Dear Mr Bimmler,

Thank you for your e-mail dated 11 May 2009 in which you ask for documents relating to the Binyam Mohamed Judicial Review proceedings, as mentioned in the Written Ministerial Statement laid by the Attorney General on the 26^th of March 2009. You also asked for an outline or index of files relevant to the Binyam Mohamed investigation. Your request has been handled in accordance with the Freedom of Information Act 2000.

Firstly, regarding your request for an outline or index of files, I am pleased to disclose this information to you. This is attached at Annex A. I have chosen to address this first as it may help you to use this index when considering the rest of my response since I will be referring to the documents by class reflecting the way in which they are set on in the index.

With regards to all of the information listed under “claimant's evidence”, “defendant's evidence” and “submissions” (the latter being produced by both the claimants, the defendants and the special advocates), I can confirm the Home Office does hold information relevant to your request. However, with the exception of the closed exhibits of Witness A, this information is exempt from the FOI disclosure obligation due to section 32(1) (a) and (b) of the FOI Act - documents filed with a court, or served upon, or by, a public authority.

With regards to the closed exhibits of Witness A, I can confirm the Home Office does hold this information. However, it is exempt from the FOI disclosure obligation due to section 23(1) of the FOI Act - information directly or indirectly supplied by the Security Service.

Regarding the information listed under “Public Interest Immunity certificates” I am pleased to disclose the certificates of the Home Secretary and the Foreign Secretary to you. With regards to the sensitive schedules to these certificates, I can confirm that the Home Office does hold these documents but that they are exempt from disclosure due to sections 23 (1), 24(1) and 32(1)(a) of the FOI Act - information from bodies dealing with security matters, national security and court records (as above). Section 24 is a qualified exemption requiring consideration of the public interest (although the absolute exemptions in section 23 and 32 operate to make this consideration largely nugatory). However, for completeness our reasoning for its application in this case can be found at Annex B.

With regards to the open judgments listed under “court judgments” and the open transcript of Witness B's evidence listed under “court transcripts”, I can confirm the Home Office does hold information relevant to your request. However, due to section 21(1) of the FOI Act, this information is exempt from the FOI disclosure obligation as it is accessible to you by other means. A link to the website of the Royal Courts of Justice where these judgments and the transcript are available is included at Annex B.

With regards to the closed judgments and the closed transcripts I can confirm the Home Office does hold information relevant to your request. However, this information is exempt from the FOI disclosure obligation due to section 32(1) (c) of the FOI Act - any document created by a court.

If you are dissatisfied with this response you may request an independent internal review of our handling of your request by submitting your complaint within two months to the below address quoting reference 11925.

Information Rights Team
Information and Record Management Service
Home Office
4th Floor, Seacole Building
2 Marsham Street
London
SW1P 4DF

Email: [email address]

During the independent review the department's handling of your information request will be reassessed by staff who were not involved in providing you with this response. Should you remain dissatisfied after this internal review, you will have a right of complaint to the Information Commissioner as established by section 50 of the Freedom of Information Act.

Yours sincerely,

T Fisher

Annex A

Section 21 of the Freedom of Information Act states:

(1) Information which is reasonably accessible to the applicant otherwise than under section 1 is exempt information.

(2) For the purposes of subsection (1)—

(a) information may be reasonably accessible to the applicant even though it is accessible only on payment, and

(b) information is to be taken to be reasonably accessible to the applicant if it is information which the public authority or any other person is obliged by or under any enactment to communicate (otherwise than by making the information available for inspection) to members of the public on request, whether free of charge or on payment.

Section 23 of the Freedom of Information Act states:

(1) Information held by a public authority is exempt information if it was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).

24 National security

(1) Information which does not fall within section 23(1) is exempt information if exemption from section 1(1)(b) is required for the purpose of safeguarding national security.

Section 24 of the Freedom of Information Act states:

(1) Information which does not fall within section 23(1) is exempt information if exemption from section 1(1)(b) is required for the purpose of safeguarding national security.

(2) The duty to confirm or deny does not arise if, or to the extent that, exemption from section 1(1)(a) is required for the purpose of safeguarding national security.

(3) A certificate signed by a Minister of the Crown certifying that exemption from section 1(1)(b), or from section 1(1)(a) and (b), is, or at any time was, required for the purpose of safeguarding national security shall, subject to section 60, be conclusive evidence of that fact.

(4) A certificate under subsection (3) may identify the information to which it applies by means of a general description and may be expressed to have prospective effect.

Section 32 of the Freedom of Information Act states:

(1) Information held by a public authority is exempt information if it is held only by virtue of being contained in—

(a) any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter,

(b) any document served upon, or by, a public authority for the purposes of proceedings in a particular cause or matter, or

(c) any document created by—

(i) a court, or

(ii) a member of the administrative staff of a court,

for the purposes of proceedings in a particular cause or matter.

Annex B

Royal Courts of Justice Website

The open judgements of the divisional court and the open transcript of evidence given by Witness B can be accessed here: http://www.judiciary.gov.uk/judgment_guidance/judgments/mohamed210808.htm

Section 24 Public Interest Test

The disclosure of these sensitive schedules could have a negative impact on national security, in which there is a very high public interest in maintaining. This is due to a number of reasons including, the protection of the anonymity of security service personnel, the protection of the secrecy in which our security and intelligence agencies rely on to be effective and the protection of our international intelligence sharing relationships, this being the very subject of the Court case that these PII certificates were created for. Unfortunately, due to the nature of these sensitive schedules, I cannot go into more detail as to the reasons for this negative impact.

There is also a high public interest in disclosure and transparency in these matters in order to assure the public, however, these certificates have already been made available to the Court in closed proceedings, and to the Metropolitan Police as part of their investigation in order to determine any criminal wrongdoing.

Taking into account these factors I have determined that the public interest in maintaining national security outweighs the public interest in disclosure in this case.