Previously disclosed files made secret again

Nicola Cutcher writes about how she tried and failed to get the Met to re-release Special Branch files on the Wapping dispute using the FOI Act, 12 January 2016.

The Metropolitan Police routinely refuse Freedom of Information requests for Special Branch material. This wasn’t always the case. The Met used to be more open. In the early years of the FOI Act, journalists obtained various Special Branch documents covering industrial disputes, protests and campaigns.

One such journalist, Solomon Hughes, kindly furnished me with a list of his successful FOI requests so that I could try asking for the same information. The Met’s Disclosure Log states very clearly: ‘When information is released under the Freedom of Information Act, it is disclosed to the world.’

Following this principle, I reasoned that the information which they had previously released to Hughes was now public information which should also be disclosed to me. The Met might be reluctant to disclose the material, but they would be forced to do so because they’d released it in the past. They couldn’t ‘un-release’ information. Or could they?

In April 2014, I replicated Hughes’ request to the Met asking for ‘Papers – including Special Branch papers – about the Wapping Strike from 1986-7’. I copied his original wording exactly.

In response, the Met sent me eighteen emails with attachments of press cuttings and leaflets relating to the Wapping dispute – but no files. They refused to disclose any further information on the grounds of national security and because it related to security bodies. This has been the catch-all exemption that they’ve used for most Special Branch material since 2010 (which we have written about here).

I was sceptical that the Met could withhold from me information which they had released to another individual under the FOI Act, so I immediately challenged the decision. I included the reference number for Hughes’ original FOI request along with the date it was submitted.

The Met began an internal review into my complaint, but stressed that FOI requests were always assessed on a case-by-case basis at the time of each request. They said a public authority is entitled to change its position on disclosure and the Met is not bound by past disclosures. They wrote,

It is pertinent to note that the earlier request referred to was made in the 1st year after the Freedom of Information Act 2000 came into effect on 1st January 2005. Since that time, experience, case law and related guidance has developed and progressed in relation to how the Act and any associated harm in disclosure may be interpreted or assessed.

Furthermore, the Met claimed they no longer knew what information was disclosed to Hughes. They knew that ‘partial disclosure of one file relating to the Wapping Dispute’ was made, but had no record of the content disclosed. They wrote, ‘Therefore, it is not possible for the MPS to significantly factor this into a disclosure decision in relation to your request.’

The Met’s internal review refused my request on cost grounds because my request for ‘all papers’ was considered too wide-ranging. They invited me to narrow the scope of my request, but stated ‘this correspondence neither confirms nor denies the existence of Special Branch files relating to your request.’

I obligingly refined my request and asked specifically for all Special Branch files related to the Wapping dispute. I argued that the Met’s refusal to confirm or deny holding such files was ‘rendered absurd’ by the fact that they had already released these files to Hughes in 2005.

The Met then refused my amended request on the grounds that the material related to security bodies and should be withheld to protect national security.

In January 2015, I wrote to the Information Commissioner’s Office to appeal the Met’s refusal. I said, ‘I can’t see any evidence that the police have even opened the files and made any effort to assess the suitability of individual files for disclosure. It seems inconceivable to me that they have not found a single document suitable for release.’

I provided a link to an article by Hughes about the Wapping files which gave a good account of the type of Special Branch documents he had received from the Met. In the absence of their own records, I believed this would enable the Met to determine which files they had already released.

My caseworker at the ICO, Carolyn Howe, encouraged me to discuss my case with the Met and attempt to resolve the case informally.

The Met’s Nigel Shankster told me that their Special Branch file for the Wapping dispute was divided into 19 parts, each containing around 180-250 pages. He said it would take him weeks to go through all of the files to mark them up for disclosure and that most of the material would relate to the security services and so be withheld anyway.

Shankster explained that he thought some of these files were released to Hughes in the past because ‘at that time with the Act less than a year old, ALL public authorities were on a sharp learning curve and errors on disclosure and application of the Act were made.

In other words, the Met now considers the past disclosure of this information to be an error.

I didn’t want to insist that the Met spend weeks marking up the Wapping files for potential release, especially given their prediction that resultant disclosure would be minimal. This risked wasting everyone’s time when I could obtain the already-released files directly from Hughes. Yet I wanted to push for disclosure as a matter of principle because I didn’t feel the Met should be allowed to ‘unrelease’ what they had freely released in the past.

I contacted my ICO case worker Carolyn Howe and explained this position. I said that I didn’t wish to pursue the Met for the files given the circumstances, but asked for her judgement in theory. If I insisted on disclosure, would she be likely to rule in my favour?

Howe kindly answered with the proviso that ‘these will be my own views and that the signatory to my decision notice may have challenged or over-ruled them. They are therefore only my opinion.’

She said that considering and redacting the contents of 19 folders would be overly burdensome for the Met and she would be likely to accept them refusing my request on those terms.

On the key question, Howe said that Hughes’ request ‘was dealt with when the legislation was in its infancy’. She added, ‘Were an error of judgement made by the MPS in its disclosure back in 2005 we would not necessarily compound that by ordering disclosure again.’

An ICO spokesperson officially confirmed this position. They stated that the interpretation of the FOI Act has developed since it’s introduction. They also said:

While your point on information being issued under FOI generally being considered to be issued “to the world at large” is a fair one, it is also true that each case must be taken on its own merits. The length of time between these two requests makes that particularly pertinent.

Turning to the specifics of this case, there is no obligation for public authorities to apply the section 23 exemption for information supplied by, or relating to, bodies dealing with security matters. If a public authority uses its discretion and does not apply section 23, it may still claim the exemption for the same information at a later date.  It’s relevant here to note that the section 23 exemption is absolute and not subject to the public interest test, and so the fact that it was in the public domain previously cannot have any impact on the application of the exemption.

Disappointed and defeated, I told The Guardian journalist Rob Evans about my FOI struggle for the Wapping files and its sorry conclusion.

Evans suggested, ‘What about putting the files online so everyone could see them?’

This seed of an idea germinated. Hughes generously agreed to share his documents and the Special Branch Files Project was born. This tedious battle inspired the whole enterprise.

The Wapping files are now part of this project, courtesy of Solomon Hughes.

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