Line to take - LTT51 - "Relates to"

• FOI/EIR: FOI
• Section/Regulation: s35
• Issue: "Relates to"
• Source: IT
• Details: DfES / Evening Standard (19 February 2007); Scotland Office (08 August 2008); O’Brien / BERR (7 October 2008)
• Related Lines to Take: LTT42, LTT43, LTT127
• Related Documents FS50074589, EA/2006/0006 (DFES), EA/2007/0070 (Scotland Office), EA/2008/0011 (O’Brien)
• Contact: RM/LA
• Date: 07/11/2008
• Policy Reference: LTT51
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

The term ‘relates to’ in section 35(1) can safely be interpreted broadly. Although this has the potential to capture a lot of information, the fact that the exemption is qualified means that public authorities are obliged to disclose any information which caused no significant harm to the public interest.

Further Information

DFES case and s35(1)(a)

In the case of DfES v the information Commissioner & the Evening Standard the Tribunal considered whether minutes of senior management meetings concerning a funding ‘crisis’ in schools were exempt. The information had been withheld under s35(1)(a).

S35(1)(a) provides a class based exemption for information that relates to the formulation or development of government policy. In the DfES case the Tribunal found that the term ‘relates to’ could safely be given a broad interpretation because as the exemption was qualified public authorities are required to adopt a common sense approach to the disclosure of any information which caused “... no, or no significant damage to the public interest.” (para 53).

This broad approach was demonstrated in para 58. The IC had argued that not all the information contained in the minute of one particular meeting related to policy development or formulation. The minute in question consisted of a brief summary of the background to the problem. In the Decision Notice we had taken the view that the information was more of a report on how the ‘crisis’ had arisen even though one of the points raised did suggest what approach was required in the future.

The Tribunal decided that, “If the meeting or discussion of a particular topic within it, was, as a whole, concerned with s35(1)(a) activities, then everything that was said and done is covered. Minute dissection of each sentence for signs of deviation from its main purpose is not required nor desirable.”

The Tribunal’s approach also demonstrates that the where the majority of information relates to the formulation or development of government policy then any associated or incidental information that informs a policy debate should also be considered as relating to the s 35(1)(a) purpose.

Furthermore the Tribunal clarified at para 55 that the “immediate background to policy discussions is itself information caught by s35(1)(a), an inference which we believe, is readily drawn from the wording of s.35(4).” (s.35(4) concerns the particular public interest in disclosing factual information, once a policy decision has been taken).

Scotland Office case and s35(1)(b)

In Scotland Office v The information Commissioner (EA/2007/0070) the Tribunal applied this same principle to s35(1)(b). It commented (at paragraph 50) that “The exemptions in section 35(1) apply where the information “relates to” the matters set out in the subsections, so information is exempt if it relates to the formulation or development of government policy in the case of sub-section (a), or relates to Ministerial communication, in the case of sub-section (b). This means that the information in question does not have to be, for example, Ministerial communications; it comes within the scope of the exemption if it “relates to” Ministerial communications.... In the context of this case, communications between a Private Secretary writing on behalf of his/her Minister and another Minster, constitutes Ministerial communications”

Scotland Office case (EA/2007/0128) confirmed the status to be accorded to letters written by one Private Secretary to another - “Such letters would contain the views of the relevant Ministers and so would, in our opinion, properly fall to be considered under section 35(1)(b)”.

The Commissioner considers that the correspondence referred to in the two Scotland Office cases was effectively written ‘on behalf of’ a Minister and so would directly qualify as Ministerial communications. It would ‘be’ rather than just ‘relate to’ Ministerial communications.

Information that recounts or refers to specified Ministerial communications, whether written or verbal, would also engage section 35(1)(b) because it would ‘relate to’ ministerial communications.

This does not mean however, that all information which reveals Ministerial views will necessarily engage this sub-section, as if such information is not connected to an actual Ministerial Communication of some kind then s35(1)(b) will not apply. For example if correspondence between officials expresses what the official believes the Ministers view to be, but the official hasn’t taken this view from a Ministerial communication, and isn’t writing on behalf of the Minister then this information will neither ‘relate to’ nor ‘be’ a ministerial communication.

O’Brien case

In O’Brien v the Information Commissioner the Tribunal commented that “Section 35(1)(a) and (b) exempt information which “relates to” the formulation of policy and Ministerial communications. It is clear in our view that the information does not have to come into existence before the policy is formed for section 35(1)(a) to apply and that section 35(1)(b) is not confined to the Ministerial communications themselves.