Crime and Policing Group

Police Productivity Unit, 6th Floor, FryBuilding, 2 Marsham Street, SW1P 4DF

Fax 0870 336 9012

Date 25 June 2009




BUILDING A SAFE, JUST AND TOLERANT SOCIETY

Dear Mr William Old

Thank you for your e-mail dated 14 April 2009 in which you ask for all documents relating to (and, if appropriate, a copy of) the Home Office guidance on temporary promotion and temporary salary (“acting”).

Your request has been handled in accordance with the Freedom of Information Act 2000.

We believe that part of the information that you have asked for is already reasonably accessible to you. It can be accessed under Home Office Circular 018/2008 – Guidance for Police Authorities and Forces – details of the Police Negotiating Board Agreement that can be found on our website:

Section 21 of the Freedom of Information Act exempts the Home Office from complying with the duty to supply you with this information on the grounds that it is already in the public domain. Should you have difficulties in accessing this information by the means listed above please do not hesitate to contact us again.

Within the scope of your request there is information on draft determinations and emails relating to temporary promotion/temporary salary. However we are not obliged to disclose these to you. After careful consideration we have decided that this information is exempt from disclosure by virtue of the following exemptions of the Freedom of Information Act:

  • Section 36 - this provides for public authorities to withhold information if disclosure of that material would, or would be likely to inhibit the free and frank exchange of views for the purpose of deliberation. This is of utmost importance in the decision making processes of the Police Negotiating Board (PNB) machinery in which public officials are members. Your request comprises correspondence and consultation papers between the Home Office and the PNB relating to temporary promotion/temporary salary, the implementation of the PNB agreement and draft determinations.

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  • Section 42 – this provides for legal professional privilege i.e. legal advice in relation to temporary promotion/temporary salary.

As such, this letter also serves as a refusal notice under section 17 of the Act.

The provisions of section 36 and 42 are referred to as being a “qualified” exemption, in that the information to which they refer is not automatically exempt from disclosure. As such, the holding public authority is required to conduct a Public Interest Test in order to balance the considerations favouring the disclosure of the requested information against those favouring retention. I have attached a copy of our Public Interest considerations to this letter.

If you are dissatisfied with this response you may request an independent internal review of our handling of your request by submitting your complaint within two months to the below address quoting reference CR11651:

Information Rights Team
Information and Record Management Service
Home Office
4th Floor, Seacole Building
2 Marsham Street
London
SW1P 4DF

Email:

During the independent review the department’s handling of your information request will be reassessed by staff who were not involved in providing you with this response. Should you remain dissatisfied after this internal review, you will have a right of complaint to the Information Commissioner as established by section 50 of the Freedom of Information Act.

I hope that you find this information of interest, and would like to assure you that you have been supplied with all disclosable information that the Home Office holds. Where information has been withheld, I would like to assure you that we have considered the application of exemptions with great care in this case.

Yours sincerely,

Lorna Morrison

The Public Interest Test

The exemptions under section 36 and 42 are qualitative and only apply if the public interest in withholding the information is greater than that in releasing it. The arguments for and against the public interest are set out below.

The Public Interest Test (PIT) is integral in the application of any of the 'qualified' exemption provisions in the Act. Where a public authority is considering the use of one or more qualified exemption in response to a request for information, they must conduct a PIT to balance considerations favouring disclosure of the requested information against those favouring non-disclosure. Under section 2(2)(b) of the Act, such exemptions will only be effective in excluding the duty to communicate information where:

"...in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information."

The public interest is not about what is of interest to the public but what will be of greater good, if released, to the community as a whole - what is in the best interest of the general public if you will. It would not, for example, be in the public interest to disclose information that may compromise the ability of a policing authority to fulfil their core function of law enforcement or that could endanger the health and safety of the general public.

You may be aware that FoIA is applicant blind. This means that we cannot, and do not, request the motives of any applicant for information. We have no doubt that the vast majority of applications under the Act are both laudable and proper. However, in providing material to one applicant, we are expressing a willingness to provide to anyone in the world. This means that a disclosure to a genuinely interested and concerned applicant automatically opens it up for disclosure to anyone, including those who might represent a threat to the UK.

Considerations favouring disclosure and non-disclosure of information under Section 36

Public Interest Considerations favouring disclosure

This request concerns the pay and conditions of police officers and there is therefore an argument to be made that there is strong public interest in the information to provide greater transparency on the development and implementation of policy for police pay and conditions.

Disclosure of this information would also be likely to aid an informed public debate on this subject as it would raise public awareness of the processes of the Police Negotiating Board (PNB) machinery involved in considering police pay and conditions.

Public Interest Considerations favouring non-disclosure

The likelihood of inhibiting the free and frank exchange of views for the purpose of deliberation.

There are factors that favour non-disclosure of such information. In this case, those factors are the need to preserve the integrity of the Police Negotiating Board (PNB) machinery, of which public officials are party to, that might be undermined if the exchange of views were routinely made public as there is a risk that officials could come under political or public pressure not to challenge ideas in the formulation of policy, leading to poorer decision making.

The exemptions at Section 36 recognise that government Ministers and public officials must be able to have an exchange of views and consider all options available without undue concern that information about this process could be routinely released.

Considerations favouring disclosure and non-disclosure of information under Section 42

PublicInterest Considerations in Favour of Disclosure

There is a public interest in knowing that decisions made were done so on the basis of sound legal advice. The release of information which demonstrates this would increase public confidence on the basis for which such decisions are taken and as such would be clearly beneficial to the wider public interest.

Public Interest Considerations in Favour of Non-Disclosure

Considerations favouring non-disclosure of this information include the need to protect the space of those who offer and receive legal advice. The giving and receiving of confidential legal advice is central to the process of good governance, and erosion of this principle is likely to severely prejudice the giving of legal advice in the future.

The Information Commissioner has repeatedly stated that the public interest in maintaining the convention of Legal Professional Privilege will only be overridden in the most exceptional of circumstances. Indeed, in the case of ‘Bellamy v The Information Commissioner and the DTI’ the Information Tribunal has noted:

‘there is a strong element of public interest inbuilt into the privilege itself. At least equally strong counter-vailing considerations would need to be adduced to override that inbuilt public interest…it is important that public authorities be allowed to conduct a free exchange of views as to their legal rights and obligations with those advising them without fear of intrusion, save in the most clear cut case…’

It is this inbuilt public interest which I believe supports our assertion that this information should remain withheld.

There is an additional risk that officials and lawyers would be discouraged from making proper records of such advice in future, should information be prematurely released in to the public domain. Such a development would certainly be detrimental to the process of good governance. It is vital that any legal advice given in relation to any issue is fully and properly recorded, should it need to be referred to again in future.

At worst the release of information that can be considered to be legally professionally privileged could encourage officials to avoid taking legal advice at all. Such a development could lead to legally unsound decisions which attract successful legal challenges. It is in the wider public interest and the interests of good governance that Her Majesty’s Government is able to obtain sound legal advice, without fear that it might be inappropriately released.

Our Decision

Having considered the nature of the material and the considerations detailed above that favour both the retention and disclosure of the requested information, it can be noted that there are public interest arguments that favour disclosure of the requested information. However, at this time, we consider that there is a stronger argument favouring the retention of the requested information as it would undermine the provision of the free and frank exchange of views of officials. In relation to the information which comes within the scope of Section 42, public authorities are entitled to give and receive legal advice without fear that, that advice will be released in to the public domain. The release of such advice would serve to prejudice this process in future by discouraging officials from requesting and sharing such advice where necessary. Such an outcome would clearly be detrimental to the interests of Her Majesty’s Government as a whole and as such would not be in the public interest. We therefore believe it is not in the public interest for this information to be disclosed.


BUILDING A SAFE, JUST AND TOLERANT SOCIETY