Enquiry into the intended use of depleted uranium weapons

The request was refused by Ministry of Defence.

Dear Ministry of Defence,

The Article 36 API to Geneva Conventions, Legal review of the 120mm anti-tank round CHARM3 has recently been undertaken. I would like to see the section of this document that states the intended use of CHARM3, and any restrictions that might apply to its use.

Yours faithfully,

Aneaka Kellay

Sec Pol Ops-FOI (MULTIUSER), Ministry of Defence

1 Attachment

Dear Ms Kellay,

 

PSA response to your Freedom of Information request

 

 Regards

 

Simon Skerritt

Deputy Business Manager, Defence Strategy and Priorities (DSP), 4-F-02,
Security Policy & Operations, Main Building, Ministry of Defence,
Whitehall, London SW1A 2HB.

Email: [1][email address]

 

 

References

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Fred WP Dawson left an annotation ()

Its surprising the information is being withheld as the review and discussions with lawyers were completed by July 2012. I suggest there are suciffent grounds to request an internal review

Dear Ministry of Defence,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Ministry of Defence's handling of my FOI request 'Enquiry into the intended use of depleted uranium weapons'.

You state that the request was exempt under section 42(1) of the Freedom of Information Act to protect legal professional privilege (LPP). Section 42(1) is a qualified exemption and therefore subject to a balance of public interest test. In this case you note that “it was necessary to weigh any factors favouring disclosure against the strong public interest in protecting the LPP which has been recognised by the courts and the Information Tribunal.” I would like to request you re-evaluate the outcome of your public interest test, and reconsider the decision to withhold the information I have requested.

I would like to challenge the judgement that it suits the public interest to keep the requested information disclosed under this act. According to the Information Commissioner’s Office(Information Commissioners Office (2007) p4, Freedom of Information Act: Awareness Guidance No 3, 1st March 2007), a public interest factor that encourages the disclosure of information includes:
Furthering the understanding of and participation in the public debate of issues of the day. This factor would come into play if disclosure would allow a more informed debate of issues under consideration by the Government or a local authority.

The guidance document that this point was taken from also states that; “there may be other factors which should be taken into account depending upon the request for information. For instance, the disclosure of information may ... assist in the access to justice and other fundamental rights.”

The MoD recently made a statement on public anxiety around the issue of depleted uranium weapons; “We acknowledge some public anxiety. We are conscious many people are concerned there is a link between the use of DU ammunition and medical problems such as cancers and birth defects. This is an issue taken very seriously by the Government. The cases of illness reported in Iraq and elsewhere are extremely distressing especially when they affect children.”(Sonnex, Lt Col P, 9 Sept 2011, Correspondence ref: ACP-IHL-DU)

My request made in relation to intended use of CHARM 3 and any restrictions that might apply to its use is a part of a wider debate around depleted uranium (DU) weapons, an issue of public concern that the MoD has itself recognised. Releasing information on what legal advisers consider ‘the intended use and restrictions on use’ of DU weapons allows for an informed public debate on where and how DU weapons should be used.

This should be given weight in a public interest test. The fact that this is also an issue of fundamental rights and access to justice from the point of view of innocent civilians who may come into contact with DU weapons and potentially suffer negative health impacts, should also be taken into consideration in terms of the weighting of a public interest test.

Further to this, Legal Professional Privilege (LPP) which protects all communications between a professional legal and his or her clients from being disclosed without the permission of the client is a privilege of the client and not that of the lawyer, and the client has the right to waiver. In this case the client is the Ministry of Defence, a government body accountable to the public. We must assess whether it is in the public’s interest to have the information withheld or released, not whether it is in the public’s interest to protect the LPP, as you have suggested.

The strength of the debate around DU weapons suggests that public interest lies in favour with disclosure as opposed to the protection of the LPP.

An additional point notes that according to the Information Commissioner policy advice from professional legal advisers not about the substantive rights and obligations of an authority should not be considered privileged(Information Commissioners Office (2004) p8, Freedom of Information Act: Awareness Guidance No 4, May 2004). Thus I enquire as to whether the Article 36 Legal Review of CHARM 3 is a policy document and thus whether information within it can even be considered privileged.

Given these arguments, I would like you to reverse your decision to withhold information under s.42(1). If a resolution is not possible I will take this case to the Information Commissioner’s Office.

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

Yours faithfully,

Aneaka Kellay

CIO-FOI-IR (MULTIUSER), Ministry of Defence

Dear Ms Kellay,

 

Acknowledgement of Request for a Freedom of Information Act (FOIA)
Internal Review

 

The Deputy Head of Corporate Information has asked me to acknowledge your
email received here yesterday (30 January 2013) in which you applied for
an internal review of your request for information under the FOIA, our
reference 10-01-2013-103402-002.

 

The Department's target for completing internal reviews is 20 working days
and we therefore aim to complete the review and respond to you by 27
February 2013. While we are working hard to achieve this, in the interests
of providing you with a realistic indication of when you should expect a
response, I should advise that the majority are currently taking between
20 and 40 working days to complete.

 

The review will involve a full, independent reconsideration of the
handling of the case as well as the final decision.

 

Yours sincerely,

FOI Internal Review Team

 

 

CIO-FOI-IR (MULTIUSER), Ministry of Defence

1 Attachment

Dear Ms Kellay,

 

Please see attached for the internal review for your request for
information under the Freedom of Information Act 2000, our reference
10-01-2013-103402-002.

 

Yours sincerely,

FOI Internal Review Team

 

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