Title: FCO non-standard files and documents
FOI request reference: F0047904
Response sent: March 2017
My question pertains to the Foreign & Commonwealth Office’s holding of non-standard files and documents: the collection formerly known as the ‘Special Collections.’ https://www.gov.uk/guidance/fco-non-standard-files
The FCO has advised: “In 1996, the Lord Chancellor gave his approval in principle for the retention of certain HKG files of special sensitivity for 50 years after their transfer to government ownership.”
I would like to request a copy of the document or documents in which the Lord Chancellor gave this approval in principle. I would also like to request any notes, reports, briefs, internal correspondence and external correspondence – dated 1996 – pertaining to this approval.
I can confirm that The National Archives holds information relevant to your request and we are pleased to be able to provide you with a scan of the documents within scope of your request in the attached PDF.
Some of the information in these documents is exempt from disclosure under sections 27 (1) (a), (c) and (d) of the FOI Act. This exempts information that, if it was released, could put at risk relations between the UK and any other state; the interests of the UK abroad; or the UK’s ability to promote or protect its interests. The definition of ‘state’ includes the government of any state and any part of such a government.
Some of the information is also covered by the exemption at section 36 (2) (b) (ii) and (c) of the FOI Act. This exempts information that, if it was released, would or would be likely to inhibit the free and frank exchange of views for the purposes of deliberation; or would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.
This means that we cannot release those parts and they have been redacted from the attached PDF.
Sections 27 and 36 of the Act are qualified exemptions and as such we were required to conduct public interest tests. For further information about why these exemptions have been applied and the public interest test arguments and outcomes please see the explanatory annex at the end of this letter.
Section 27 and section 36 are qualified exemption, which means after it has been decided that the exemption is engaged, the public interest in releasing the information must be considered before applying these exemptions.
If the public interest in disclosing the information outweighs the public interest in withholding it then the exemption does not apply and the information must be released. In the FOI Act there is a presumption that information should be released unless there are compelling reasons to withhold it.
Section 27: International relations
(1) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice—
(a) relations between the United Kingdom and any other State,
(c) the interests of the United Kingdom abroad, or
(d) the promotion or protection by the United Kingdom of its interests abroad.
The public interest test has been concluded and the balance of the public interest has been found to fall in favour of withholding information covered by the section 27 exemption.
We considered that the factors in favour of release, the presumption of openness under the FOI Act and the value in having a complete historical record, were outweighed by the fact that releasing this information into the public domain at this time could be detrimental to, and potentially damage, the UK’s relations with China and the interests of the UK in China, including in Hong Kong. Thus it was determined that to release this information would be likely to impact the UK’s ability to promote and protect its interests abroad.
The need to protect the UK’s national interests must be balanced with the need to meet the key objectives set out under the FOI Act, such as openness and transparency.
In conclusion, after considering the public interest it has been determined that any increase in public understanding which release of the information in question might yield would be outweighed by the real and significant risk of prejudice to the UK’s relations with China and the interests of the UK in Hong Kong, and the UK’s ability to promote and protect its interests abroad. Consequently The National Archives considers that the balance of the Public Interest lies in non-disclosure and in upholding the exemption of the material in question under section 27 (1) of the Act at this time.
Section 36: Prejudice to effective conduct of public affairs.
(2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act—
(b) would, or would be likely to, inhibit—
(ii) the free and frank exchange of views for the purposes of deliberation, or
(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.
Prior to conducting the public interest test the Qualified Person, who for The National Archives is The Chief Executive and Keeper at The National Archives, was consulted and confirmed that, in their reasonable opinion, the exemption can be said to reasonably apply.
The public interest has now been concluded and the balance of the public interest has been found to fall in favour of withholding information covered by the section 36 exemption.
Considerations in favour of the release of the information included the principle that there is a public interest in showing a true and open account of government decision-making. This makes for greater accountability, increases public confidence in, and helps to encourage greater public engagement with, political life. There is a general public interest in being able to evaluate government policy.
However, release of this information would restrict the ability of The National Archives to engage in free and frank discussions with other government departments to determine the best possible policy for securing the future of the public record. In order to ensure correct decisions are being made with regards to retention, destruction and transfer of public records, there is a need to protect and maintain a safe space within which The National Archives are able to seek advice, and to discuss that advice openly and candidly with other government departments. As such, release of this information would be likely to prejudice the effective conduct of public affairs by preventing the effective function of the transfer and retention process and our obligations under the Public Records Act 1958. This would outweigh any benefits of release. It was therefore decided that the balance of the public interest lies clearly in favour of withholding the material on this occasion.
Guidance on the public interest test can be found on the Information Commissioner’s website here: https://ico.org.uk/media/for-organisations/documents/1183/the_public_interest_test.pdf
Further guidance on section 27 can be found at: https://ico.org.uk/media/1184/awareness_guidance_14_-_international_relations.pdf
Further guidance on section 36 can be found at: https://ico.org.uk/media/for-organisations/documents/1175/section_36_prejudice_to_effective_conduct_of_public_affairs.pdf