Information Commissioner's Office

Ministry of Defence

25 February 2008, Central government

The complainant asked MOD for details of the advice given to its Minister about the Minister’s powers to stop-up existing rights of way and to create replacements. MOD refused to provide the information, citing the exemptions in sections 35(1)(a) and 42(1) of the Act. At review stage MOD withdrew its reliance on section 35 and substituted section 36(2)(b)(i), although it later reverted to section 35. The Commissioner has decided that the exemption in section 42(1) is engaged in relation to some of the information in the submissions to the Minister and that, in all the circumstances of this case, the public interest in maintaining the exemption outweighs the public interest in disclosing that information. As regards the remaining information, the Commissioner decided that MOD had misapplied section 35(1)(a) but that the exemption in section 36(2)(b) was engaged and that the public interest in maintaining the exemption outweighed the public interest in disclosing that information at the time the request was made.

FOI 35: Upheld