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richardcameronwilson AT yahoo dot co dot UK

Foreign Office refuses to say whether Tony Baldry has lobbied them over Nigeria in his capacity as an MP (ie. not just in his capacity as a barrister)

with 2 comments

See Will Jordan on the background to this…

Our reference: FOI 0353-10

Dear Mr Wilson,

Thank you for your request under the Freedom of Information Act (FOIA) of 20 April seeking information on;

Whether Tony Baldry has, in his formal capacity as an MP, also made representations to the Foreign Office during this time, in relation to any subject connected to Nigeria, and if so what the nature of those representations was?

The Foreign & Commonwealth Office (FCO) does hold the information that you requested. However, after careful consideration we have decided that the information is exempt from disclosure under section 27(1)(a), section 31(1)(c), section 40(2) and section 41(1) of the FOIA. These provisions provide that information can be withheld if;

*Its release would be prejudicial to relations between the United Kingdom and any other state [section 27(1)(a)];

*Its release would, or would be likely to, prejudice the administration of justice [section 31(1)(a)];

*It constitutes personal data [section 40(2)]; and

*Its release would constitute an actionable breach of confidence [section
41(1)].

The provision of section 40(2) and section 41(1) are class-based and confer an absolute exemption. An explanation as to why these provisions have been applied is included in the Annex to this letter.

Sections 27(1) and 31(1) are qualified exemption provisions and require us to
consider whether in all the circumstances of the case the public interest in
maintaining the exemption outweighs the public interest in disclosing the information.

Our public interest considerations and the reasons for our conclusion are set out in the attached in this letter.

Section 27

Section 27(1)(a) of the FOIA recognises the need to protect information that would be likely to prejudice relations between the United Kingdom and other states if it was disclosed.

The application of Section 27(1)(a) requires us to consider the public interest test arguments in favour of releasing and withholding the information. We acknowledge that releasing information on this issue would increase public knowledge about our relations with Nigeria. Section 27(1)(a) recognises that the effective conduct of international relations depends upon maintaining trust and confidence between governments. If the United Kingdom does not maintain this trust and confidence, its ability to protect and promote UK interests through international relations will be hampered, which will not be in the public interest. The disclosure of information detailing our relationship with the Nigerian government could potentially damage the bilateral relationship between the UK and Nigeria. This would reduce the UK government’s ability to protect and promote UK interests through its relations with Nigeria which would not be in the public interest. For these reasons we consider that the public interest in maintaining this exemption outweighs the public interest in disclosing it.

Section 31

Section 31(1)( c) states, “Information which is not exempt information by virtue of Section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice – (c) the administration of justice. [The Crown Prosecution Service is presently investigating whether there is a legal ground for prosecution]. Premature disclosure could wrongly influence [that investigation], prejudicing the administration of justice. Such public interest consideration, depending on the circumstances, may favour or prevent disclosure. We believe that the public interest in maintaining this
exemption outweighs the public interest in disclosure.

Section 40

Section 40 is an absolute exemption which allows information to be withheld if it constitutes personal data. It is the general policy of the Foreign & Commonwealth Office not to disclose, to a third party, personal information about another person including personal details. This is because the Foreign & Commonwealth Office has obligations under the Data Protection Act and in law generally to protect this information. It may assist if I explain that any release for the purpose of the FOIA, is deemed as a release of information into the public domain as a whole.

Your request for information has been considered in line with the Foreign &
Commonwealth Office’s obligations under the FOIA. However, it has been
concluded that the information you have requested is exempt under Section 40(2) and (3) of that Act. Section 40(3) of the FOIA applies where disclosure would breach the Data Protection principles.

Section 41

Section 41 is an absolute exemption which allows for information to be withheld if its release would constitute an actionable breach of confidence. This exemption qualifies the right of access under FOIA by reference to the common law action for ‘breach of confidence’. According to that action, if a person who holds information is under a duty to keep that information confidential (a ‘duty of confidence’), there will be a ‘breach of confidence’ if that person makes an unauthorised disclosure of the information.

The concept of ‘breach of confidence’ has its roots in the notion that a person who agrees to keep information confidential should be obliged to respect that confidence. However, the law has now extended beyond this: the courts recognise that a duty of confidence may also arise due to the confidential nature of the information itself or the circumstances in which it was obtained. The concept of ‘breach of confidence’ recognises that unauthorised disclosure of confidential information may cause substantial harm.

Whether or not a public authority, such as the Foreign & Commonwealth Office, holds information subject to a duty of confidence depends largely on the
circumstances in which it was obtained and whether the public authority expressly agreed to keep it confidential. The courts will recognise that a person holds
information subject to a duty of confidence in two types of situations: (1) where that person expressly agrees or undertakes to keep information confidential or (2) where the nature of the information or the circumstances in which the information is obtained imply that the person should keep the information confidential.

We judge that we are under an implied duty of confidence, given the nature of the information contained in Mr Baldry’s letter, and the fact that he wrote privately to specific members of the United Kingdom government.

The use of these exemptions requires us to conduct a Public Interest Test to the considerations favouring withholding the information against those favouring its
release.

Public Interest Test

Some of the exemptions in the FOIA, referred to as ‘qualified exemptions’, are subject to a public interest test (PIT). This test is used to balance the public interest in disclosure against the public interest in favour of withholding the information, or the considerations for and against the requirement to say whether the information requested is held or not. We must carry out a PIT where we are considering using any of the qualified exemptions in response to a request for information.

The ‘public interest’ is not the same as what interests the public. In carrying out a PIT we consider the greater good or benefit to the community as a whole if the
information is released or not. The ‘right to know’ must be balanced against the need to enable effective government and to serve the best interests of the public.

The FOIA is ‘applicant blind’. This means that we cannot, and do not, ask about the motives of anyone who asks for information. In providing a response to one person, we are expressing a willingness to provide the same response to anyone, including those who might represent a threat to the United Kingdom.

Public Interest Considerations under section 27

We acknowledge that releasing information on this issue would increase public knowledge and awareness about the United Kingdom’s relations with Nigeria.
However, section 27(1)(a) recognises that the effective conduct of international relations depends upon maintaining trust and confidence between governments. If the United Kingdom does not maintain this trust and confidence, its ability to protect and promote United Kingdom interests through international relations will be hampered, which will not be in the public interest.

The disclosure of information detailing our relationship with the Nigerian government could potentially damage the bilateral relationship. This would reduce the United Kingdom government’s ability to protect and promote United Kingdom interests through its relations with Nigeria, which would not be in the public interest. Furthermore, if cooperation between the United Kingdom and Nigerian governments were damaged, then this may, in turn, prejudice relations with other states as they may perceive that the UK does not handle their information with due care. For these reasons we consider that the public interest in maintaining this exemption outweighs the public interest in disclosure.

Public Interest Considerations under section 31

We acknowledge that releasing information on this issue would increase public knowledge, albeit in a limited way, about the allegations currently being considered in the ongoing trial at Southwark Crown Court. However, we are of the view that release of the information into the public domain whilst the case is still ongoing and the ensuing discussion and speculation which might follow concerning the contents of Mr Baldry’s letter would be likely to influence the conduct or otherwise affect the fairness of the trial. For these reasons we consider that the public interest in maintaining this exemption outweighs the public interest in disclosure…

Add PollFOI 0353-10 – Richard Wilson – Formal submission

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Written by Richard Wilson

May 11, 2010 at 11:07 am

Posted in Don't Get Fooled Again

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2 Responses

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  1. The statement that Tony Baldry, in his formal capacity as an MP, made no representations to the Foreign Office in relation to any subject connected to Nigeria is not prejudicial.

    Therefore we must conclude that such representations were made.

    Martin Budden

    May 11, 2010 at 7:07 pm


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