cc: "Mcgarvie Michael Mr \(ACAD\)" <M.Mcgarvie@uea.ac.uk>
date: Thu, 10 Jul 2008 16:02:37 +0100
from: "Palmer Dave Mr \(LIB\)" <David.Palmer@uea.ac.uk>
subject: FW: Freedom of Information request (FOI_08-23) - Appeal resolution
to: "Briffa Keith Prof \(ENV\)" <K.Briffa@uea.ac.uk>, "Osborn Timothy Dr \(ENV\)" <T.Osborn@uea.ac.uk>, "Jones Philip Prof \(ENV\)" <P.Jones@uea.ac.uk>

   Gents,
   A copy of what was sent to Jonathan.  Please note that the opinion from the Met Office
   quoted below is subject to lawyer-client privilege and should not be shared outside the
   group that has now seen it.

   Cheers, Dave

   ______________________________________________
   From:   Palmer Dave Mr (LIB)
   Sent:   Thursday, July 10, 2008 3:56 PM
   To:     Colam Jonathan Mr (ISD)
   Cc:     Mouland Lucy Dr (VCO)
   Subject:        Freedom of Information request (FOI_08-23) - Appeal resolution draft
   Importance:     High

   Jonathan,
   A draft response for your review and comment.  I have been in contact with the ICO who are
   of the opinion that, if we feel that there are exemptions that we 'missed' on the first
   review of the request, they should be raised at this stage.

   I have added a s.40 exemption on the assumption that, even if names of correspondents are
   redacted, there is enough information in what's left to reveal the identity of
   individuals.  If what is left is 'personal data', then s.40 clearly applies; it is whether
   what is left qualifies as personal data....

   Additionally, I have added a s.36 exemption on the basis that the disclosure of this
   information would clearly "in the reasonable opinion of a qualified person", "inhibit the
   free and frank provision of advice, or, the free and frank exchange of views for the
   purpose of deliberation" and "would otherwise prejudice... the effective conduct of public
   affairs".  This section, as I read it, does not limit the provision of advice or exchange
   of views to inside an organisation.  I have been in touch with Lucy to determine, in a
   rough way, the opinion of the 'qualified person' (i.e. the VC) in this case & she concurs.

   There is an additional argument that we might wish to make.  I have been in touch with the
   Met Office that have received a similar request.  They have been in touch with the ICO and
   are making the argument that the correspondence is not actually 'held' by them at all!  The
   argument is as follows: guidance from last year from the ICO indicates that information in
   which the institution has no interest but physically possesses, is not 'held' by them for
   the purposes of the Act. Guidance states:

   "In these circumstances the public authority will have an interest in this information and
   will make disclosure decisions. This is because although

   ownership may still rest with the depositor, the public authority with whom the information
   has been deposited effectively controls the information and holds it in its own right. It
   will therefore be difficult to argue that the information is merely held on behalf of
   another person and consequently not held for the purposes of the public authority itself."

   And

   "There will be cases where such information is simply held on behalf of a third party, for
   example for preservation or security purposes. Perhaps the public

   authority may be holding the information as part of a service (whether for gain or
   otherwise) to the depositor. Although this information is in the possession of a public
   authority, it does not fall within the scope of the Act as the public authority has no
   interest in it."

   And finally in regards personal emails in general

   "In most circumstances private emails sent or received by staff in the workplace would not
   be held by the authority as it has no interest in them. It will be a

   question of fact and degree whether a public authority does hold them, dependent on the
   level of access and control it has over the e mail system and

   on the computer use policies. It is likely to be the exception rather than the rule that
   the public authority does hold them."

   I have also received some correspondence from the Met Office that sets out their argument
   along these lines; and further an assertion that the ICO has indicated that, on the facts
   of their particular case (emails not created by the organisation, or used by them).  To
   quote the internal briefing note

   "...the IPCC consultation exercise did not have a role in respect of the specific functions
   of the Met Office.  It was aligned with them but not a function of the Met Office.  The
   whole purpose of the IPCC is that it is independent and objective."

    The Met Office are arguing that their Director's involvement was in a
   pseudo-academic/personal capacity and not as a representative of the Met Office and the
   IPCC work was not Met Office work. What it comes down to is our corporate interest in this
   IPCC correspondence - if we have some, then it would be 'held' by us.  I have emailed
   Mssrs. Briffa, Osborn & Jones to assess this .. .but your feeling?

   Where we to make this argument, I would put it immediately after our re-assertion of our
   primary grounds of exemption; if the ICO does decide that we 'hold' this correspondence, we
   would need to have a position on it's disclosure.

   Cheers, Dave

   <<Appeal_review_draft.doc>>
   ____________________________
   David Palmer
   Information Policy Officer
   University of East Anglia
   Norwich, England
   NR4 7TJ
   Attachment Converted: "c:\eudora\attach\Appeal_review_draft.doc"
