FOI release

Response: Correspondence about the appointment of Emily Middleton

Published 24 September 2024

Reference number	FOI2024-00289
Date of request	27 August 2024
Date of response	24 September 2024
Outcome	Information partially disclosed

The Department for Science, Innovation and Technology (the department) received the following request for information which we responded to under the Freedom of Information Act 2000 (FOIA):

Please provide the following:

1. The exceptional appointment form submitted by DSIT to the Civil Service Commission.

2. Any accompanying correspondence between the Permanent Secretary’s Office or HR or The Secretary of State’s Private Office and the Civil Service Commission.

3. Correspondence relating to Emily Middleton between the Permanent Secretary’s Office and the Cabinet Office’s Propriety & Ethics / Propriety & Constitution Group.

4. Correspondence between the Secretary of State’s private office and the Permanent Secretary’s office relating to the appointment of Emily Middleton.

Please note all files or correspondence would be between 1 June 2024 and today.

Our response

We can confirm that the Department for Science, Innovation and Technology (the department) does hold information in scope of your request which is set out below.

1. For your request for “the exceptional appointment form submitted by DSIT to the Civil Service Commission” please see Annex A.

2. For your request for “any accompanying correspondence between the Permanent Secretary’s Office or HR or The Secretary of State’s Private Office and the Civil Service Commission” please see Annexes B and C.

3. For your request for “correspondence relating to Emily Middleton between the Permanent Secretary’s Office and the Cabinet Office’s Propriety & Ethics / Propriety & Constitution Group” please see Annex D.

4. For your request for “correspondence between the secretary of states private office and the permanent secretary office relating to the appointment of Emily Middleton” please see Annexes E, F, and G.

Section 36: Prejudice to the effective conduct of public affairs

We have identified various emails involving officials in the press office about responding to the media interest in the appointment of Emily Middleton which we consider to be exempt from disclosure under section 36 of the FOIA. Section 36 states:

(2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act-

(b) would, or would be likely to, inhibit (i) the free and frank provision of advice, or (ii) the free and frank exchange of views for the purposes of deliberation, or

In the reasonable opinion of the qualified person, the information you have requested falls into the category described in Section 36(2)(b)(ii) and would inhibit the free and frank exchange of views for the purposes of deliberation. Section 36 is a qualified exemption. With this in mind, we have considered the public interest for and against disclosure.

In this case the public interest factors which favour disclosing the information are:

• There is a public interest in the Department for Science, Innovation and Technology (the department) being open and transparent. This allows ministers and officials to be held to account for their actions and decisions, allows the public to understand the work of the department and safeguards the democratic process.

• There is a public interest in understanding the way in which appointments by exception to the Civil Service are made by government departments and their officials.

The factors against are:

• There is a public interest in the department being able to communicate messages to the public clearly without the risk of our final public messaging being confused by the disclosure of records relating to any internal deliberation through which those messages were finalised.

• There is a public interest in protecting the ability of staff to share partially formed ideas and to explore riskier options in a safe space when providing advice or giving their views on how the department can respond to matters of live media interest. This will allow the fullest range of views to be considered before a decision is made and for poor or inaccurate communication to be effectively challenged, resulting in clear and informed communications from the department to the media and general public alike.

Having considered these factors, we are satisfied that the balance of the public interest falls in favour of withholding the information to protect the safe space needed by our officials to prepare clear, accurate and effective communications to the media and the general public.

Section 40(2): Personal data of third parties

Some of the information you have requested is exempt from disclosure under section 40(2) because of the condition at section 40(3A) of the FOIA.

Section 40(2) and (40(3A) state:

(2) Any information to which a request for information relates is also exempt information if-

(a) it constitutes personal data which does not fall within subsection (1), and

(b) the first, second or third condition below is satisfied.

(3A) The first condition is that the disclosure of the information to a member of the public otherwise than under this Act-

(a) would contravene any of the data protection principles, or

(b) would do so if the exemptions in section 24(1) of the Data Protection Act 2018 (manual unstructured data held by public authorities) were disregarded.

The department has obligations under data protection legislation, and in law generally, to protect personal data. This exempts personal data from release if disclosure would contravene any of the data protection principles in Article 5(1) of the UK General Data Protection Regulation and section 34(1) of the Data Protection Act 2018. Release would breach the first data protection principle since it would be unlawful and unfair to disclose the information.

As section 40 is an absolute exemption, the department is not required to carry out a public interest test.