25 March 2022
Request for Information – ATISN 16099
You asked for the following information
- The pre-action response letter on the Big Brother Watch Judicial Review dated 26 November 2021
- The legal advice provided with regards to the pre-action response letter
- All evidence of the efficacy of the COVID Pass scheme considered by the Welsh government that:
- demonstrated that the scheme would mitigate the risk of COVID-19 transmission; and
- indicated that the scheme would not or might not have that effect; all documents recording the Welsh government's analysis of the evidence at subparagraph a. above and the conclusions reached; …
- all ministerial submissions and appended documents along with internal impact assessments (if any exist) or equivalent documents prepared to support the proposed introduction of the COVID Pass scheme.
I can confirm that Welsh Government holds information of this description. However, I have concluded that the information requested under parts 1, 2 and 3 (iii) of your request is exempt from disclosure under the following sections of the Freedom of Information Act 2000 (“the Act”):
section 32 (court inquiry or arbitration records);
- section 35 1(a) Information held by a government department or by the Welsh Assembly Government is exempt information if it relates to— (a) the formulation or development of government policy; and
- section 41 (legal professional privilege).
An explanation of our application of these exemptions and the public interest tests (where relevant) is set out at the Annex to this letter.
I have also concluded that information requested under part 3(i) and (ii) regarding the evidence that was considered to support the decision to bring in and to extend Covid passes is readily available and reasonably accessible, as it has previously been published, therefore it is exempt information under Section 21 of the Act – information accessible to the applicant by other means. I have provided a link to the Welsh Government’s Disclosure Log where this information can be located for your convenience: https://gov.wales/atisn15678. Section 21 is an absolute exemption and not subject to the public interest test.
If you are dissatisfied with the Welsh Government’s handling of your request, you can ask for an internal review within 40 working days of the date of this response. Requests for an internal review should be addressed to the Welsh Government’s Freedom of Information Officer at:
Information Rights Unit, Welsh Government, Cathays Park, Cardiff, CF10 3NQ or Email: Freedom.firstname.lastname@example.org.
Please remember to quote the ATISN reference number above.
You also have the right to complain to the Information Commissioner. The Information Commissioner can be contacted at:
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire,SK9 5AF. However, please note that the Commissioner will not normally investigate a complaint until it has been through our own internal review process.
Engagement of Exemptions
When considering the release of information captured by a request we are required to consider the potential effects of disclosure of the information to the wider World. This is because information released in response to a FoI request is released to the World, not just to the person submitting the request. As such we need to take into account how any other individual may use, or misuse, the information if it is placed into the wider public domain. So whilst the request may have a legitimate, and benign, interest in accessing the requested information, we could conclude that the risk that the information could be misused by others is more compelling and thus the information should be withheld.
This Annex sets out the information you have requested and the corresponding reasons for the engagement of section 32 (court inquiry or arbitration records), section 35 , Information held by a government department or by the Welsh Assembly Government is exempt information if it relates to— (a) the formulation or development of government policy and section 41 (legal professional privilege) of the Freedom of Information Act 2000 (“the Act”) and where required, our subsequent consideration of the Public Interest Test.
- Request for The pre-action response letter on the Big Brother Watch Judicial Review dated 26 November 2021
I have concluded that the information requested is exempt from disclosure under section 32(1)(a) of the Act which states that –
32.—(1) Information held by a public authority is exempt information if it is held only by virtue of being contained in—
(a) any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter,
Guidance from the Information Commissioner (ICO) states the following with regard to section 32:
“We believe that section 32 was drafted to allow the courts to maintain judicial control over access to information about court proceedings. This includes giving courts control to decide what information can be disclosed without prejudicing those proceedings”.
The pre action response letter was filed and placed in the custody of the court solely for the purposes of the judicial review proceedings. The letter was created specifically for the purpose of those proceedings and therefore the information in it is held only by virtue of being contained in that document. On this basis, we have therefore concluded that Section 32(a) applies in relation to your request. Section 32 is an absolute exemption therefore there is no requirement to carry out a public interest test.
- Request for all ministerial submissions and appended documents along with internal impact assessments (if any exist) or equivalent documents prepared to support the proposed introduction of the COVID Pass scheme.
Section 35(1)(a) –
Section 35(1)(a) covers any information relating to the formulation or development of government policy. This exemption is only engaged by information being used in the formulation of government policy.
The information requested is information generated to inform the formulation of policies with regards to the covid pass and its interaction with its plans for mitigating the impact of covid on the people of Wales.
As with most of the policies and legislation relating to the Covid-19 pandemic, use of the covid pass is under constant review and has been revised regularly as circumstances change around the World and as the scientific and medical community learn more about this particular virus. As this is very much a “live” issue, weare of the view that the s35(1)(a) exemption is engaged by the information captured by this request.
Public interest arguments in favour of release
There is a very strong public interest in the public understanding the ongoing development of our policies to manage and control the current Covid-19 pandemic and the information underpinning those policies, particularly as there is much conflicting and sometimes completely wrong information being circulated on social media, etc. We also recognise the general public interest in making this information available for the sake of greater transparency and openness.
Public interest arguments in favour of withholding
We take the view that the section 35(1(a) is intended to ensure that the possibility of public exposure does not deter from full, candid and proper deliberation of policy formulation and development, including the exploration of all options.
The withheld information relates to papers associated with the production of cabinet papers on the Covid pass. The Welsh Government needs to be able to discuss recommendations and formulate new proposals with regards to dealing with the control of Covid-19 as well as considering future polices and plans as a result. At present, this is a fast paced environment and changes almost daily.
As part of the regulatory procedure, we are heavily reliant on Government officials being able to provide advice and exchange views in an open and frank way, exploring various options as part of the normal working process. This provides the Welsh Government with the space and freedom to hold such discussions and provide advice in the knowledge that if different outcomes or conclusions are finally agreed, these assessments will not have more far reaching implications than appropriate.
In addition, the disclosure of the information requested would have a prejudicial effect on engagement between Ministers and officials as it would remove the secure environment which allows Ministers to gather information from a variety of sources. Removing the secure environment in which officials are able to express views openly could result in advice being less robust as it would be likely to result in a reduction in the frankness and candour of those involved in the process if they believed discussions and other information would be made public.
In conclusion, I believe that it is within the wider public interest to withhold the information related to this request in order to provide the government with a safe space to consider and form policy and plans to manage the current pandemic and this information. The Welsh Government has endeavoured to ensure they are as transparent as possible, in particular through the media, publication of documents, Ministerial Written Statements and public statements in the Senedd along with ministerial press conferences and interviews. In so doing, we believe this public interest has been satisfied. Accordingly, the information requested has been withheld under section 35(1)(a) of the Act for the reasons set out above.
- You requested, the legal advice provided with regards to the pre-action response letter
Section 42 – Legal professional privilege
Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information.
Legal professional privilege (LPP) covers communications between lawyers and their clients for the purpose of obtaining legal advice, or documents created by or for lawyers for the “dominant” (main) purpose of litigation. The information in question was advice provided by the Welsh Government's legal services divisions and we believe that LPP attaches to this information.
The section 42 exemption is qualified, which means that it is subject to a public interest test. That there is a public interest served in public authorities being able to access advice which benefited from professional legal privilege was noted in Bellamy v the Information Commission and DTI [EA/2005/0023] in which the tribunal, on the subject of LPP said:
"there is a strong element of public interest inbuilt into the privilege itself. At least equally strong countervailing considerations would need to be adduced to override that inbuilt interest….it is important that public authorities be allowed to conduct a free exchange of views as to their legal rights and obligations with those advising them without fear of intrusion, save in the most clear case…’.
The Welsh Government is of the firm view that it is important to maintain legal professional privilege and that, in the absence of at least equally strong countervailing considerations, any attempt to undermine the principle of legal professional privilege would result in substantial harm.
Legal advisers need to be able to present the full picture to their clients, in this case all UK Government and devolved administrations, which includes arguments in support of final conclusions and any relevant counter-arguments. This is the purpose behind the long-established principle of legal professional privilege.
It is in the nature of legal advice that it often sets out the possible arguments both for and against a particular view. If recipients or providers of legal advice believe that it is likely that the legal advice would be published, especially so soon after being sought and in a complex political environment, then it is unlikely that comprehensive advice would be commissioned or provided. This would be likely to result in substantial harm to the quality of decision-making since it would not be fully informed. It would also undermine the ability of legal advisers and their clients to rely confidently on the protection afforded by the principle of legal professional privilege.
Moreover, disclosure of legal advice has a significant potential to prejudice the governments’ ability to defend its legal interests - both directly by unfairly exposing its legal position to challenge, and indirectly by diminishing the reliance it can place on the advice having been fully considered and presented without fear or favour.