How the Metropolitan Police changed its approach to releasing Special Branch files under the Freedom of Information Act

Nicola Cutcher and Eveline Lubbers, 12 January 2016

In the first few years following the introduction of the Freedom of Information Act in 2005, the Metropolitan Police and the Home Office had a fairly flexible policy on releasing Special Branch documents.

Although the Act made an exemption for information related to security services, disclosures to various journalists included files on the secret police monitoring of political movements and individuals, including the Campaign for Nuclear Disarmament, the Anti-Apartheid movement, and disputes between trade union workers and their employers.

Unfortunately such transparency was short-lived and the police increasingly refused similar requests, leading to the situation today where refusal of Special Branch documents is routine. Even requests for repeat disclosure are denied.

So what changed?

With assistance from several of the investigative reporters involved, we examine the change in policy.

In January 2008, the journalist Solomon Hughes submitted a FOI request to the Met asking for Special Branch files on Tony Cliff, the former leader of the Socialist Workers Party. The Met initially refused to confirm or deny whether they held the information. Hughes asked them to review their response, arguing that the National Archives had already released Special Branch documents on the surveillance of individuals. The Met then confirmed that it held the information, but still refused to disclose it for a number of reasons, one of which relied upon section 23 of the FOI Act.

Section 23 stipulates that information held by a public authority is exempt from the FOI Act if it was supplied by, or relates to, any bodies dealing with security matters.

Hughes appealed the Met’s refusal and in May 2010 the Information Commissioner decided that any information relating to security bodies should be withheld, as should personal information, but ordered the Met to disclose the rest of the requested information where those particular exemptions did not apply.1

A few months later the Met argued that they now believed that all of the information they held on Tony Cliff related to security bodies and was therefore exempt from disclosure. A ‘senior officer’ provided evidence to the ICO to support the Met’s argument.2

Upon learning that the Information Commissioner was considering reversing his original decision in light of this new evidence, Hughes requested to be added as a party to the case because he believed that he was best placed to argue for disclosure.

Hughes wrote to the Information Tribunal,

I find it hard to believe that all the information the MPS are currently refusing to release is in any way more sensitive than papers they have released in the past … If I am party to the hearing I can make this case – a case which the Information Commissioner cannot put because the Commissioner was not involved in the other releases.3

Hughes’ request was refused. A Consent Order published in November 2010 stated that the Information Commissioner ‘now accepts that all of the information held in this case is subject to the absolute exemption in section 23, on the basis that it relates to the work of one of the bodies listed at section 23(3)’ and therefore the information need not be disclosed.

The Met’s evidence convinced the Information Commissioner that Special Branches work closely with security bodies and routinely share information with them. On the balance of probabilities, any information held by Special Branch is now considered likely to have either come from a security body, or to have been shared with one. In this way, Special Branch material is likely to ‘relate to’ a security body and qualifies as exempt from disclosure.

By law this is an absolute exemption, so no other factors such as a public interest test apply. All information relating to a security body is exempt, even if it does not pose any threat to national security and would not have a damaging effect if disclosed.

What evidence informed this decision? We don’t know because the Tribunal hearings were closed to the public and the press.

Cases previously heard by the Information Tribunal had already established that where information could be said to ‘relate to’ a security body the police were entitled to provide a ‘neither confirm nor deny’ response. It was considered just as important to protect the knowledge of whether or not a security body had handled the information as it was to protect the content of the information.4

When Parliament passed the Freedom of Information Act, they did not exempt Special Branches from scrutiny. Section 23(3) of the FOI Act specifies bodies which are exempt, including the Security Service, Secret Intelligence Service and GCHQ. Special Branches are not on that list.

Hughes believes that the presumption that Special Branch work is likely to relate to security bodies is an abuse of parliament’s intentions. He told us,

They’re attempting to stretch this exemption to apply directly to Special Branch, when it was never intended to be exempt. Furthermore, they used to release these documents and no harm came of it. The sky didn’t fall in.

Irish television journalist Richard Dowling challenged the breadth of the ICO’s interpretation of ‘relates to’ in Section 23, but a Tribunal decided in February 2012 that such a broad interpretation is justified.5

Indeed, the Information Commissioner has upheld the Met’s reliance on section 23, even when he admitted that it seemed ‘irrational’ to do so. In one case the Met refused to confirm or deny whether they held Special Branch documents about a 1988 student demonstration, even though the Home Office had released files referring to them. In May 2012 the ICO decided that the Met was justified to take this position, though the Commissioner could

understand why it may be considered irrational for a public authority to adopt a neither confirm nor deny response if it was already known, via previous FOI disclosures, whether a public authority held the requested information.6

The new restrictive policy is now so well established that the past openness to disclosure of Special Branch documents appears to be considered anomalous by officials; a series of exceptions or mistakes that were made when the FOI Act was in its infancy and organisations were just getting to grips with it.

Even repeat requests to the Met for Special Branch documents that were previously disclosed under the Act tend to be rejected, with officials using the current policy to refuse such material, overriding the principle that information released under the FOI Act should be considered public information.

The Special Branch Files Project shares documents that have been obtained using the FOI Act. We owe a debt of gratitude to the pioneering journalists and researchers who successfully acquired this material in the early days of the Act. When these files were disclosed they became, by right, public information. We’re pleased to uphold this principle and make this material accessible to all. The Met may have shut the door on this information for now, but they can’t turn the clock back.

Also see:

Further Reading:

1. ICO Decision Notice, Reference FS50219518, Date 27 May 2010
2. Email from the ICO to Solomon Hughes, 3rd Nov 2010
3. Email from Solomon Hughes to the Information Tribunal, 8th Nov 2010
4. Metropolitan Police Commissioner v. Information Commissioner, EA/2010/0008, May 2010
5. Decision, Case EA/2011/ 0118, First Tier Tribunal Information Rights, Date 22 Feb 2012
6. ICO Decision Notice, Reference FS50410653, Date 15 May 2012

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