Swyddfa’r Prif Weinidog a Swyddfa’r Cabinet Office of the First Minister and Cabinet Office
Our ref: ATISN 11826 Date: 25 January 2018
Dear Mr Andrews
Request for Information – ATISN reference 11826
Thank you for your request which was received by the Welsh Government on 6 December 2017. You asked for the following information:
copies of emails sent from the First Minister's Senior Private Secretary to the Private Office of the Minister for Public Services on 4 December 2014 and the reply from that office on 8 December 2014, and the email from Sarah Rhodes to the offices of the FM, Minister for Public Service and Counsel-General on 2 December 2014, together with any submission contained therein.
emails exchanged between the Minister for Public Services SPS and the FM's SPS on 15 December 2014 relating to London meetings, and the email from the Minister for Public Services to Des Clifford dated 17 December 2014 on the same issues.
copies of any meeting notes and emails taken and or circulated, in whatever format, of meetings that the Minister for Public Services had with the First Minister on 25 September, 6 November, and 19 November.
The information held in relation to this request is attached at Annex 1.
In addition, I have concluded that, in this instance, certain personal data should be withheld under Section 40 of the FoI Act, such as names and contact details of civil servants who would not expect these details to be released during the normal course of business. Details about the Section 40 exemption are at Annex 2.
Some of the information requested is exempt under Section 35(1)(c) as it relates to advice provided by the Law Officer and Section 42 as it is subject to legal professional privilege. Details about the Section 35(1)(c) and Section 42 exemption are at Annex 3.
If you are dissatisfied with the Welsh Government’s handling of your request, you can ask for an internal review within 40 working days of the date of this response. Requests for an internal review should be addressed to the Welsh Government’s Freedom of Information Officer at:
Information Rights Unit, Welsh Government, Cathays Park, Cardiff, CF10 3NQ or
Email: FreedomOfInformationOfficer@wales.gsi.gov.uk
Please remember to quote the ATISN reference number above.
You also have the right to complain to the Information Commissioner. The Information Commissioner can be contacted at:
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.
However, please note that the Commissioner will not normally investigate a complaint until it has been through our own internal review process.
Yours sincerely
Annex 1
From: Andrews, Leighton (Ministerial)
I am slightly surprised at this email. I don’t recall any questions being raised when or accompanied me to meetings in London when I was previously in the Cabinet. Has there been a change of policy? I would be very concerned if I thought that was being treated differently from other special advisers.
For the record, I think that the presence of a special adviser at such meetings is different from the role of a PS in these meetings. We are holding a number of high-level discussions on the subject of public service reform and you will see from the calibre of the people that we are meeting, both in January and this week, that we have scheduled discussions with people from whom we can learn about the process of public service reform in other places. needs to be in these meetings so that she can share in that learning and ensure that it is shared with officials when I am not available to discuss these issues with them and to inform her own contributions to future internal discussions on public service reform.
You will appreciate that I have deliberately scheduled these visits in recess to avoid any disruption to normal business.
Best wishes,
Leighton
Leighton Andrews AM/AC Minister for Public Services Gweinidog dros Wasanaethau Cyhoeddus
From: @gov.wales To: @Wales.GSI.Gov.UK Cc: @gov.wales; @wales.gsi.gov.uk; @Wales.GSI.Gov.UK; (Special Adviser) @wales.gsi.gov.uk> Sent: Mon 15/12/2014 12:52 Subject: RE: Minister for PS - London meetings
Thanks but that’s not my understanding. Any future visits like this need to be cleared with the FM, as he’s keen that SPADs are in the office as much as possible. I also understand that mentioned to that there is likely to be a SPAD meeting on 6 January which would need to attend. or I will let you know as soon as that is finalised.
Grateful if you could let me know on what basis needs to accompany the Minister to these meetings rather than a Private Secretary so I can let the FM know please.
Prif Ysgrifennydd Preifat i Prif Weinidog Cymru Senior Private Secretary to the First Minister of Wales Tel/Ffon: Fax/Ffacs: E-mail/E-bost: @wales.gsi.gov.uk ______From: @wales.gsi.gov.uk On Behalf Of PS Minister for Public Services Sent: 15 December 2014 12:39 To: PS First Minister; PS Minister for Public Services Cc: (Special Adviser); DS Minister for Public Services; (Special Adviser) Subject: RE: Minister for PS - London meetings
,
Further to the below, the Minister is also planning to visit London for the day on the 6th of January for some meetings which we couldn’t fit in during this week. They are:
; – to discuss experience of being a cooperative council; - expert on public service reform, ; - to discuss city regions, LEPs and links to Local Government Reform.
will be accompanying the Minister on this visit, she has discussed this with .
Many thanks,
Uwch Ysgrifennydd Preifat i Leighton Andrews AC, Gweinidog Gwasanaethau Cyhoeddus Senior Private Secretary to Leighton Andrews AM, Minister for Public Services Llywodraeth Cymru / Welsh Government Ffôn / Tel: [email protected] / [email protected] Yn hapus i ohebu yn Gymraeg neu’n Saesneg / Happy to correspond in English or Welsh
______From: (Perm Sec - OFM) On Behalf Of PS First Minister Sent: 20 November 2014 11:13 To: PS Minister for Public Services Cc: PS First Minister; (Special Adviser); DS Minister for Public Services Subject: RE: Minister for PS - London meetings
Thanks , the First Minister has noted.
Prif Ysgrifennydd Preifat i Prif Weinidog Cymru Senior Private Secretary to the First Minister of Wales Tel/Ffon: Fax/Ffacs: E-mail/E-bost: @wales.gsi.gov.uk ______From: (Perm Sec - OFM) On Behalf Of PS Minister for Public Services Sent: 18 November 2014 18:07 To: PS First Minister Cc: PS Minister for Public Services; (Special Adviser); DS Minister for Public Services Subject: Minister for PS - London meetings
, ,
Can you please make the First Minister aware that the Minister for Public Services is intending to set up a series of high level meetings in London over 3 days during winter recess in December to discuss innovative practice in public services in order to inform his thinking in terms of next steps on Public Services Reform.
The list of individuals/organisations we are approaching for meetings include:
(arranged); National Audit Office – taken on various previous role of Audit Commission on Local Government inspection and regulation; Audit Commission – previously Audit and Regulation of Local Government; Local Government Association – membership organisation and lead on improvement of Local Government; - Innovation enterprise; New Local Government Network – think tank on Local Government; Smith Institute – independent think tank on public policy; –(arranged); Lambeth Council – early adopter of co-operative council model; – expert on government reform and improvement (arranged); – ; – expert on public service reform,.
We are also seeking to arrange bilaterals with UK Ministers.
Kind regards,
Uwch Ysgrifennydd Preifat i Leighton Andrews AC, Gweinidog Gwasanaethau Cyhoeddus Senior Private Secretary to Leighton Andrews AM, Minister for Public Services Llywodraeth Cymru / Welsh Government Ffôn / Tel: [email protected] / [email protected] Yn hapus i ohebu yn Gymraeg neu’n Saesneg / Happy to correspond in English or Welsh
From: (OFMCO - Office of the First Minister) @gov.wales Sent: Thu 25/09/2014 16:48 To: Archive 2016 PS First Minister
1. MPS notified FM that he’s developing an amendment on violence against women and girls to table to the Bill (Violence, Domestic Abuse and Sexual Violence (Wales)Bill) – which will be necessary to get the Bill through. FM noted. 2. Discussion on smacking…FM confirmed that the WG will not support legislation or amendments outlawing smacking of children. He is clear that such a move without any previous manifesto commitments, public or professional consultation, consideration of legal consequences, advice from CPS etc would be entirely wrong and amount to bad government. MPS noted this clear Government position.
Thanks
Principal Private Secretary to the First Minister of Wales Prif Ysgrifennydd Preifat i Brif Weinidog Cymru
Tel/Ffon: E-mail/E-bost: @wales.gsi.gov.uk
Dylai'r datganiadau neu'r sylwadau uchod gael eu trin fel rhai personol ac nid o reidrwydd fel datganiadau neu sylwadau gan Llywodraeth Cynulliad Cymru, unrhyw ran ohono neu unrhyw gorff sy'n gysylltiedig ag ef.
Any of the statements or comments made above should be regarded as personal and not necessarily those of the Welsh Assembly Government, any constituent part or connected body.
Annex 2
Section 40 – Personal Data
Section 40 of the Freedom of Information Act sets out an exemption from the right to know if the information requested is personal information protected by the Data Protection Act 1998 (DPA). Personal data is defined in Section 1(1) of the DPA as: “personal data” means data which relates to a living individual who can be identified from those data; or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller”.
Under Section 40(2) of the FOI Act, personal data is exempt from release if disclosure would breach one of the data protection principles. I consider the principle being most relevant in this instance as being the first.
The first data protection principle states: Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless - (a) at least one of the conditions in Schedule 2 is met, and (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.
I consider that the withheld information in relation to names and contact details falls within the description of personal data as defined by the DPA and that its disclosure would breach the first data protection principle. The first data protection principle has two components:
1. Personal data shall be processed fairly and lawfully and 2. Personal data shall not be processed unless at least one of the conditions in DPA schedule 2 is met
Guidance from the Information Commissioner’s Office (Personal information (section 40 and regulation 13) v 1.4) states:
If disclosure would not be fair, then the information is exempt from disclosure.
This approach was endorsed by the Court of Appeal in the case of Deborah Clark v the Information Commissioner and East Hertfordshire District Council where it was held:
“The first data protection principle entails a consideration of whether it would be fair to disclose the personal data in all the circumstances. The Commissioner determined that it would not be fair to disclose the requested information and thus the first data protection principle would be breached. There was no need in the present case therefore to consider whether any other Schedule 2 condition or conditions could be met because even if such conditions could be established, it would still not be possible to disclose the personal data without breaching the DPA” (paragraph 63).
Our analysis of the ICO’s key considerations in assessing ‘fairness’, as set out in the Guidance, are presented below.
Some of the withheld information amounts to the personal data of civil servants who would not expect their names and contact details to be released in this context. There are set procedures in place for members of the public to contact both the Welsh Government using generic contact mechanisms. Having such systems in place means members of the public do not make direct contact with officials and avoids those officials dealing with potentially unnecessary and disruptive correspondence. In this context, the civil servants were liaising with each other as part of their normal course of business. In doing so, there would be no expectation that their personal details would at any time be placed in the public domain. [The same would apply to contact with 3rd parties]
Other information withheld under this exemption relates to the personal data of individuals who were liaising with civil servants in relation to routine business. In this context, the civil servants were liaising with those individuals as part of their normal course of business. In doing so, there would be no expectation by any of those concerned that their personal details would at any time be placed in the public domain.
The Welsh Government does not believe there is any legitimate interest in the public or the requestor having access to this information, and we do not see any legitimate reason why the named officials or named 3rd parties need to be contacted directly. Because of this, it is my view that the release of such information would be unfair and so breach the first data protection principle.
For that reason, I believe the information should be withheld under section 40(2) of the Freedom of Information Act. This is an absolute exemption and not subject to the public interest tests.
Annex 3
Summary
In relation to the first part of your request, I have concluded that all of the information is exempt from disclosure under section 35(1)(c) FOIA, as it relates to advice provided by the Law Officer.
In addition, some of the information which summarises, discusses or refers to the substance of legal advice, is also exempt under section 42 of the FOIA, as it is subject to legal professional privilege.
Public Interest Test
Public interest in favour of disclosing
The general presumption of openness and transparency, which the Freedom of Information Act aspires to.
Public interest in favour of withholding
An exemption under Section 35(1)(c) of the FOIA is subject to a public interest test. The convention that Law Officer advice is confidential, and is not disclosed without the Law Officer’s consent, is (as the Welsh Government’s Ministerial Code and UK Cabinet Office Manual reflect) integral to the workings of Government, and so there is a strong public interest in maintaining the exemption. Also, in this case, the substance of the advice is capable of future application and this militates in favour of exemption. I do not consider that the public interest in revealing the information in this case is sufficiently strong to outweigh the interest in maintaining its confidentiality.
As with the Law Officer exemption, there is a strong public interest in maintaining legal privilege generally. Like the Law Officer exemption, it is not an absolute exemption. But as the ICO guidance on section 42 (link below) makes clear, there must be strong countervailing public interest reasons in order to justify disclosure. The ICO guidance says that in addition to the general assumption in favour of disclosure under FOIA, other factors tending towards the public interest favouring disclosure might include whether there is a large amount of money involved, whether a large number of people are affected, whether there is a lack of transparency in the authority’s actions, or whether advice has been misrepresented or partially disclosed. https://ico.org.uk/media/for- organisations/documents/1208/legal_professional_privilege_exemption_s42.pdf
None of those countervailing factors are present here. In my view, the strong public interest in maintaining legal privilege and a “safe space” in which clients can seek it, and lawyers provide it, outweighs the public interest in disclosure. There is also the point, as argued above in relation to the Law Officer exemption, that while the particular issue is no longer “live”, the substance of the advice has the potential for future application and discussion.
Conclusion
The public interest in disclosure is not, in my view, so strong as to outweigh the strong public interest in maintaining these exemptions, which reflect the fundamental principle of lawyer-client confidentiality, integral to the provision of legal advice to Ministers.
Section 35(1)(c) FOIA – Law Officer exemption
1. I consider all of the information contained within these e-mails, and the attachments to them, to be exempt from disclosure by virtue of section 35(1)(c) FOIA (“the Law Officer exemption”) , on the grounds that all of the information relates to the provision of advice, or a request for provision of advice, by the Law Officer, i.e. the Counsel General.
2. The ICO’s guidance on section 35 (link below) notes (at para 127-128) that the Law Officer exemption covers not only advice actually provided by the Law Officer, and requests for such advice, but also information which recounts or refers to Law Officer advice, or to requests for it. Specifically, the guidance says that:
…any discussions about how to react to Law Officers’ advice will relate to that advice, and will be covered.
https://ico.org.uk/media/for-organisations/documents/1200/government-policy-foi-section-35- guidance.pdf
3. At paras 13-19, the guidance considers the meaning of “relates to” in this context, noting that it can be interpreted broadly:
…the information does not itself have to be created as part of the activity. Any significant link between the information and the activity is enough. Information may ‘relate to’ the activity due to its original purpose when created, or its later use, or its subject matter…information created after the activity was complete may still be covered if it refers back to the activity.
4. At paras 16-17, the guidance goes on to say:
If the majority of a piece of information relates to a particular activity, any associated or incidental information will also relate to that activity, even if in isolation it would not be covered. In practice, this means that there is generally no need to consider information line by line.
5. An exemption under Section 35(1)(c) of the FOIA is subject to a public interest test. The convention that Law Officer advice is confidential, and is not disclosed without the Law Officer’s consent, is (as the Welsh Government’s Ministerial Code and UK Cabinet Office Manual reflect) integral to the workings of Government, and so there is a strong public interest in maintaining the exemption. Also, in this case, the substance of the advice is capable of future application and this militates in favour of withholding the advice. I do not consider that the public interest in revealing the information in this case, given the nature and subject-matter of the information, is sufficiently strong to outweigh the interest in maintaining its confidentiality.
Section 42 FOIA – legal professional privilege
6. While all of the material falls within the Law Officer exemption, there are also parts of the advice which contain, summarise or discuss the substance of legal advice (whether it is the legal advice provided by the Counsel General, or legal advice provided by officials). This advice is also subject to legal professional privilege. That advice has not been disclosed to the public at large and so falls within the section 42 exemption (“the LPP exemption”).
7. As with the Law Officer exemption, there is a strong public interest in maintaining legal privilege generally. Like the Law Officer exemption, it is not an absolute exemption. But as the ICO guidance on section 42 (link below) makes clear, there must be strong countervailing public interest reasons in order to justify disclosure. The ICO guidance says that in addition to the general assumption in favour of disclosure under FOIA, other factors tending towards the public interest favouring disclosure might include whether there is a large amount of money involved, whether a large number of people are affected, whether there is a lack of transparency in the authority’s actions, or whether advice has been misrepresented or partially disclosed.
https://ico.org.uk/media/for- organisations/documents/1208/legal_professional_privilege_exemption_s42.pdf
8. None of those countervailing factors are present here. In my view, the strong public interest in maintaining legal privilege and a “safe space” in which clients can seek it, and lawyers provide it, outweighs the public interest in disclosure. There is also the point, as argued above in relation to the Law Officer exemption, that while the particular issue is no longer “live”, the substance of the advice has the potential for future application and discussion.
9. In conclusion, I consider that the emails requested in the first part of your request are exempt under Section 35(1)(c) and Section 42 of the Freedom of Information Act 2000.