S17 Notice under the Freedom of Information Act

Our ref: 1774

S17 Notice under the Freedom of Information Act 2000

WITHOLDING INFORMATION

Section 21(1) - Information accessible by other means

Transcripts of the open court judgements, which form part of the category B information, can be ordered from the Shorthand Writers of the Court concerned. They own the copyright and will charge a fee. You should contact the High Court by telephone and ask to be put through to the Shorthand Writers.

Section 32(1)(a) - Information held only by virtue of being contained in any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings

This exemption applies to information falling within both category A and category B. The information requested constitutes a record provided to the court. The court subsequently provided all the information to the Crown Prosecution Service (CPS). This is an absolute exemption so we are not required to apply the public interest test.

Section 44(1)(c) - Information the disclosure of which would constitute or be punishable as a contempt of court

This exemption applies to information falling within categories A, B and C with the exception of the open court judgements. Any disclosure of the information requested would constitute a contempt of court. The court has ordered that nothing is to be released publicly by order of the court while the enquiry is ongoing. This is an absolute exemption so we are not required to apply the public interest test.

Section 41(1) - Information provided in confidence

This applies to some of the information falling within category A. The parties involved in the proceedings would expect that any information they provide to the court would not be disclosed as a police enquiry is a possibility. We believe the information has the necessary quality of confidence because it is highly sensitive and not readily available by other means. We do not believe there is an overriding public interest in disclosing this information. A duty of confidence should not be overridden lightly. In this case there is a significant public interest in the administration of justice and this is heavily reliant on the ability of the relevant authorities to carry out a thorough investigation. This investigation would be prejudiced if the information requested were released into the public domain.

We therefore believe to disclose the information would constitute an actionable breach of confidence.

Section 23(1) - Information supplied by, or relating to, bodies dealing with security matters

Some of the information requested falling within categories A, B and C has been supplied by, or relates to, some of the bodies listed in section 23(3). This is an absolute exemption so we are not required to apply the public interest test.

Section 30 - Investigations and proceedings conducted by public authorities

We believe both sections 30(1)(b) and 30(1)(c) apply to information falling within categories A, B and C. This is a qualified exemption which means that the decision to disclose the requested material is subject to a public interest test. It may assist your understanding of the decision if the public interest factors taken into account are explained:

Public interest factors for disclosure

This case is of considerable public interest due to the serious nature of the allegations.
Release of this material would increase public understanding of the CPS decision making process.
Release would allow the public to assess the evidence in relation to this case.
Transparency may increase public confidence in the CPS and the prosecuting process.

Public interest factors against disclosure

There is a profound public interest in allegations being investigated by the Police and any resulting evidence being reviewed by the CPS. There is a proper investigative and judicial process for allegations of crime in the UK which would be undermined in this instance by premature publication under FOI.
There is a profound public interest in maintaining the confidentiality of communications within the criminal justice arena. Release of the requested information into the public domain would be likely to prejudice both this investigation and any potential prosecutions.
There is a clear need for good decision making and this needs to be based on the best advice available and a full consideration of all the options. The impact of disclosing material in relation to the case is likely to be prejudicial as officials within the criminal justice arena may feel hindered in the provision of advice if they believe that their communications may be published and released into the public domain.
Information falling within category A and the closed judgements in category B constitute legal documentation presented by Binyam Mohammed and his solicitors and the Government in the High Court. The material has been passed to the CPS for a specific purpose and with the expectation that it would not be prematurely released without that purpose being fulfilled (this is in addition to the exemptions under section 41 and section 44).

The strength of the public interest factors against disclosure is so great because they are so closely connected with, or are requirements for, the fair and effective administration of justice. On balance we consider the public interest arguments in favour of withholding the information outweigh those in favour of disclosing.

As the White Paper on Open Government explained:

“There should be no commitment to disclose information which would help potential lawbreakers and criminals put life, safety or the environment in danger. Investigations of suspected crime must normally be kept secret from the suspect and others. Witness statements, names and addresses of witnesses and reports from the police and others to prosecutors could, if disclosed other than as required by the courts, jeopardise law enforcement or the prevention or prosecution of crime, or be extremely unfair to a temporary suspect against whom (in the event) no real evidence existed. It is in the interests of both the individuals concerned and the integrity of the prosecution process that material relating to both live and completed prosecutions and to prosecutions which do not go ahead can be kept confidential”.

Section 27 - International relations

Sections 27(1)(a) and 27(2) apply to some of the information requested which falls within categories A, B and C. The information requested covers allegations relating to the conduct of other governments. The disclosure of this information would prejudice relations between the United Kingdom and these other governments. This is a qualified exemption which means that the decision to disclose the requested material is subject to a public interest test.

It may assist your understanding of the decision if the public interest factors taken into account are explained. The public interest factors in disclosure are the same as those listed above in relation to s30. However, there is a strong public interest in ensuring relations between the United Kingdom and other governments are not prejudiced. It is of vital importance that these relationships are strong and healthy in the fight against international crime and terrorism. Disclosure of this information could also have a negative impact on the United Kingdom's relations with other states in the future as states may become reluctant to share information with us if there is a concern that the information will be released into the public domain. On balance I consider the public interest arguments in favour of withholding the information outweigh those in favour of disclosing.

Section 35(1)(a) - Information relating to the formulation of government policy

This applies to information falling within category C. This is a qualified exemption which means that the decision to disclose the requested material is subject to a public interest test.

It may assist your understanding of the decision if the public interest factors taken into account are explained. The public interest factors in disclosure are the same as those listed above in relation to s30. The major public interest factor in withholding is in order to protect the privacy of the process of formulating government policy in order that the best possible policies are developed. If this kind of information were routinely released the result would be less candid and robust discussions about future policy. This would inevitably lead to policy decisions being made which are not based on all relevant facts and the result would be ineffective or flawed policies being implemented. The Attorney General, Director of Public Prosecutions and other officials must be able to discuss policy in relation to terrorism and the possible implications of this particular case. There is a very strong public interest in good policy making and therefore in protecting the privacy of discussions around policy formulation. For this reason we believe the public interest in withholding outweighs the public interest in disclosing.

Section 40(2) Personal Data Relating To Third Parties

We consider some information to be exempt under section 40(2). To release the information would breach the first data protection principle therefore the condition under section 40(3)(a) is satisfied. The first data protection principle states that:

Personal data shall be processed fairly and lawfully and not unless certain specified conditions are met.

In this instance the information was provided by individuals believing that it would be used for investigations into the allegations of possible wrongdoing. They would not have expected it to be released into the public domain due to the very sensitive nature of the allegations - the expectation would have been that their privacy would be protected in all circumstances. It would thus be unfair to release this information. This is an absolute exemption so we are not required to apply the public interest test.