FOIA Section 35 Exemption

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Section 35: Formulation Of Government Policy

Section 35 is aimed at protecting the government policy-making process and its proper use is essential to ensuring the delivery of effective government. Section 35 applies to information which relates to:

  1. the formulation and development of government policy;
  2. communications between Ministers (including Cabinet proceedings);
  3. the provision of advice by the Law Officers (or any request for advice); and
  4. the operation of any Ministerial private office.

Key points:

  • Section 35 can only be used by government departments or the National Assembly for Wales;
  • Once a policy decision has been taken, statistical information that was used to inform the decision will no longer be protected only on the grounds that it relates to government policy or ministerial communications;
  • Departments must be alive to the need to consult with interested departments and, where necessary, the DCA co-ordination unit to ensure that this exemption is properly applied;
  • Section 35 It is closely related to section 36 which protects the effective conduct of public affairs but the two exemptions are alternatives and cannot be used cumulatively;
  • Section 35 is subject to a public interest balance. Section 35(4) indicates that there is a particular public interest in the disclosure of factual information which is used to inform policy decisions.

What the law says

35 Formulation of government policy, etc

(1) Information held by a government department or by the National Assembly for Wales is exempt information if it relates to—
(a) the formulation or development of government policy,
(b) Ministerial communications,
(c) the provision of advice by any of the Law Officers or any request for the provision of such advice, or
(d) the operation of any Ministerial private office.
(2) Once a decision as to government policy has been taken, any statistical information used to provide an informed background to the taking of the decision is not to be regarded—
(a) for the purposes of subsection (1)(a), as relating to the formulation or development of government policy, or
(b) for the purposes of subsection (1)(b), as relating to Ministerial communications.
(3) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1).
(4) In making any determination required by section 2(1)(b) or (2)(b) in relation to information which is exempt information by virtue of subsection (1)(a), regard shall be had to the particular public interest in the disclosure of factual information which has been used, or is intended to be used, to provide an informed background to decision-taking.
(5) In this section—
  • “government policy” includes the policy of the Executive Committee of the Northern Ireland Assembly and the policy of the National Assembly for Wales;
  • “the Law Officers” means the Attorney General, the Solicitor General, the Advocate General for Scotland, the Lord Advocate, the Solicitor General for Scotland and the Attorney General for Northern Ireland;
  • “Ministerial communications” means any communications—
(a) between Ministers of the Crown,
(b) between Northern Ireland Ministers, including Northern Ireland junior Ministers, or
(c) between Assembly Secretaries, including the Assembly First Secretary,
and includes, in particular, proceedings of the Cabinet or of any committee of the Cabinet, proceedings of the Executive Committee of the Northern Ireland Assembly, and proceedings of the executive committee of the National Assembly for Wales;
  • “Ministerial private office” means any part of a government department which provides personal administrative support to a Minister of the Crown, to a Northern Ireland Minister or a Northern Ireland junior Minister or any part of the administration of the National Assembly for Wales providing personal administrative support to the Assembly First Secretary or an Assembly Secretary;
  • “Northern Ireland junior Minister” means a member of the Northern Ireland Assembly appointed as a junior Minister under section 19 of the [1998 c. 47.] Northern Ireland Act 1998.

ICO Lines To Take

Relevant Lines to Take
  • LTT170 - Government Policy can be produced in many ways - 24/02/2010
  • LTT159 - Law Officer’s Advice and similarity with Legal Professional Privilege - 26/10/2009
  • LTT52 - Statistical Information - 28/09/2009
  • LTT146 - Public Interest Test for "raw notes" and "aide memoire notes" - 03/09/2009
  • LTT155 - Gateway Reviews are an audit function - 28/05/2009
  • LTT148 - Public interest arguments presented in favour of maintaining a relevant exemption for withholding information on lobbyists - 24/03/2009
  • LTT149 - Public interest in disclosing information about lobbyists - 24/03/2009
  • LTT127 - Scope & overlap of s35(1)(a) and s35(1)(b) - 29/10/2008
  • LTT128 - Wider impact of disclosure on the conduct of good government - 29/10/2008
  • LTT129 - Safe space arguments - 29/10/2008
  • LTT51 - "Relates to" - 11/07/2008
  • LTT43 - Guiding principles in relation to s35(1)(a) & Reg 12(4)(e) public interest - 11/07/2008
  • LTT42 - No inherent public interest in s35 - 11/07/2008
  • LTT62 - Completion of policy formulation and development in relation to the PIT - 11/07/2008
  • LTT107 - No prejudice / adverse effect test for class based exemptions / exceptions - 20/06/2008
  • LTT133 - Overview of Section 35 & Regulation 12(4)(e) Public Interest arguments - 11/03/2008
  • LTT132 - Public Interest in protecting collective Cabinet responsibility - 11/03/2008
  • LTT130 - "Chilling effect" arguments - 11/03/2008
  • LTT131 - Risk to the role and integrity of Civil Service - 11/03/2008
  • LTT75 - Inter-relation of s35 & s36, and of s30 & s31 - 10/11/2007
  • LTT66 - Minutes & agendas - 21/08/2007
  • LTT61 - Advice to Decision Makers - 08/07/2007
  • LTT50 - Disclosure of minutes - 07/05/2007


Decision Notices

Complaints upheld / partly upheld (P) Complaints not upheld

Includes DNs up to: 26 April 2010



Freedom of Information Act 2000
Exemptions
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