30 October 2009 (date)

Reference: 09/75

Dear Mr Reith

I am writing to you about your refined request for information dated 20 March relating to the suspension of John Stalker and his removal from the Stalker-Sampson inquiry. You requested:

“copies of correspondence, documents, memos etc held by the NIO in relation to the suspension of the former Deputy Chief Constable of Greater Manchester Police John Stalker from duty in 1986 and his removal from the Stalker-Sampson inquiry in Northern Ireland that cover the period 1986-87.”

We informed you that we have interpreted this request as only covering material dated within that two-year range. We have also written to you on a number of occasions explaining that the NIO was considering the potential application of a number of exemptions to information relevant to your request where public interest balancing tests were required. We extended the deadline for reply until 30 October 2009. I am sorry for the time it has taken to respond. This is because the NIO holds a significant volume of information relevant to your request and it was necessary to consider each document individually before taking any final decisions on release.

Please find enclosed with this letter the information that can be released under the Freedom of Information Act. In most cases we have provided you with copies of the original documents, redacting information not relevant to your request or covered by the one of the exemptions set out below. In cases where the relevant information consisted of only a small portion of the document we have produce typed extracts of that information.

Some of the information that you have requested is exempt from disclosure under sections 23 (information supplied by, or relating to, bodies dealing with security matters), 24 (National Security), 31 (law enforcement), 35 (provision of advice by the Law Officers), 36 (prejudice to the conduct of public affairs), and 40 (personal information).

The exemptions outline in sections 24, 31, 35 and 36 are subject to public interest balancing test where we are required to consider each exemption in turn and determine whether the public interest in withholding the information outweighs the public interest in disclosure. In the following paragraphs we have set out each exemption, the factors considered as part of the balancing exercise and our conclusion on the application of the exemption.

Section 23

We have determined that the exemption provided in section 23(1) applies to certain information which we hold relevant to your request. This exemption is absolute and therefore we are withholding this information on the grounds that it directly or indirectly relates to, or was supplied to the NIO by, bodies dealing with security matters.

Section 24

We have determined that the exemption provided in s24(1), which concerns national security, applies to information contained in a small number of documents relevant to your request.

In favour of release:

There is a general public interest in increasing the public's knowledge and understanding of how Government and law enforcement bodies such as the police operate. Releasing such information demonstrates transparency and accountability on the part of Government and its agencies which in turn encourages public trust in institutions. It also provides opportunities to scrutinise Government and police actions or policies. The public also have an interest in understanding more about the removal and suspension of Mr Stalker, given that he was a senior public figure at that time.

In favour of withholding:

It is clearly in the public interest to prevent harm or avoid the risk of harm (both to individuals and the State more widely) that might result from disclosing material which is a matter of national security. If this information was disclosed it could risk compromising current police operational techniques and potentially individuals. It might also provide valuable information to other criminals.

Conclusion

We have determined that on balance the public interest in retaining the information outweighs that of release.

Section 31

In relation to the exemptions provided in sections 31(1)(a) (the prevention and detection of crime), 31(1)(b) (the apprehension or prosecution of offenders) and 31(1)(c) the administration of justice) we have determined that they apply to information in a small number of documents relevant to your request.

Factors in favour of release:

Given the senior office held by Mr Stalker at the time the public have an interest in learning more about his suspension and removal from office. The public also have an interest in being kept informed about the ways in which the police carry out their responsibilities. For example there is a general public interest in demonstrating the robustness with which law enforcement agencies conduct investigations which may go towards maintaining public confidence in law enforcement and the criminal justice system. Disclosure of this information would also demonstrate the accountability of those agencies and Government and ensure that their processes and procedures are as transparent as possible.

Factors in favour of withholding:

Disclosure of information relating to the suspension and removal of Mr Stalker from office may prejudice any future proceedings (whether criminal, civil or otherwise) that might be linked to this case - even given the passage of time further proceedings cannot be ruled out. Thus releasing the information could undermine the possibility of the apprehension or prosecution of offender and the administration of justice. The information relates to material gathered by the police in the course of an investigation. Disclosure may compromise future police investigations, either relating to a matter connected to this case, or more generally by revealing details about police strategies and tactics in seeking to prevent and detect crime, or operational policies and procedures. This type of information may provide valuable information to other criminals.

Conclusion

We have determined that on balance the public interest in retaining the information outweighs that of release.

Section 35

In relation to the exemptions provide in sections 35(1)(b) (Ministerial communications) and 35(1)(c) (provision of advice by the Law Officers) we have determined that they apply to information in a small number of documents relevant to your request.

In favour of release:

There is a general public interest in disclosure, it ensures greater transparency and accountability on the part of Government and also increases the public's knowledge and understanding of how Government works. The public also have an interest in ensuring that decisions have been made on the basis of good quality legal advice. The decisions that Ministers make, particularly in deciding on how to respond to sensitive issues such as the suspension and removal of a senior police officer from office, and how they reach those decisions are of significant interest to the public.

In favour of withholding:

There is a strong public interest in the Government receiving frank and confidential advice from its principal legal adviser without fear that it will be disclosed. Similarly if Ministers feel inhibited from being frank and candid with one another because of the risk of subsequent disclosure the quality of the debate lying behind collective decisions may be diminished.

Conclusion:

We have determined that on balance the public interest in retaining the information outweighs that of release.

Section 36

In relation to the exemptions provided in sections 36(2)(b)(i) (free and frank provision of advice), 36(2)(b)(ii) (free and frank exchange of views for the purposes of deliberation) and 36(2)(c) ( prejudice to the conduct of public affairs), the qualified person has considered the application of s.36 and is of the opinion that these exemptions apply to some of the information.

In favour of release:

There is a general public interest in being able to understand more about the deliberative and decision making processes of Government. The public will also want to be reassured that appropriate advice was sought to allow a decision to be reached based on the best advice and options available. The Stalker case has a very high profile in Northern Ireland and the public will have an interest in knowing that such sensitive issues are handled appropriately and at a sufficiently senior level. Release would also show how officials interact with each other and the range of advice and views provided.

In favour of withholding:

It is in the public interest in ensuring that there is a space within which Ministers and officials are able to discuss policy options freely and frankly. Discussions about the suspension and removal of Mr Stalker contain in some cases a candid exchange of views. Knowing that such discussions or advice might be made public could inhibit officials from being free and frank in their advice or opinions. It might distort or restrain discussion of sensitive issues such as the Stalker case, which in turn might weaken the effectiveness of the advice to Ministers, or make it less likely that such information was not properly recorded in the future. Ministers and officials need to be able to think through all the implications of various policy options - in particular they need to be able to undertake rigorous and candid assessments of the risks associated with certain issues - such as the impact of a senior police officer being suspended and removed from duty when that officer has responsibility for a high profile investigation.

A small amount of the information requested is draft material. As such it is deliberative and subject to change. To release this information may be misleading about the Government's eventual position on issues arising from the removal and suspension of Mr Stalker.

Conclusion

We have determined that on balance the public interest in retaining the information outweighs that of release. The application of section 36 has been approved by a qualified person.

Section 40

Some of the information you have requested contains sensitive personal data relating to individuals, the release of which would be in breach of the first principle of the Data Protection Act 1998, fair and lawful processing.

Names of officials

Names of junior officials have been redacted from the documents supplied to you as we do not consider that they fall within the scope of your request.

The information supplied to you continues to be protected by the Copyright, Designs and Patents Act 1988. You are free to use it for your own purposes, including any non-commercial research you are doing and for the purposes of news reporting. Any other re-use, for example commercial publication, would require the permission of the copyright holder. Most documents supplied by the Northern Ireland Office will have been produced by government officials and will be Crown Copyright. You can find details on the arrangements for re-using Crown Copyright on HMS Online at:

http://www.hmso.gov.uk/copyright/licenses/click-use-home.htm

Information you receive which is not subject to Crown Copyright continues to be protected by the copyright of the person, or organisation, from which the information originated. You must ensure that you gain their permission before reproducing any third party (non Crown Copyright) information.

If you believe this reply is not in accordance with the Freedom of Information Act 2000 you may ask for an internal review within two calendar months of the date of this letter. If you request a review you should do so in writing stating the reasons.

If following an internal review you were to remain dissatisfied you may make a complaint to the Information Commissioner and ask him to investigate whether the NIO has complied with the terms of the FOIA. You can write to the Information Commissioner at:

The Commissioner will not investigate a complaint unless an internal review procedure has been carried out.

Further details on the role of the Information Commissioner and the handling of appeals can be found at: www.informationcommissioner.gov.uk

If you wish to discuss this please contact the Freedom of Information Team using the contact details provided at the top of the first page. Please remember to quote your reference in any correspondence.

Yours sincerely

Freedom of Information Manager

Northern Ireland Office

Freedom of Information Team

11 Millbank

London

SW1P 4PN

Telephone 020 7210 0840

Email: [NIO request email]

Freedom of Information Team