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UK FoIA Decision Notice On Nick Pope Info

From: UFO UpDates - Toronto <post.nul>
Date: Sun, 01 Aug 2010 09:40:49 -0400
Archived: Sun, 01 Aug 2010 09:40:49 -0400
Subject: UK FoIA Decision Notice On Nick Pope Info




Source: Information Commissioner's Office - England, UK

http://tinyurl.com/2vvwmso


Freedom of Information Act 2000 (Section 50) Decision Notice

Date: 10 June 2010

Public Authority: Ministry of Defence

Address: Whitehall London SW1A 2HB Summary

The complainant requested the sight of the MOD's internal
correspondence regarding discussions that may have taken place
within the department concerning the publication of a book by an
employee of the MOD. The public authority refused to disclose
the information relying on section 36(2)(b) (prejudice to
effective conduct of public affairs) and section 40(2) (personal
information) of the Act. The Commissioner has found that the
requested information constitutes personal data and its
disclosure would breach the first data protection principle. The
Commissioner has therefore decided that the public authority was
correct to refuse the request. However, the Commissioner finds
that the MOD breached section 17(1)(b) of the Act by not stating
precisely in its first refusal notice what exemption was being
used.

The Commissioner's Role

1. The Commissioner's duty is to decide whether a request for
information made to a public authority has been dealt with in
accordance with the requirements of Part 1 of the Freedom of
Information Act 2000 (the "Act"). This Notice sets out his
decision. Background

2. The request concerns an individual named Nicholas Pope who
was at one time a serving member of the MOD. Between 1991 and
1994 he worked for a department within the MOD called Sec(AS)2a
(Secretariat of the Air Staff). Part of the duties of the
Sec(AS)2a was documenting UFO phenomena reported to the MOD.
Using this experience he has made television and radio
appearances and published several books, the first of these
being 'Open Skies, Closed Minds' in 1996. He resigned from the
MOD in November 2006.

The Request

3. On 11 April 2007 the complainant made the following request:

"My request, (therefore), is for copies of MoD papers, records
or other information relating to any or all internal
discussions, policy and/or briefings in response to

1) public statement made to the media and

2) via the release of Open Skies Closed Minds by Mr
Nicholas Pope during the period 1995-96. I wish you to include
specific public interest material within the coverage of this
request as follows:

a) Any internal discussions relating to Mr Pope's public
statements in the Mail on Sunday 2 July 1995, The Independent 3
June 1996 and other press articles during 1995/96.

b) Any specific discussions relating to Mr Pope's published
statements that contradicted the department's officially stated
policy on the subject of UFO's and their supposed defence
threat.

c) Any papers, generated by MOD or its PCB branch, that
relate to Mr Pope's public allegation that "there was a faction
[in the MOD] that certainly didn't want the book to appear".
Specifically I request a copy of "the short letter" referred
to in Mr Pope's interview with IUR which allegedly said his
manuscript was "completely unacceptable to MoD and quite beyond
any suitable amendment" and any related discussion which
resolved this issue. As Mr Pope has spoken of this matter openly
and in public it cannot be seriously argued that this material
falls within the auspices of the DPA."

4. The MOD acknowledged the request on 9 May 2007 and replied in
full on 30 May 2007 stating that it felt that all the
information held, falling within the scope of the request, was
exempt for release under section 40 (personal information)
and/or section 36(2)(b) (prejudice to the effective conduct of
public affairs) of the Act. 2

5. The complainant asked for this decision to be reviewed on 30
May 2007.

6. On 11 June 2007 the MOD wrote to the complainant giving him
the result of its internal review of the original decision. This
review confirmed the position of the MOD as originally stated.

7. The complainant was dissatisfied with this review and
therefore wrote to the MOD on 19 June 2007 requesting "an
independent internal review".

8. This request for a second review was acknowledged on 19 June
2007 and on the 10 August 2007 the MOD advised that this review
would be delayed. The MOD again contacted the complainant in
January 2008 and advised that it was still not in a position to
undertake the review.

9. After a series of holding letters and reminders from the
complainant the MOD communicated the results of its internal
review on 10 November 2008 confirming its use of section
36(2)(b) and section 40(2).


The Investigation

Scope of the case

10. On 1 December 2008 the complainant contacted the
Commissioner to complain about the way his request for
information had been handled. The complainant specifically asked
the Commissioner to consider the MOD's application of exemptions
to the information. Chronology

11. Unfortunately, due to a backlog of complaints concerning
public authorities' compliance with the Act, it was not until 1
December 2009 that the Commissioner wrote to the MOD. With
regards to the section 40(2) exemption cited he asked the MOD
which of the data protection principles it believed would be
breached if the information was disclosed. With regards to
section 36, the Commissioner asked the MOD to forward a copy of
the submission to, and response from, the relevant qualified
person' together with an explanation of the public interest
arguments considered.

12. The MOD responded on 6 January 2010 outlining its reasons
for citing the exemptions at section 36(2)(b) and section 40(2).
This letter included a copy of the submission to, and reply
from, the relevant qualified person.

13. The Commissioner wrote to the complainant on 21 April 2010
in an attempt to resolve the case informally.

14. The complainant replied to the Commissioner on 4 May 2010
with further representations.

Analysis Exemption - Section 40

15. Section 40(2) of the Act provides an exemption for
information which is the personal data of any third party where
disclosure would breach any of the data protection principles
contained in the Data Protection Act 1998 (DPA). Is the
information personal data?

16. In order to rely on the exemption provided by section 40(2),
the requested information must constitute personal data as
defined by the DPA. Section 1 of the DPA defines personal data
as:

'...data which relate to a living individual who can be
identified

a) from those data, or

b) from those data and other information which is in the
possession of, or is likely to come into the possession of, the
data controller,

and includes any expression of opinion about the individual and
any indication of the intention of the data controller or any
other person in respect of the individual.'

17. The requested information obviously centres on one
individual, i.e. Mr Pope. He is identifiable from each of the
withheld documents and all of the documents are of biographical
significance. Several of the documents also contain expressions
of opinion about the individual. It is therefore correct to
state that all of the information is personal data as defined by
the DPA.

Would disclosure breach any of the data protection principles?

18. The MOD has argued that disclosure of the documents withheld
would breach the first data protection principle as disclosure
would be unfair and no condition contained in Schedule 2 of the
DPA could be met. The first data protection principle states
that:

1. Personal data must 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.

19. In considering whether a disclosure under the Act would be
fair the Commissioner must balance the consequences for the data
subject of any disclosure and the reasonable expectations of the
data subject against any legitimate interests in disclosing the
information. For example, the general principles of
accountability and transparency enshrined within the Act.

Consequences of disclosure

20. The potential harm or distress that disclosure of this
information may cause to the individual has also been considered
by the Commissioner. The complainant has suggested that the
individual concerned has courted media interest and has placed
himself very much in the public eye.

Whether this is true or not does not detract from the fact that
the individual has the right to some privacy in respect of this
information. Although the individual has spoken publically about
his time at the MOD the individual has not spoken publically
about the contents of the information the MOD is seeking to
withhold. The Commissioner believes that if the information were
to be released it has the potential to cause some element of
harm or distress to the individual concerned.

Reasonable expectations

21. The complainant has suggested that as the individual
concerned was at the time a public employee then the information
should be made public. The complainant has stated that the
purpose of the DPA is to protect the private lives of
individuals. Where information requested is about people acting
in a work or official capacity then it should be released.

22. The Commissioner notes this assertion but it should be noted
that although an individual is employed as a civil servant this
does not mean that all information relating to their role is
public. For example a civil servant may have an individual end
of year review which details how well or how badly they are
doing in their role. This is private in nature even though it is
not about their private life outside of their employment. Having
reviewed the information the Commissioner believes that the
information withheld is of a private nature even though it
relates to aspects of the how the individual was undertaking his
public role.

23. In the case in question, when considering whether the
individual concerned has a reasonable expectation' that the
information would not be disclosed the Commissioner is mindful
of the comments made by the complainant. The complainant stated
"I ask you to consider whether Mr Pope has any reasonable
expectation of privacy in regard to his statements to the media,
given his career as a media pundit and self-declared former head
of the MoD's UFO Project'".

24. The Commissioner has examined the withheld information and
has considered whether, in the context of this particular case,
the individual will have had a reasonable expectation' of the
information being placed in the public domain. The Commissioner
notes that although the interviews given and articles written by
the individual are very obviously in the public domain this does
not in itself mean that the individual will have an expectation
that all correspondence and comments made about these public
statements will be made public.

25. The information withheld appears to be of a private nature
and this is not altered by the fact that its creation came about
because of a number of public acts. The Commissioner therefore
accepts that the individual concerned would not have an
expectation that the information withheld would be made
publically available.

26. Furthermore, the MOD advised in its letter to the
Commissioner dated 6 January 2010 that the individual concerned
has written to the MOD and asked for the information not to be
released into the public domain. The Commissioner notes this and
accepts that this is also a contributing factor to support the
withholding of the information.

Legitimate interests in disclosure

27. Notwithstanding the data subject's reasonable expectations
or any damage or distress caused to them by disclosure, it may
still be fair to disclose the requested information if it can be
argued that there is a more compelling public interest.

28. The Commissioner must consider the seniority of the civil
servant in question. It is generally accepted that the more
senior the civil servant then the more likely it is that
withheld information will be released. The individual in
question was not at any time a senior civil servant.


However, the complainant has suggested that the individual's
claim that he was the man who used to run the British
Government's UFO Project' implies seniority, real or imagined'.
The complainant argues that were the documents to be released
they would "set the record straight", providing another strong
argument for the release of the information in the public
interest.

29. This position is noted but the Commissioner contends that
the role of the individual and his substantive grade is public
knowledge. Were the withheld information to be released it would
not improve the public understanding of the situation. It would
not clarify the individual's grade or position within the MOD.
It would therefore not further this public interest.

30. The complainant has suggested that even if the withheld
information falls with the scope of the exemption at section
40(2) of the Act then the public interest in releasing the
information outweighs any prejudice to the rights and interests
of the data subject. The Commissioner notes this but must
clarify that if section 40(2) applies then the relevant
information is exempt and there is no additional public interest
balance.

31. The complainant argues that as the individual was
employed as a public servant, paid for by taxpayers, who made
public comments that dispute his own department's publicly
stated policy on a matter then this is of public interest. The
complainant states that because of the individual's experience
as head of the MOD's UFO desk' he continues to use this as his
primary qualification to comment on current MOD policy, this
again makes the withheld information of public interest.

32. When considering section 40(2) of the Act the Commissioner
must consider whether disclosure is necessary for legitimate
public interests, with no unwarranted harm to the individual's
interests.

33. The complainant has suggested that the MOD could release
part of the information by simply redacting appropriate portions
of the documents. To support this argument the complainant
refers to an internal memo from the Defence Intelligence Staff
(DIS) that has been released by the MOD. The MOD has redacted
the names of both the author and the individual that is the
subject matter but has left the text of the document complete.
The complainant suggests that the name redacted is very
obviously the same individual that is the centre of his current
request and therefore the MOD has set a precedent in releasing
redacted documents concerning this individual's conduct whilst
with the MOD.

34. The Commissioner has examined this released document and
compared it with the withheld information relevant to this
current request. The Commissioner feels that the information
being withheld is sufficiently different from the released
information in that the withheld information is of a more
personal and sensitive nature.

35. With regards to the suggestion by the complainant that the
documents could be released in a redacted format, the
Commissioner has considered this and believes that the documents
would either make no sense to the reader or the subject matter
and tone of the documents would be so obvious that the
redactions would serve little purpose.

36. In this current case the Commissioner has considered the
information being withheld and noted the comments made by the
Complainant. The Commissioner accepts that there is always a
legitimate public interest in promoting the transparency of
public bodies thus ensuring greater accountability. The
Commissioner feels that this is a finely balanced case and that
the complainant has provided well reasoned arguments to support
his case. However, in this particular case the Commissioner does
not believe that release of the information concerned would
further the legitimate public interest in any significant way.
The individual's public life is well known and although for a
period of time this coincided with his role as a public employee
it does not mean that all information relating to this
employment should be made public. Nor does he believe that
disclosure is necessary for the public interest.

37. The Commissioner considers that the MOD correctly used the
exemption at section 40(2) of the Act to withhold all of the
information he has therefore not considered it necessary to
examine its use of section 36(2)(b).

Procedural Requirements

38. The Commissioner finds that by not issuing the initial
refusal notice within the required 20 working day period the MOD
is in breach of section 17(1) of the Act.

39. The Commissioner also finds that by not stating the specific
subsection of the exemption used in its original refusal and at
the first internal review stage that the MOD is in breach of
section 17(1)(b) of the Act.

The Decision

40. The Commissioner's decision is that the public authority
dealt with the following elements of the request in accordance
with the requirements of the Act:

o Refusal to release the requested information using the
exemption at section 40(2) of the Act

41. However, the Commissioner has also decided that the
following elements of the request were not dealt with in
accordance with the Act:

o By failing to issue a refusal notice within 20 working days
the MOD breached section 17(1) and for failing to cite the
precise section and subsection of the Act in order to withhold
the information the MOD also breached section 17(1)(b) of the
Act

Steps Required

42. The Commissioner requires no steps to be taken.

Right of Appeal

43. Either party has the right to appeal against this Decision
Notice to the First-tier Tribunal (Information Rights).

Information about the appeals process may be obtained from:

First-tier Tribunal (Information Rights)
GRC & GRP Tribunals,
PO Box 9300,
Arnhem House,
31, Waterloo Way,
LEICESTER,
LE1 8DJ
Tel: 0845 600 0877
Fax: 0116 249 4253
Email:
informationtribunal.nul
Website: www.informationtribunal.gov.uk

If you wish to appeal against a decision notice, you can obtain
information on how to appeal along with the relevant forms from
the Information Tribunal website. Any Notice of Appeal should be
served on the Tribunal within 28 (calendar) days of the date on
which this Decision Notice is sent.

Dated the 10th day of June 2010

Signed

'...'...'...'...'...'...'...'...'...'...'...'...'...'...'...'...'

Gerrard Tracey

Principal Policy Adviser
Information
Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF 10

Legal Annex General Right of Access Section 1(1) provides that -
"Any person making a request for information to a public
authority is entitled

(a) to be informed in writing by the public authority whether it
holds information of the description specified in the request,
and

(b) if that is the case, to have that information communicated
to him."

Section 1(2) provides
that - "Subsection

(1) has the effect subject to the following provisions of this
section and to the provisions of sections 2, 9, 12 and 14."

Section 1(3) provides that =A1V "Where a public
authority

(a) reasonably requires further information in order to identify
and locate the information requested, and

(b) has informed the applicant of that requirement,

the authority is not obliged to comply with subsection (1)
unless it is supplied with that further information."

Section 1(4) provides that


"The information

(a) in respect of which the applicant is to be informed under
subsection (1)(a), or

(b) which is to be communicated under subsection (1)(b), is the
information in question held at the time when the request is
received, except that account may be taken of any amendment or
deletion made between that time and the time when the
information is to be communicated under subsection (1)(b), being
an amendment or deletion that would have been made regardless of
the receipt of the request."

Section 1(5) provides that

"A public authority is to be taken to have complied with
subsection (1)(a) in relation to any information if it has
communicated the information to the applicant in accordance with
subsection (1)(b)."

Section 1(6) provides that

"In this Act, the duty of a public authority to
comply with subsection (1)(a) is referred to as "the duty to
confirm or deny"."

Refusal of Request

Section 17(1) provides that - "A public authority which '... is
to any extent relying:

- on a claim that any provision of Part II relating to the duty
to confirm or deny is relevant to the request, or

- on a claim that information is exempt information

must, within the time for complying with section 1(1), give the
applicant a notice which

(a) states that fact,

(b) specifies the exemption in question, and

(c) states (if that would not otherwise be apparent) why the
exemption applies."

Section 17(3) provides that

- "A public authority which '... is to any extent
relying:

- on a claim that in all the circumstances of the case, the
public interest in maintaining the exclusion of the duty to
confirm or deny outweighs the public interest in disclosing
whether the public authority holds the information, or

- on a claim that in all the circumstances of the case, the
public interest in maintaining the exemption outweighs the
public interest in disclosing the information must either in the
notice under section 17(1) or in a separate notice

within such time as is reasonable in the circumstances, state
the reasons for claiming - 12

(a) that, on a claim that in all the circumstances of the case,
the public interest in maintaining the exclusion of the duty to
confirm or deny outweighs the public interest in disclosing
whether the public authority holds the information, or

(b) that,
in all the circumstances of the case, the public interest in
maintaining the exemption outweighs the public interest in
disclosing the information." Prejudice to effective conduct of
public affairs

Section 36(2) provides that

"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

- (a) would, or would be likely to, prejudice-

(i) the maintenance of the convention of the collective
responsibility of Ministers of the Crown, or

(ii) the work of the Executive Committee of the Northern Ireland
Assembly, or

(iii) the work of the executive committee of the National
Assembly for Wales,


(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.

Personal information

Section 40(1) provides that

"Any information to which a request for information relates is
exempt information if it constitutes personal data of which the
applicant is the data subject."

Section 40(2) provides that

"Any information to which a request for information relates is
also exempt information if

(a) it constitutes personal data which do not fall within
subsection (1), and

(b) either the first or the second condition below is
satisfied."

Section 40(3) provides that

"The first condition is

(a) in a case where the information falls within
any of paragraphs (a) to (d) of the definition of "data" in
section 1(1) of the Data Protection Act 1998, that the
disclosure of the information to a member of the public
otherwise than under this Act would contravene-

(i) any of the data protection principles, or

(ii) section 10 of that Act (right to prevent processing likely
to cause damage or distress), and


(b) in any other case, that the disclosure of the
information to a member of the public otherwise than under this
Act would contravene any of the data protection principles if
the exemptions in section 33A(1) of the Data Protection Act 1998
(which relate to manual data held by public authorities) were
disregarded."

Data Protection Act 1998

PART I PRELIMINARY 1

Basic interpretative provisions

(1) In this Act, unless the context otherwise requires

"data" means information which


(a) is being processed by means of equipment operating
automatically in response to instructions given for that
purpose,

(b) is recorded with the intention that it should be processed
by means of such equipment,

(c) is recorded as part of a relevant filing system or with the
intention that it should form part of a relevant filing system,
or

(d) does not fall within paragraph (a), (b) or (c) but forms
part of an accessible record as defined by section 68;


"data controller" means, subject to subsection (4), a person who
(either alone or jointly or in common with other persons)
determines the purposes for which and the manner in which any
personal data are, or are to be, processed;

"data processor", in relation to personal data, means any person
(other than an employee of the data controller) who processes
the data on behalf of the data controller;

"data subject" means an individual who is the subject of
personal data;

"personal data" means data which relate to a living individual
who can be identified

(a) from those data, or

(b) from those data and other information which is in the
possession of, or is likely to come into the possession of, the
data controller,

and includes any expression of opinion about the individual and
any indication of the intentions of the data controller or any
other person in respect of the individual;

"processing", in relation to information or data, means
obtaining, recording or holding the information or data or
carrying out any operation or set of operations on the
information or data, including

(a) organisation, adaptation or alteration of the information or
data,

(b) retrieval, consultation or use of the information or
data,

(c) disclosure of the information or data by transmission,
dissemination or otherwise making available, or

(d) alignment, combination, blocking, erasure or destruction of
the information or data;

"relevant filing system" means any set of information relating
to individuals to the extent that, although the information is
not processed by means of equipment operating automatically in
response to instructions given for that purpose, the set is
structured, either by reference to individuals or by reference
to criteria relating to individuals, in such a way that specific
information relating to a particular individual is readily
accessible.


SCHEDULES Section 4(1) and (2).

SCHEDULE 1 THE DATA PROTECTION PRINCIPLES

PART I THE PRINCIPLES

1 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.

SCHEDULE 2 CONDITIONS RELEVANT FOR PURPOSES OF THE FIRST
PRINCIPLE:

PROCESSING OF ANY PERSONAL DATA

1 The data subject has given his consent to the processing.

2 The processing is necessary

(a) for the performance of a contract to which the data subject
is a party, or

(b) for the taking of steps at the
request of the data subject with a view to entering into a
contract.

3 The processing is necessary for compliance with any legal
obligation to which the data controller is subject, other than
an obligation imposed by contract.

4 The processing is necessary in order to protect the vital
interests of the data subject.

5 The processing is necessary

(a) for the administration of justice,

(b) for the exercise of any functions conferred on any person by
or under any enactment,

(c) for the exercise of any functions of the Crown, a Minister
of the Crown or a government department, or

(d) for the exercise of any other functions of a public nature
exercised in the public interest by any person.

6 (1) The processing is necessary for the purposes of legitimate
interests pursued by the data controller or by the third party
or parties to whom the data are disclosed, except where the
processing is unwarranted in any particular case by reason of
prejudice to the rights and freedoms or legitimate interests of
the data subject. (

2) The Secretary of State may by order specify particular
circumstances in which this condition is, or is not, to be taken
to be satisfied.



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