to the depositor. Although this information is in the possession of a public authority, it does not fall within the scope of the Act as the public authority has no interest in it." And finally in regards personal emails in general "In most circumstances private emails sent or received by staff in the workplace would not be held by the authority as it has no interest in them. It will be a question of fact and degree whether a public authority does hold them, dependent on the level of access and control it has over the e mail system and on the computer use policies. It is likely to be the exception rather than the rule that the public authority does hold them." I have also received some correspondence from the Met Office that sets out their argument along these lines; and further an assertion that the ICO has indicated that, on the facts of their particular case (emails not created by the organisation, or used by them). To quote the internal briefing note "...the IPCC consultation exercise did not have a role in respect of the specific functions of the Met Office. It was aligned with them but not a function of the Met Office. The whole purpose of the IPCC is that it is independent and objective." The Met Office are arguing that their Director's involvement was in a pseudo-academic/personal capacity and not as a representative of the Met Office and the IPCC work was not Met Office work. What it comes down to is our corporate interest in this IPCC correspondence - if we have some, then it would be 'held' by us. I have emailed Mssrs. Briffa, Osborn & Jones to assess this .. .but your feeling? Where we to make this argument, I would put it immediately after our re-assertion of our primary grounds of exemption; if the ICO does decide that we 'hold' this correspondence, we would need to have a position on it's disclosure. Cheers, Dave <> ____________________________ David Palmer Information Policy Officer University of East Anglia Norwich, England NR4 7TJ Attachment Converted: "c:\eudora\attach\Appeal_review_draft.doc"