Information Commissioner's Office

Ministry of Defence

16 June 2015, Central government

The complainant submitted four requests to the Ministry of Defence seeking information about how it had handled an earlier request, submitted by another individual, which had sought a copy of a presentation made to the Army Justice Board (AJB). In response the MOD provided the complainant with copies of the information falling within the scope of his four requests, albeit with exemptions applied on the basis of section 21 (information reasonably accessible by other means); section 30 (investigations); section 31 (investigations); section 35 (government policy); section 36 (effective conduct of public affairs); section 40 (personal data) and section 42 (legal professional privilege). The complainant disputed the application of the various exemptions and was also dissatisfied with the MOD’s failure to explain which parts of the redacted information had been withheld on the basis of section 36 of FOIA. The Commissioner’s decision is that the MOD is entitled to rely on the various exemptions it has cited. The only exceptions to this are as follows, The information redacted from agenda item 2a (indicated as serial 11 on the schedule of information provided to the Commissioner) is not exempt from disclosure on the basis of section 35(1)(a). The information redacted from agenda item 4 (indicated as serial 20 on the schedule of information provided to the Commissioner) is not exempt from disclosure on the basis of section 21. The information redacted from slide 40 from the AJB presentation (serial 27 in the MOD’s schedule as provided to the Commissioner); the information redacted from briefing notes on agenda item 1b (serial 7); the information redacted from agenda item 4 (serial 23); and the information redacted from agenda item 6a (serial 26), sub para 3b is not exempt from disclosure on the basis of section 40(2). The MOD breached section 17(1)(b) by failing to specify which exemption had been applied to each particular redaction. The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation. Provide the complainant with the relevant parts of the briefing notes without the redactions identified at serials 7, 11, 20 and 23 in place. Provide the complainant with a copy of the information disclosed to him on 16 and 29 September 2014 but this time annotating the redactions which have been made on the basis of section 36. The public authority must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.

FOI 21: Partly upheld FOI 30: Partly upheld FOI 31: Partly upheld FOI 35: Partly upheld FOI 36: Partly upheld FOI 42: Partly upheld