Please can you release any risk assessment/risk register/reports/documents evaluating the impact of Brexit on the National Archives?
I can confirm that The National Archives holds the following information, relevant to your request:
• One EU Exit risk register
• One risk on the corporate risk register
• One risk on the Finance and Commercial (directorate level) risk register
• One paper produced for an Executive team and Board meeting relating to The National Archives and EU interdependencies and relationships
Section 36 exemption
In consultation with the Department for Exiting the European Union, the public interest test has been concluded and the balance of the public interest has been found to fall in favour of withholding this information.
We are therefore unable to provide you with the information you have requested because it is covered by the exemption at section 36(2)(b) and (c) of the FOI Act.
Section 36(2) of FOIA exempts information if, in the reasonable opinion of a qualified person (The Chief Executive and Keeper at The National Archives), disclosure of the information under the Act-
(b) would, or would be likely to, inhibit—
(i) the free and frank provision of advice, or
(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.
Consideration of Section 36 exemption
Following the required consultation with our qualified person, about which we explain below, we have concluded that the section 36 (2)(c) exemption is engaged. In our considered opinion the release of the requested information would be likely to prejudice:
• The National Archives’ ability to communicate current risks with the Department for Exiting the European Union (DExEU) in order to plan necessary mitigations.
• DExEU’s ability to freely discuss and share live issues with The National Archives that directly inform our assessment of risks and mitigation plans.
• The ability of Directors and senior staff members at The National Archives to freely share and assess current risks in order to mitigate these risks as best possible.
Within the Information Commissioner’s Office guidance on the public interest test, which all qualified exemptions such as this are subject to, it states that to apply these exemptions you must first prove that the exemption is engaged. For those exemptions which are prejudice based (i.e. section 36) you must carry out a prejudice test. The prejudice test is to determine if the prejudice exists in relation to exemption engaged and assesses the likelihood that harm will occur on release of the material requested. Through conducting this test an authority should be able to indicate whether it is the lower threshold of ‘would be likely to cause prejudice’ or higher threshold of ‘would cause prejudice’.
The test is outlined in detail by the Information Commissioner’s Office within their prejudice test guidance. For section 36 (2)(c) this includes consideration of the likelihood of harm to an authority’s ability to offer an effective public service or to meet its wider objectives, through its working practices, processes and also relationships with stakeholders (other bodies). In this instance, we are referring to our ability as an organisation to effectively discuss both internally and externally, and receive advice from departments, live issues in relation to risk mitigation.
In this instance we have determined that the prejudice does exist; there is a causal link between the release of the requested information and the outlined practices and processes that would be prejudiced above. Following the prejudice test we have to go on to consider where the balance of the public interest lies in terms of disclosure and thus our reasoning for withholding this information is explained below.
Applying the Section 36 Exemption
Under the terms of the FOIA, the section 36 exemption can only be considered if, in the reasonable opinion of the public authority’s qualified person – in this instance The National Archives’ Chief Executive and Keeper of Public Records – agrees that the exemption is engaged. I can confirm that the qualified person’s reasonable opinion was sought and he agreed that the exemption can and should be considered.
Our next procedural step was to consider the public interest in the release of this information. The public interest here means the public good, not what is of interest to the public, and not the private interests of the requestor. As some of the information in scope of this request relates to information provided by DExEU, the public interest process has been in part completed in consultation with DExEU. I shall set out the arguments we considered for and against disclosure of this information:
Factors in favour of disclosure
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 in relation to live issues. This makes for greater accountability, increases public confidence in and helps to encourage greater public engagement with political life. Release of this information would allow the public to judge and evaluate how The National Archives are evaluating our exit from the EU.
Factors in favour of non-disclosure
Release of this information would be likely to cause prejudice to our effective ability to engage and conduct free and frank discussions both internally and externally in regards to risk assessments and mitigations. Furthermore, the release of this information would be likely to prejudice the free and frank provision of advice from government departments – specifically DExEU – to The National Archives in relation to live issues, which directly inform these assessments. DExEU would have no expectation details of these live issues and risks and assessments on this topic would be released. There is an assumption that contributions and updates by DExEU officials take place in a safe space, so that these issues can be discussed freely and frankly. Papers outlining current issues and risks for Executive team and Board meetings rely upon a safe space within the organisation for these issues to be shared and discussed.
Therefore, after applying the public interest test and considering all arguments for and against, it has been concluded that the balance of public interest lies with applying the section 36 (2)(b) and (c) exemption.
Further guidance can be found at the ICO.
Section 27(1) of the FOIA exempts information that, if it was released, could put at risk relations between the UK and any other state, international organisation or international court; 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.
This is a qualified exemption; as such a public interest test was required to consider whether the interests of the public were best served by disclosure or non disclosure of the information.
Arguments for release included the principle of transparency and greater accountability, increases public understanding of international negotiations. Arguments for withholding included how the release of this information would be likely to affect our relationships with other member states in what is an ongoing negotiation, which would also be likely to affect the outcome of the negotiations through other states’ or institutions’ understanding of how we are conducting our work. If this ability to communicate in confidence, and to comment frankly on issues around this negotiation, is not protected, the UK’s ability to conduct its international relations and to maintain good relations with and influence foreign governments and organisations, thereby protecting and promoting UK interests, will be jeopardised.
The UK’s exit from the EU is an incredibly complex and evolving situation. It is therefore of vital importance that any information released or published by Government is done so only after careful assessment, and at the appropriate time, when it is unlikely to harm those negotiations or the UK’s interests abroad. In this instance we believe the release of the information in this file would harm UK relations with those countries and UK interests there. This would be detrimental to the operation of government and not be in the UK’s interest.
Therefore, after applying the public interest test and considering all arguments for and against, it has been concluded that the balance of public interest lies with applying the section 27 (1) exemption to some of the information.