8 February 2022
Thank you for your request which I received on 11 January 2022. You asked the following:
In order for you to comply with The Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) (No. 23) Regulations 2021, please provide all documentation (such as internal emails, or letters issued to cabinet members) as to why it is not reasonably practicable for your cabinet members to work from the place where they are living. Please also provide your assessment as to why it is not possible for cabinet members to hold press conferences from the place where they are living.
The broadcasting of a Welsh Government media briefing requires a significant amount of specialist fixed equipment and personnel – (including 5 or so TV cameras, a hard-wired fibre connection into the PSBA for social media broadcasting, a TV camera operator, sound engineer, British Sign Language interpreter and a satellite truck for live TV broadcast). The Welsh Government media briefing room at Cathays Park has been equipped to provide these facilities which would not be available to Minsters from their homes.
Please also provide the health and safety risk assessment for employees and cabinet members working in your offices which has been reviewed as a consequence of the Level 2 restrictions that came into effect on the 26th December 2021.
Please see accompanying document. It has also been the case that the work from home message for staff has been re-enforced since the alert level was raised in December 2021. I have however, concluded that some information is exempt from disclosure under Section 40(2) of the Freedom of Information Act 2000. I have set out the reasons for withholding some information at Annex 1 to this letter.
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
or e-mail: Freedom.email@example.com
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
Telephone: 0303 123 1113
However, please note that the Commissioner will not normally investigate a complaint until it has been through our own internal review process.
Section 40(2) – Personal Data
Section 40(2) of the Freedom of Information Act 2000 (FOIA), together with the conditions in section 40(3)(a)(i) or 40(3)(b), provides an absolute exemption if disclosure of the personal data would breach any of the data protection principles.
‘Personal data’ is defined in sections 3(2) and (3) of the Data Protection Act 1998 (‘the DPA 2018’) and means any information relating to an identified or identifiable living individual. An identifiable living individual is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual. I have concluded that this relates to the names of those identified in the risk assessment document.
Under Section 40(2) of the FOIA, personal data is exempt from release if disclosure would breach one of the data protection principles set out in Article 5 of the GDPR. We consider the principle being most relevant in this instance as being the first. This states that personal data must be:
“processed lawfully, fairly and in a transparent manner in relation to the data subject”
The lawful basis that is most relevant in relation to a request for information under the FOIA is Article 6(1)(f). This states:
“processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child”.
In considering the application of Article 6(1)(f) in the context of a request for information under FOIA it is necessary to consider the following three-part test:
- The Legitimate interest test: Whether a legitimate interest is being pursued in the request for information;
- The Necessity test: Whether disclosure of the information/confirmation or denial that it is held is necessary to meet the legitimate interest in question;
- The Balancing test: Whether the above interests override the interests, fundamental rights and freedoms of the data subject.
Our consideration of these tests is set out below:
1. Legitimate Interest Test
The Welsh Government recognises there is a legitimate interest in being able to identify individuals involved in decision making or an area of business. We do not believe, however, there is any legitimate reason in this instance why the personal data would need to be released in order to understand the information within the risk assessment document. The Welsh Government cannot identify any other legitimate interest in you or the public receiving the personal data captured by your request.
2. Is disclosure necessary?
The Welsh Government is of the view that it is not necessary to disclose personal information caught by your request - we do not believe it is necessary to disclose the personal data to understand the wider risk assessment information.
3. The Balancing Test
As it has been concluded it is not necessary to disclose the personal information caught by the request, there is no requirement to balance the rights and interests of those individuals against the rights, under FOIA, of the requester.
To conclude, as release of the information would not be legitimate under Article 6(1)(f), and as no other condition of Article 6 is deemed to apply, release of the information would not be lawful within the meaning of the first data protection principle. It has therefore been withheld under section 40 of the Freedom of Information Act. Section 40 is an absolute exemption and not subject to the public interest test.