Correspondence disclosed and deployed during SRA v Day and others

The request was successful.

Dear Sirs

FOI Request

The following request is made to the Ministry of Defence ("the MOD") under the Freedom of Information Act 2000 ("the Act").

Please send me a copy of the correspondence between the Solicitors Regulation Authority (“the SRA”) (of the one part) and the MOD or the Ministry of Justice or the Iraq Historic Allegations Team (of the other part) which the Solicitors Disciplinary Tribunal ("the SDT") directed/ordered the SRA to disclose to the respondents in case no. 11502/2016 (SRA v Day and Others). The SDT's relevant direction/order is referred to in the following articles:

https://www.lawgazette.co.uk/news/mod-le...

https://www.theguardian.com/law/2017/jul...

Comment

As you will know:

1. The SDT dismissed all allegations made in SRA v Day and Others in June 2017. The SRA's appeal was dismissed by the High Court (neutral citation [2018] EWHC 2726 (Admin)). The SRA has confirmed that it does not intend to mount any further appeal:

https://www.lawgazette.co.uk/news/sra-ch...

2. The information requested above has already been deployed during public hearings before the SDT: I am not requesting any information which has not already been disclosed and deployed pursuant to the SDT's order.

I look forward to receiving the requested material within the next 20 working days.

Yours faithfully

Tim Bullimore

DJEP-JRs (MULTIUSER), Ministry of Defence

1 Attachment

Dear Mr Bullimore,

Attached is a response to your request under the Freedom of Information Act, which has been allocated MOD reference FOI201814074.

Yours sincerely,

Ministry of Defence
Directorate of Judicial Engagement Policy

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Dear Sirs

FOI2018/14074

Thank you for your email dated 5 December 2018.

I note that you have not explained (a) what steps you propose to take which you have not been able to take before now or (b) how it could be in the public interest not to disclose material which was deployed in open court in SRA v Day and Others. If the MOD did not wish such material to be released to the public, it should have applied for an order to that effect before or during the trial. It did not do so.

Matters have in any event now moved on in that the Solicitors Disciplinary Tribunal has confirmed that there is no Rule, order, direction or undertaking which prevents the SRA or Leigh Day from disclosing the relevant correspondence. The Tribunal has directed that requests for copies of documents used in SRA v Day and Others should be addressed to the parties. In accordance with that confirmation and direction, I have asked the parties to disclose the correspondence. You will appreciate that directions and confirmations given by the Tribunal are not affected by anything contained in the Freedom of Information Act 2000.

Please therefore confirm whether you have any objection to the correspondence being disclosed by the parties (or, if necessary, by the Tribunal). Please provide that confirmation by 12 December 2018. If you intend to make a belated application to the Tribunal for an order or direction which restricts or prevents the parties (or the Tribunal) from releasing the correspondence, please say so and send me a copy of that application.

Yours faithfully

Tim Bullimore

DJEP-JRs (MULTIUSER), Ministry of Defence

Dear Mr Bullimore,

 

I was suffering from IT problems yesterday so I am resending this email in
case you have not already received it.

 

Yours sincerely,

 

 

Ministry of Defence

Directorate of Judicial Engagement Policy

 

From: Blackwell, Martin C2 (DJEP-JRs Casework 1) On Behalf Of DJEP-JRs
(MULTIUSER)
Sent: 10 December 2018 17:12
To: [FOI #530820 email]
Subject: Re: 20181205-FOI201814074-Freedom of Information Act
request-correspondence re: SRA v Day

 

Dear Mr Bullimore,

 

Thank you for your email of 5 December 2019, in response to the MOD's
letter of the same date.

 

It may be helpful to know that the purpose of the letter of 5 December
2018 was to notify you that the MOD has identified some information that
falls within the scope of your request but, because the information also
falls within the scope of the exemptions provided for at sections 31 and
35 of the Freedom of Information Act, the MOD is required to conduct a
public interest test to determine whether the balance of the public
interest lies in releasing or withholding this information.

 

In order to conduct this public interest test, the MOD is entitled to take
further time in addition to the initial 20 working day period. The MOD
will require a further 20 working days to conduct this test and therefore
intends to provide you with a full response at the end of that additional
period i.e. by 9 January 2019. If the MOD is unable to conclude the test
by that date, you will be informed and provided with a new date.

 

For the avoidance of doubt, the MOD is currently in the process of
undertaking the public interest test and no determination has yet been
made as to whether the information should be released or withheld.

 

Please rest assured that the MOD is treating your request with due care
and consideration.

 

Yours sincerely,

 

 

Ministry of Defence

Directorate of Judicial Engagement Policy

 

 

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Dear Sirs

Thank you for your emails dated 10 and 11 December 2018.

With respect, you are misstating the effect of the FOIA 2000. The MOD is not "entitled" to take extra time. The obligation is to respond promptly and in any event within 20 working days. The MOD may claim a reasonable extension of time, where required, to consider the public interest test. That assumes that the MOD has a good reason for not being able to consider the public interest test during the period of 20 working days. You have not advanced any such reason. You have simply claimed an extension on the misconceived basis that you are "entitled" to do so because the exemptions upon which you would like to rely are qualified exemptions.

You have avoided answering my question about whether the MOD objects to the correspondence being disclosed by the parties (or the Tribunal). That question needs to be answered, because decisions about the disclosure of material deployed in open court at trial (as the correspondence was) are for the Tribunal (not the SRA or the MOD), which has confirmed that there is no Rule, order, direction or undertaking which prevents the parties from disclosing the correspondence. Please now answer the question: does the MOD object to the parties (or the Tribunal) disclosing the correspondence? That question needs to be answered immediately (not postponed until 9 January 2019). I look forward to receiving a clear answer to it by return.

Yours faithfully

Tim Bullimore

Tim Bullimore left an annotation ()

DJEP-JRs (MULTIUSER), Ministry of Defence

Dear Mr Bullimore,

Thank you for email of 11 December 2018.

You have already been advised that the MOD is currently conducting a public interest test to assess whether the information we hold should be released or withheld. The question you are seeking an answer to will be addressed as part of that public interest test process and we have undertaken to write to you again once it is complete. We have indicated that we will respond to your request by 9 January 2019 and therefore we do not propose to engage further on this matter until that time.

If you wish to complain about the handling of your request, or the content of this response, you can request an independent internal review by contacting the Information Rights Compliance team, Ground Floor, MOD Main Building, Whitehall, SW1A 2HB (e-mail [email address]). Please note that any request for an internal review should be made within 40 working days of the date of this response.

You may already be aware that the SRA has now published some information on this matter. The link to the SRA website is - https://www.sra.org.uk/sra/news/leigh-da...

Your sincerely,

Ministry of Defence
Directorate of Judicial Engagement Policy

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Dear Sirs

Thank you for your email.

The public interest test to which you refer relates to disclosure by the MOD under the FOIA, not disclosure by the Tribunal as part of its obligation to ensure open justice in respect of material which was deployed in open court at trial. That is why you need to explain whether you would seek to object to disclosure of the requested material by the Tribunal. The two things are entirely separate.

Yours faithfully

Tim Bullimore

DJEP-JRs (MULTIUSER), Ministry of Defence

1 Attachment

Dear Mr Bullimore,

 

I attach the MOD's response to your request under the Freedom of
Information Act 2000, which was allocated MOD reference FOI2018/14074.

 

As you will see, the MOD has concluded that the balance of public interest
lies in favour of releasing the information held and I have prepared a
bundle of material consisting of 240 pages. In electronic format, the
bundle is 32MB in size which means it may be too large to send via email.
To ensure that you at least receive the written response now attached, I
will attempt to send the bundle of material under the cover of a separate
email to the same [1]www.whatdotheyknow.com address although I am unsure
whether that website will allow you to receive attachments. If you do not
receive the bundle within 24 hours, I should be grateful if you would
notify me and provide me with either an alternative email address or a
postal address so I may send the material in hard copy by post.

 

Further to your request above, you have also asked whether the MOD objects
to the correspondence being disclosed by the parties or Tribunal. I should
advise you that it is MOD policy to treat all correspondence received via
the [2]www.whatdotheyknow.com website as a request for information under
the Freedom of Information Act. Section 1 of the Act gives an applicant
the right to access recorded information held by public authorities at the
time the request is made and it does not require public authorities to
answer questions, provide explanations or give opinions, unless this is
recorded information held. I can confirm that the MOD holds no recorded
information that would provide an answer to your question.

 

You may find it helpful to know that the Information Commissioner’s Office
publishes guidance on how to make requests for information under the Act
in the ICO Charter for Responsible Freedom of Information Requests,
available on the ICO website at the following address:
[3]http://www.lucy-cav.cam.ac.uk/assets/ima...

 

Hopefully the release of the information held by the MOD will provide an
answer to your further question but, if you do seek further clarification,
you should write to the MOD direct (i.e. not through
[4]www.whatdotheyknow.com) so the matter can be dealt with as general
Departmental correspondence rather than a Freedom of Information Act
request. The contact details are: 

 

Ministry of Defence

Ministerial Correspondence Unit

MOD Main Building

Whitehall

London

SW1A 2HB

[5][email address]  

 

Yours sincerely,

 

 

Ministry of Defence

Directorate of Judicial Engagement Policy

 

 

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DJEP-JRs (MULTIUSER), Ministry of Defence

2 Attachments

Dear Mr Bullimore,

 

Further to my email below, I now attach the bundle of material which is
being released to you.

 

As was explained in my letter, I have located a typed version of the
handwritten notes which appear at pages 229 – 232 of the bundle and this
is also attached.

 

Your sincerely,

 

 

Ministry of Defence

Directorate of Judicial Engagement Policy

 

From: DJEP-JRs (MULTIUSER)
Sent: 09 January 2019 16:30
To: '[FOI #530820 email]'
<[FOI #530820 email]>
Subject: 20190109-FOI201814074-Freedom of Information Act
request-correspondence re: SRA v Day

 

Dear Mr Bullimore,

 

I attach the MOD's response to your request under the Freedom of
Information Act 2000, which was allocated MOD reference FOI2018/14074.

 

As you will see, the MOD has concluded that the balance of public interest
lies in favour of releasing the information held and I have prepared a
bundle of material consisting of 240 pages. In electronic format, the
bundle is 32MB in size which means it may be too large to send via email.
To ensure that you at least receive the written response now attached, I
will attempt to send the bundle of material under the cover of a separate
email to the same [1]www.whatdotheyknow.com address although I am unsure
whether that website will allow you to receive attachments. If you do not
receive the bundle within 24 hours, I should be grateful if you would
notify me and provide me with either an alternative email address or a
postal address so I may send the material in hard copy by post.

 

Further to your request above, you have also asked whether the MOD objects
to the correspondence being disclosed by the parties or Tribunal. I should
advise you that it is MOD policy to treat all correspondence received via
the [2]www.whatdotheyknow.com website as a request for information under
the Freedom of Information Act. Section 1 of the Act gives an applicant
the right to access recorded information held by public authorities at the
time the request is made and it does not require public authorities to
answer questions, provide explanations or give opinions, unless this is
recorded information held. I can confirm that the MOD holds no recorded
information that would provide an answer to your question.

 

You may find it helpful to know that the Information Commissioner’s Office
publishes guidance on how to make requests for information under the Act
in the ICO Charter for Responsible Freedom of Information Requests,
available on the ICO website at the following address:
[3]http://www.lucy-cav.cam.ac.uk/assets/ima...

 

Hopefully the release of the information held by the MOD will provide an
answer to your further question but, if you do seek further clarification,
you should write to the MOD direct (i.e. not through
[4]www.whatdotheyknow.com) so the matter can be dealt with as general
Departmental correspondence rather than a Freedom of Information Act
request. The contact details are: 

 

Ministry of Defence

Ministerial Correspondence Unit

MOD Main Building

Whitehall

London

SW1A 2HB

[5][email address]  

 

Yours sincerely,

 

 

Ministry of Defence

Directorate of Judicial Engagement Policy

 

 

show quoted sections

Dear Sirs

I confirm receipt of your emails dated 9 January 2019.

You say that:

"To assist with his preparation for giving evidence, the solicitors acting for the SRA provided Dr Sanders with a bundle containing relevant items from the wider body of correspondence disclosed to Leigh Day."

Please confirm (if it be the case) that:

1. The material which you have disclosed represents the entirety of the bundle which the SRA's solicitors provided to Dr Sanders.

2. Beyond the material disclosed with your emails dated 9 January 2019, the MOD holds no information or documents falling within the scope of my request. Please bear in mind that my request is not limited to the bundle which the SRA's solicitors provided to Dr Sanders: the request is for the correspondence (with the MOJ, MOD and IHAT) which the SRA was directed to disclose. If you are in any doubt about what the SRA did disclose pursuant to that direction, you will need to liaise with the SRA (if you have not already done so) to ensure that the MOD holds no further information/documentation falling within the scope of my request.

Yours faithfully

Tim Bullimore

DJEP-JRs (MULTIUSER), Ministry of Defence

Dear Mr Bullimore,

 

I am treating your further communication as a request for clarification of
the response to your original request rather than a new request for
information under the Freedom of Information Act.

 

In response to your questions, I can confirm the following:

 

 1. The bundle which the SRA’s solicitors provided to Dr Sanders contains
information within the scope of your request, as well as information
outside the scope of your request. The material which has been
released to you represents the entirety of the information in the
bundle which is in scope of your request. You have not been provided
with the information contained in the SRA bundle that falls outside
the scope of your request;
 2. The MOD does not hold any additional information, above that which has
already been released to you, which is within the scope of your
request.

 

I trust this matter is now concluded. Should you seek further information
on this issue, please submit a fresh request for information under the
Freedom of Information Act or write to the MOD address for general
correspondence which you have already been provided with.

 

Yours sincerely,

 

 

Ministry of Defence

Directorate of Judicial Engagement Policy

 

show quoted sections

Dear Sirs

I will submit a new request in respect of matters arising out of the material which you have disclosed. Thank you for disclosing that material.

Youra faithfully

Tim Bullimore

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