Information Rights ~ Secrecy ~ an interesting case in the pipeline

The expansion of secrecy in the courts:

The Joint Committee on Human Rights 16th report refers to there being 21 areas where special advocates could be used.   Para 58 of the 16th report stated:

"The Government replied that it was difficult to provide a comprehensive list of all the contexts in which closed material (as it prefers to call secret evidence) and special advocates are used, because in addition to the contexts in which the use of special advocates is provided for by legislation, the courts have an inherent jurisdiction to request that the relevant law officer consider appointing special advocates if they should become necessary in a particular case where there is no such express provision.  However, the Government provided a list of 21 different contexts in which it was "aware" that special advocates have been or may be used. In subsequent written answers to questions asked by our Chair, the Solicitor General confirmed that special advocates had been used in 14 of the 21 contexts identified in the Government's response to our inquiry.  However, in a further written answer she declined to say in how many cases in each of these contexts special advocates were used, on the basis that this information is not recorded centrally and could only be obtained at disproportionate cost."

This extract
from the 16th Report - published in March 2010 - is one example of how far secrecy has become embedded in our system of supposedly open justice.  The government's Justice and Security Bill - now wending its way through Parliament - will extend "closed material procedure" to certain civil cases before the courts where a question of national security is involved.

Information Commissioner Decision Notice with confidential annex:

Secrecy manifests itself in many ways.

Another example appears in a recent Decision Notice of the Information Commissioner - read Notice FS50456429 .  The Decision Notice is concerned with a "freedom of information" request made to Greater Manchester Police (GMP) by Mr Miguel Cubells.  Mr Cubells asked GMP to provide certain information concerning an investigation into his mother's death.

 A couple of points are of particular interest here.

1.  In general, under section1 of the Freedom of Information Act 2000 (FOIA), public authorities are under a duty to confirm or deny whether they hold information requested.  If they have the information requested then, as a basic position, they should state that they have it.  If they do not have it then, again, they should say so.  Where the public authority has the information requested then, again as a basic position, it should be disclosed.
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This rosy picture soon frosts over when the detail of the FOIA is considered since there are various grounds in the Act on which a public authority may claim to be able to withhold information.  The exemptions (FOIA 2000 Part II) are particularly important since. where an exemption applies, it is usually the case that the duty to confirm or deny is removed and so the public authority may then opt to neither confirm nor deny the presence of the information.

I some instances it may make good sense to do this.  For example, a police force may hold information regarding particular properties they have under surveillance.  It is likely that if a request were made for information about the surveillance of a certain property, this information would be exempt under section 30 (investigations and proceedings conducted by public authorities). A public authority could therefore refuse to confirm or deny whether it holds information about a property under surveillance.

In Mr Cubells' case, the GMP refused to neither confirm nor deny - ( NCND response).  They based this on section 30 (Investigations and proceedings conducted by public authorities) of the FOIA 2000.  Mr Cubells asked the Information Commissioner to consider the case and the Commissioner upheld the position of the Police.

2.  The Decision Notice issued by the Information Commissioner sets out the reasons for upholding the position of GMP.  However, paragraph 28 of the Decision Notice indicates that there is a confidential annex revealed only to the GMP.  Para. 28 states:

"In correspondence with the Commissioner, GMP provided further explanation in support of its refusal to confirm or deny whether the requested information is held. Details of those arguments can be found in the Confidential Annex to this decision notice which will be provided to the public authority only. In summary, they relate to the public interest in protecting the investigative process."

Mr Cubells is therefore in the position of not knowing the full and exact reasons for the GMP's stance and, it seems clear enough, that the Commissioner was influenced in some way by the confidential material.

The matter is to be heard, on appeal from the Commissioner, by the First Tier Tribunal (Information Rights) - formerly the Information Tribunal.  The outcome is awaited with interest.  It is understood that the Tribunal has requested copies of the confidential annex. 

The Tribunal - some general points:

The current structure of tribunals may be seen via the Ministry of Justice website.  The role of the First tier Tribunal (Information Rights) is amplified here.

The First Tier Tribunal (Information Rights) is part of the First Tier Tribunal's General Regulatory Chamber and procedure at the Tribunal is governed by the Tribunal Procedure (First Tier Tribunal) (General Regulatory Chamber) Rules 2009.  The Rules are aimed at enabling the tribunal to determine cases fairly and justly.  Parties to cases must pay particular attention to these procedural rules.

Appeals - on points of law - go from the First-Tier Tribunal to the Upper Tribunal.  Further appeals, to the Court of Appeal (Civil Division) and Supreme Court, are possible.

Other:

A leading text is The law of Freedom of Information - Oxford University Press - eds. John Macdonal QC, Ross Crail and Clive Jones

Information Commissioner's Office