US Information on Guantanamo Detainee to be Kept Secret

Posted on | by Anya Proops KC

In a ruling handed down yesterday, the High Court relucantly held that US documents containing information relating to the treatment of Binyam Mohamed, the last recognised British resident to be held in Guantanamo Bay, should be with withheld from publication (Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 152 (Admin); 11KBW’s Karen Steyn appeared on behalf of the Secretary of State). The case is a highly sensitive one as Mr Mohamed alleges that evidence allegedly implicating him in terrorist activity was obtained as a result of torture. It is his position that the withheld information would suport his case on this issue. The Court based its ruling on a statement made by the Foreign Secretary, David Miliband, to the effect that disclosure of the information would pose a risk to intelligence co-operation from the US if it was published and would, as a result, put the UK general public at risk. The judges (Thomas LJ and Lloyd Jones J) made clear in the ruling that they had serious concerns about the position that the goverment was adopting on the question of whether the information should be published, not least because, in their view, the information in question could not itself possibly be described as sensitive US intelligence. However, they went on to conclude that they had no alternative but to refuse publication in light of Mr Miliband’s statement. Notably, Clive Stafford Smith, who represents Mr Mohammed has commented that the judgment is in fact ‘canny’ because: ‘If the judges had ordered the material to be revealed, over the government’s objection, there would have been a protracted appeal and nobody would have learned anything for months or years. Instead, they have placed both the British government and the Obama administration in the immediate and uncomfortable position of having to confess whether they want to cover up evidence of torture.’  In a statement, the White House thanked the UK government ‘for its continued commitment to protect sensitive national security information’. In a statement made in Parliament today, Mr Miliband asserted that the question whether this information should be made public was a decision which only the US could take and that the UK ought not to interfere with those decisions. The ruling highlights the particular difficulties which courts face when dealing with applications for disclosure of information in the face of Government assertions that disclosure will damage national security.

The judgment:

https://www.11kbw.com/judgments/docs/BinyamMohamedvForeignSecretary.pdf

Media coverage

https://news.bbc.co.uk/1/hi/uk_politics/7871226.stm

https://www.guardian.co.uk/world/2009/feb/04/guantanamo-bay-torture

Commentary by Clive Stafford Smith

https://www.guardian.co.uk/commentisfree/2009/feb/05/guantanamo-torture

Proposal to Halve Thirty Year Rule

Posted on | by Anya Proops KC

An official Committee headed by Paul Dacre (editor of the Daily Mail) has this week published its report on the 30 year rule. The phrase ‘30 year rule’ is commonly used to describe the point at which records created by government departments are transferred to the National Archives, and at which most of these records are released to the public. The rule must be seen as working in tandem with FOIA. Thus, many of the exemptions afforded under Part II FOIA are automatically disapplied if the information which has been requested is more than 30 years old (see further sections 62 and 63 FOIA). The Committee concluded that the 30 year rule, which was introduced by Harold Wilson’s government, is ‘anachronistic and unsustainable’ (para. 6.1 of the report). It proposes that the thirty year rule be halved to 15 years. The move to a 15 year rule, which the Committee recommends should be phased in over a period of time, would require amendments of the provisions in FOIA which deal with historical records, namely sections 62 and 63 FOIA and also of the Public Records Act 1958.

Other notable features of the report include the following:

  • On the subject of civil servants’ attitude to FOIA, the Committee noted that concerns had been expressed by both retired civil servants and those in post that early disclosure of official records may in some circumstances have a deletorious, ‘chilling’ effect on the civil service and the operation of government more generally (see paras. 5.15-5.19). However, the Committee also concluded that: ‘Most [civil servants] have come to terms with the new FoI regime, and some argue that the prospect of early scrutiny concentrates the mandarin mind, and thus produces better argued papers and fuller record-keeping’ (see para. 5.20; see also paras. 6.6 and 6.7).  This conclusion should be compared with the position which the Government has adopted in a number of Information Tribunal cases, where concerns have been expressed that disclosure under FOIA of particular information would be likely to have a chilling effect on the activities civil servants (see further Department for Education and Skills v Information Commissioner, Department for Work and Pensions v Information Commissioner and Office of Government Commerce v Information Commissioner and O’Brien v Information Commissioner and Department for Business and Regulatory Reform).
  • In view of concerns which had been expressed about the effects of FOIA on civil servant record keeping, the Committee recommended that the Civil Service Code be revisited with a view to seeing whether it needs to be amended to include an explicit injunction to keep full, accurate and impartial records of government business (para. 8.4).
  • To avoid civil servants being unfairly criticised while they are still in post, the Committee recommended that, wherever possible, information identifying civil servants should be redacted in any disclosed records (para. 8.6).
  • The Committee also suggested that the 15 year rule may require a re-think on the approach to the disclosure of sensitive information under FOIA (para. 8.7).
  • The Committee recommended that non-political records kept by special advisors should not be exempt from disclosure under the Public Records Act or FOIA (para. 8.10).
  • It is worth noting the Committee’s analysis of the more liberal approach to the disclosure of official records which has been adopted in other countries (see para. 3.18).

The Committee’s report:

https://www2.nationalarchives.gov.uk/30yrr/30-year-rule-report.pdf

Tribunal decisions on ‘chilling effect’:

https://www.informationtribunal.gov.uk/Documents/decisions
/DeptEdandSkillsVInfoCommandTheEveningStandard19Feb07.pdf

https://www.informationtribunal.gov.uk/Documents/decisions
/DeptforWork_PensionsVInfoComm5Mar07.pdf

https://www.informationtribunal.gov.uk/Documents/decisions
/office_of_govern_commerce_v_infocomm%20_2May07.pdf

https://www.informationtribunal.gov.uk/DBFiles/Decision/i258/
O’Brien%20v%20ICO%20(EA-2008-0011%20%5BFS50082127%5D)
%20Decision%2007-10-08.pdf

Appeal in Data Sharing Case

Posted on | by Anya Proops KC

The Information Tribunal has been seized by an appeal against a decision of the Information Commissioner in a case on data sharing. The Appellant requested information from the Cabinet Office relating to a Cabinet Committee which had been set up to consider data sharing in the public sector. The Cabinet Office disclosed some information. However, it refused to disclose minutes of the Committee’s meetings on the basis that they were exempt from disclosure under section 35 FOIA (policy exemption). The Cabinet Office also refused to disclose the names of junior civil servants who attended the meeting on the basis that this information was exempt under section 40(2) FOIA. The Commissioner held that that the Cabinet Office’s refusal to disclose the minutes was lawful. The Appellant is now appealing the Commissioner’s decision to the Tribunal.

Information Commissioner’s Decision Notice:

https://www.ico.gov.uk/upload/documents/decisionnotices/2008/fs_50177136.pdf

Closed Sessions in High Court Appeals

Posted on | by Anya Proops KC

Last week the High Court heard an appeal brought by the Government against the decision of the Information Tribunal in O’Brien v Information Commissioner & Department for Business Enterprise and Regulatory Reform. The appeal concerned, in particular, whether the Tribunal had erred when applying the public interest test in the context of the exemptions afforded under section 35 (policy development) and section 42 (legal privilege) FOIA. During the course of the appeal, questions where raised by the Respondent (Mr O’Brien) as to whether the Court had jurisdiction to consider: (a) an annex to the decision which the Tribunal had stated should remain confidential to the Commissioner and BERR, pending any further appeal; and (b) the disputed information which had been withheld by BERR. It was argued on behalf of the Commissioner: (a) that the Court had jurisdiction to consider the confidential annex as that annex clearly formed part of the decision which was being appealed; and (b) that the Court had power to consider the disputed information in closed session pursuant to CPR 52.10(1). In summary, CPR 52.10(1) affords the court all the powers of the lower tribunal which is being appealed from, subject to any enactment which precludes the court enjoying such powers.  A judgment on the appeal is awaited.

Tribunal decision:

https://www.informationtribunal.gov.uk/DBFiles/Decision/i258/O’Brien%20v%20ICO%20(EA-2008-0011%20%5BFS50082127%5D)%20Decision%2007-10-08.pdf

Government Appeals in Meta Request Case

Posted on | by Anya Proops KC

In Home Office & Ministry of Justice v Information Commissioner, the Information Tribunal was called upon to decide the novel question whether information about internal FOIA processes operated by public authorities was itself susceptible to disclosure under FOIA. The information in issue in the case related to some 48 requests which had been made by or on behalf of a particular media organisation. The Government sought to argue before the Tribunal that it was lawfully entitled to withhold the requested information on the basis that  it was exempt under section 36 FOIA (prejudice to conduct of public affairs). In a robust decision, the Tribunal rejected the Government’s appeal. It found that the information was not exempt under section 36. It also found that the Government had erred by treating the requested information, in effect, as a special class of information which was less susceptible to disclosure under FOIA than other types of information. The Government is now appealing the decision to the High Court.

Tribunal Decision:

https://www.11kbw.com/judgments/docs/HomeOfficeMoJvIC.pdf

Legal Week Article:

https://www.legalweek.com/Navigation/32/Articles/1197080/Freedom+of+Information+Act+Under+orders+to+disclose.html

Government Superdatabase

Posted on | by Anya Proops KC

Over the last few months, there has been considerable media coverage of Government plans to introduce a new ‘superdatabase’ designed to track all internet and telephone use. The stated purpose of the database is to assist law enforcement agencies by facilitating access to information currently held by individual Telecoms companies. It is expected that the Government will publish its detailed proposals later on this month. However, the new Director of Public Prosecutions, Kier Starmer QC has already expressed the view that, provided that proper safeguards are put in place, the database would be legitimate. Mr Starmer’s assessment contrasts starkly with that of his predecessor, Sir Ken MacDonald, who expressed the view that the database would create a ‘hell-house’ of personal privae information. The Information Commissioner has previously warned that the creation of such a database would raise serious data protection concerns (see his 15 July 2008 Press Release).

Draft Communications Data Bill:

https://www.commonsleader.gov.uk/output/Page2461.asp

Information Commissioner’s Press Release

https://www.ico.gov.uk/upload/documents/pressreleases/2008/annual_report_web_version.pdf