Copy of the redacted ISC Special Report on Russia

Christopher Whitmey made this Freedom of Information request to Cabinet Office This request has been closed to new correspondence. Contact us if you think it should be reopened.

The request was refused by Cabinet Office.

Christopher Whitmey

Dear Cabinet Office,

Please will you send me a copy of the redacted ISC 'Special Report on Russia' which you hold.

As you may be aware the ISC, and members of both Houses of Parliament, were most anxious it was in the public domain. For a summary please see https://commonslibrary.parliament.uk/res... at 4.5 Russia.

From the evidence in SN02178 it is plainly apparent that, now it is fully redacted, it is in the public interest that it is in the public domain.

Due to the large public interest in this matter, please can this FOIA request be expedited.

Yours faithfully,

Christopher Whitmey

Christopher Whitmey left an annotation ()

My previous request https://www.whatdotheyknow.com/request/i... hit the buffers of s.23.
In the light of the Cabinet Office's recent response on 16 April 2020 https://www.whatdotheyknow.com/request/r... it appears that s.23 grounds have been replaced by s.22.

FOI Team Mailbox, Cabinet Office

CABINET OFFICE REFERENCE:  FOI2020/04858

Dear CHRISTOPHER WHITMEY

Thank you for your request for information. Your request was received
on 28/4/2020 and we are considering if it is appropriate to deal with
under the terms of the Freedom of Information Act 2000.

This email is just a short acknowledgement of your request.

When corresponding with the Cabinet Office, you may wish to be aware of
how we treat your personal Information.  This is set out in our personal
information charter, at the following
link: [1]https://www.gov.uk/government/organisati...

If you have any queries about this email, please contact the FOI team.
Please remember to quote the reference number above in any future
communications.

Yours sincerely,

 Knowledge and Information Management Unit

Cabinet Office

E: [2][Cabinet Office request email]

References

Visible links
1. https://www.gov.uk/government/organisati...
2. mailto:[email address]

FOI Team Mailbox, Cabinet Office

1 Attachment

Please find attached the reply to your FOI request

 

 

 

Regards

 

 

FOI Team

Room 405

70 Whitehall,

London, SW1A 2AS

E-mail -[1][Cabinet Office request email] 

References

Visible links
1. mailto:[email address]

Christopher Whitmey

Dear Cabinet Office,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Cabinet Office's handling of my FOI request 'Copy of the redacted ISC Special Report on Russia'.
The refusal under section 22 has carefully been considered. Please can it be referred for Internal Review on the following grounds:
A The ISC wished the redacted Report to be published without delay.
B The public are being denied their right under Article 10(1) of the Human Rights Act 1998: “to receive information … without interference by public authority”.
C It is in the public interest that the redacted Report is in the public domain as soon as possible.

A ISC
1 On 31 October 2019 the then ISC Chairman, Mr Dominic Grieve, MP, raised a Point of Order concerning the urgency of publishing the Report: Hansard Volume 667 Column 507.

2 On 04 November 2019 Lord Anderson of Ipswich asked a Private Notice Question concerning the Report. Earl Howe (Government post of Deputy Leader of the House of Lords) replied (emphasis *<...>* added): “In due course, the *<Government will release the report for publication>*, but the processes must be gone through first.” House of Lords Hansard Volume 800 Column 1098. Other of their lordships commented on the urgent need for the Report to be in the public domain to avoid speculation about possible interference in domestic politics by the Russians.

3 On 05 November 2019 Mr Dominic Grieve MP, said, (emphasis *<...>* added), “*<The Intelligence and Security Committee operates on a completely non-partisan basis to try to put information into the public domain in the national interest.>* This report was completed in March of this year after many months of work. There then began a process of correction and redaction needed to get it published, and that process, which involved the agencies and the Cabinet Office, was completed *<by early October, when the agencies and the national security secretariat indicated that they were happy that the published form would not damage any operational capabilities of the agencies.>* That is why, on 17 October, the report was sent to the Prime Minister for final confirmation. …
Will the Minister confirm that the Prime Minister does not have carte blanche to alter our reports or remove material from them, and that, if he wishes to exercise a veto over publication, he must give the Committee a credible explanation as to why he is doing so? Will he also explain why No. 10 spokesmen insisted that no publication should take place because weeks of further interdepartmental consultations were needed, when, I have to say to the Minister, this explanation was plainly bogus? Finally, will he explain why No. 10 spokesmen suggested that parts of the report had been leaked by the Committee, when it is plainly obvious to anybody who looks at the journalistic speculations that they have not? Would he now like to take the opportunity of withdrawing that particular slur, which came from No. 10?” see Hansard Volume 667 Column 647.

4 On 17 December 2019 the ISC posted the News item (emphasis <*...*> added): On 13 December No. 10 wrote to the Committee Secretariat to notify it that the <*Prime Minister has now confirmed that there is no material in the Committee's Russia Report which, if published, would be prejudicial to the discharge of the functions of the security and intelligence Agencies*>, and that therefore the Report may be published once the new Committee is appointed. Posted 17 Dec 2019, 07:23 by ISC Admin.

5 On 29 April 2020 the ISC emailed Mr Whitmey, a member of the public: “I am replying on behalf of the Committee. The news report you refer to [future ISC chair] is media speculation and we do not comment on such speculation. We have not had any official notification on prospective ISC Membership and there has not yet been any vote on Committee Membership by the respective Houses of Parliament. Kind regards, ISC Secretariat.”

B Article 10
6 It is accepted that Article 10(2) states, “The exercise of these freedoms ... may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security”. It is clear beyond peradventure from 3, 4 and 5 above that due process has been carried out and there is no risk whatsoever to national security in releasing a copy of the redacted Report to the public.

7 It is accepted that the Justice and Security Act 2013 (JSA) sets out a detailed process for protecting the national security and also for publishing ISC reports: Section 3. Reports of the ISC ...
(3) Before making a report to Parliament, the ISC must send it to the Prime Minister.
(4) The ISC must exclude any matter from any report to Parliament if the Prime Minister, after consultation with the ISC, considers that the matter would be prejudicial to the continued discharge of the functions of the Security Service, the Secret Intelligence Service, the Government Communications Headquarters or any person carrying out activities falling within section 2(2).
(5) A report by the ISC to Parliament must contain a statement as to whether any matter has been excluded from the report by virtue of subsection (4).
(6) The ISC must lay before Parliament any report made by it to Parliament.

8 Secs.3(3)-(4) have been carried out: see [4] above. The ISC has been prevented from carrying out sec.3(5)-(6) by the first the General Election and second the understandable delay due to Covid-19 in the ISC being appointed by Parliament: see [5] above.

9 Once a report has been cleared by the PM for publication then subsequent JSA steps are procedural to ensure wide publication and do not prohibit issuing under FOIA public interest grounds. There appears to be nothing in the JSA that prohibits issuing, under FOIA public interest grounds, an ISC report that has completed sec.3(3)-(4) procedures: save for respect of the ISC. Earl Howe in fact unequivocally declared that when the Prime Minister had approved the report ('the processes'), ‘Government will release the report for publication’: see [2] above.

10 The refusal of the Cabinet Office to release a copy of the redacted Report clearly frustrates Article 10(1) of the Human Rights Act 1998: “to receive information … without interference by public authority”.

11 Article 10 was considered in detail in the Case of Centre for Democracy and The Rule Of Law v. Ukraine (10090/16) 26 March 2020: e,g. “86. In this connection, the privileged position accorded by the Court in its case-law to political speech and debate on questions of public interest is relevant. The rationale for allowing little scope under Article 10 (2) of the Convention for restrictions on such expressions, likewise militates in favour of affording a right of access under Article 10(1) to such information held by public authorities.” citing Magyar Helsinki Bizottság v. Hungary.

C The Public Interest
12 The fact that the information falls within the exemption is simply a trigger to consider the public interest; it does not imply that there was a public interest in not disclosing it. This approach was approved by the High Court in the case of Office of Government Commerce v Information Commissioner [2008] EWHC 737 (Admin) (11 April 2008) at paragraph 79: see ICO The Public Interest Test 20160719 Version 2.1 at p.10 [24].

13 A search of the WhatDoTheyKnow? website indicated some 25 requests for copies of the Report have been made and refused.

14 The tribunal references in ICO The Public Interest Test 20160719 Version 2.1 give grounds for thinking it is in the public interest for the Cabinet Office to provide a copy of the redacted Report.

15 There has been speculation about Russian interference with UK politics: see [2] above. Publication of the redacted Report could end such speculation.

16 It is respectfully submitted a tribunal might take the view that it is in the public interest to publish the redacted Russia report. See: Jenna Corderoy v IC (Allowed) [2019] UKFTT 2018_0299 (GRC), the tribunal concluded:
[26] A key public interest in disclosure of the material is to illuminate how IPSA [Independent Parliamentary Standards Authority created by the Parliamentary Standards Act 2009] carries out its role of ensuring that public money is only expended on proper public purposes; there is real public interest in scrutiny of IPSA's assurance review process and the ERG materials at issue here were among the raw materials for the review. Disclosure would help the public understand the assurance review process better, and IPSA's conclusions following these reviews. This would further transparency, accountability and public trust with respect to the working of Parliament.
[27] The tribunal is satisfied that while some harm will flow from an impact on IPSA’s relationships with pooled service providers, this harm is not great. Demonstrating the rigour of the regulatory process underpinning the work of MPs is of considerable significance and the tribunal is satisfied that the public interest is in disclosure.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/c...

Yours faithfully,
Christopher Whitmey

FOI Team Mailbox, Cabinet Office

CABINET OFFICE REFERENCE:  IR2020/05738

Dear Christopher Whitmey

Thank you for your request for an internal review. Your request was
received on 12/5/2020 and is being dealt with under the terms of the
Freedom of Information Act 2000.

This email is just a short acknowledgement of your request.

If you have any queries about this email, please contact the FOI team.
Please remember to quote the reference number above in any future
communications.

Yours sincerely,

Knowledge and Information Management Unit

Cabinet Office

E: [1][Cabinet Office request email]

 

References

Visible links
1. mailto:[Cabinet Office request email]

FOI Team Mailbox, Cabinet Office

1 Attachment

Please find attached the reply to your IR request

 

 

 

Regards

 

 

FOI Team

Room 405

70 Whitehall,

London, SW1A 2AS

E-mail -[1][Cabinet Office request email] 

References

Visible links
1. mailto:[email address]

Christopher Whitmey

Dear FOI Team Mailbox,

Your internal reviewer states (*<...>* emphasis added), "I consider that the *<exemptions>* at 22(1) and *<23(3)>* of the Freedom of Information Act *<were properly applied>*. "

With respect, the refusal dated 12 May 2020 did not refer to 23(3) in any way whatsoever. Please can the internal reviewer explain in detail:
1. Why was s.23(3) considered at Internal Review? and
2. What circumstances/facts have changed since 12 May 2020 that it is now considered applicable?

Yours sincerely,

Christopher Whitmey

FOI Team Mailbox, Cabinet Office

1 Attachment

Dear Christopher Whitmey, 
Please find attached our original response. Our response explains that
section 23(3) is engaged alongside section 22(1) because the report itself
is the property of the independent Intelligence and Security Committee of
Parliament (ISC), which is a body named under section 23(3) of the Act. 
I apologise for any confusion.
Kind regards, 
Cabinet Office FOI Team

show quoted sections

Christopher Whitmey

Dear Cabinet Office FOI Team,

Thank you for your speedy reply and attachment. It is I who should apologise. When I made my request I had very recently seen another Cabinet Office reply to another request for the same report. That refusal (I've just re-read it) solely relied on section 22.

Thus when I received your original reply to my request as soon as I read the refusal on s.22 grounds I failed to read further <}:-( A case of less haste more speed.

Yours sincerely,

Christopher Whitmey

Christopher Whitmey left an annotation ()

I referred the refusal to the ICO. After the Report was published the ICO asked if I wished to close my complaint. After reconsideration I replied.
"With the pressure of work on the ICO and the publication of the Russia Report I quite understand your invitation to consider closing my complaint.
I have given the matter careful consideration. I've reflected on the circumstances surrounding its publication and comments by the present ISC. On balance I wish proceed with my complaint.
Please see the attachment for a slightly updated edition of my complaint. I do not wish the events that form the basis of my complaint to become possible precedents for political party expediency when faced with FOIA requests."

Christopher Whitmey left an annotation ()

I've received the ICO's decision notice. It will be published. The closing paragraphs are:

25. The Commissioner has not formally considered whether the Cabinet Office is entitled to rely on section 22(1), however, she does not consider that the Cabinet Office’s use of section 22(1) undermines its reliance on section 23(1). The Cabinet Office has relied on section 23(1) as the requested information was created and provided by the ISC, it is not contradictory to also rely on section 22(1) on the basis that the report will be published by its creating body. Whilst the JSA is not within the Commissioner’s remit to issue decisions about, she considers that it makes clear that any report created by the ISC can only be published by the ISC laying it before Parliament.
26. The Cabinet Office has demonstrated that the information was created and provided by the ISC and therefore the exemption at section 23(1) is engaged. The exemption is absolute and is not subject to a public interest test.
27. As the entirety of the requested information is exempt under section 23(1), the Commissioner has not gone on to consider whether section 22(1) is engaged as to do so would be academic. She has, however, commented on the use of section 22(1) by the Cabinet Office in the previous decisions referenced above.

I have accepted the ICO's decision.