Is Home Secretary prepared to break the law to avoid disclosure?

If only that headline was unique it would be some story, writes Neil Wilby.

Regrettably, the United Kingdom presently has the worst (and most palpably lawless and morally bankrupt) Secretary of State for the Home Department in its history.

No mean feat when one considers that previous hapless incumbents have included Jack Straw, David Blunkett and Amber Rudd.

Since her surprising re-appointment to the Cabinet in July 2019, Priti Patel, has staggered from crisis to crisis, scandal to scandal. Dominating broadcast and print headlines on an almost daily basis.

Less surprising one might say given her recent history in high office, which included a forced resignation from the Cabinet, in 2017, over ‘secret meetings’ with Israeli officials, including prime minister Benjamin Netanyahu.

In her resignation letter, Ms Patel said her actions “fell below the standards of transparency and openness that I have promoted and advocated”. Which, in the context of what has emerged since, and the subject matter of this article, was a very bold statement to make.

The Prime Minister at the time, Theresa May, said her decision was “right” to seek Ms Patel’s resignation as “further details have come to light”.

Shortly after taking up the post of Home Secretary, she said she wanted criminals to “literally feel terror” at the thought of breaking the law.

More recently, a Cabinet Office inquiry into her conduct found that Ms Patel had “unintentionally” breached the ministerial code in her behaviour towards civil servants.

The information request

On 12th, September, 2021 this access request was made under the Freedom of Information Act, 2000. It has a very specific purpose, which will become clear as the process unfolds, and is conjoined with another request made to Her Majesty’s Inspectorate of Constabulary (read here):

“Please disclose the following information by way of the Freedom of Information Act, the materials requested concern the placing of Greater Manchester Police into ‘Special Measures’ – a decision that appeared to enter the public domain on 19th December, 2020:

“1. The dates of any meetings, video or telephone conferences between Her Majesty’s Inspector of Constabulary, and/or the Secretary of State and/or the Policing Minister where the subject matter included, inter alia, the performance of Greater Manchester Police, its efficiency or effectiveness, the placing of the force into Special Measures.

“The relevant period is 1st July, 2020 until 31st August, 2021

“2. Any letter, email or briefing note relating to same.

“The relevant period is 1st July, 2020 until 31st December, 2020.

FOIA requests to public authorities, according to Guidance issued by the Information Commissioner’s Office, should be treated neutrally:

‘We wish to emphasise at this point that the Freedom of Information Act is applicant and motive blind. A disclosure under FOIA, is a disclosure to the public [ie the world at large]. In dealing with a Freedom of Information request there is no provision for the public authority to look at from whom the application has come, the merits of the application or the purpose for which it is to be used.’

This, however, is not always how those same public authorities regard the position. Particularly, the policing bodies and police forces to whom many of the requests from this quarter are made. Apart from treating the statutory regulator with scarcely concealed disdain, they very much play the man, not the request.

Delay and obfuscation then becomes the order of the day as they try to work out if the requested disclosure will cause reputational harm. Oblivious to the concept that, potentially, even more damage is caused by ducking the issues.

The first internal review request

In July 2018, the Cabinet Office published a new Code of Practice under section 45 of FOIA (read here). This deals with, amongst other matters, (i) Time limits for responding to information requests, suggesting that it is generally best practice to only extend the timescales, where further time is required to consider the public interest test, for no more than a further 20 working days. (ii) Internal Reviews, or in other words the right to complain, reminding public authorities it is best practice to have an internal review process in place and providing guidance on the timescales within which internal reviews should generally be accepted and responded. Almost universally, 20 working days.

On 11th October, 2021, it was necessary to make an internal review request (IRR) to the Home Office as the 20 working day limit for finalisation of the request had expired.

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

“I am writing to request an internal review of Home Office’s handling of my FOI request ‘Greater Manchester Police – Special Measures’.”

“The Act requires a public authority to respond PROMPTLY and, in any event, within 20 working days. The Information Commissioner in her Guidance, is very clear that the 20 working day limit is a backstop and not, as the Home Office appear to interpret, a target date.

“As such, there is a breach of section 10 and 17 of the Act.

“The instant request, plainly expressed, presents little or no administrative burden on either the caseworker or the relevant business area. It is profoundly disappointing, in those circumstances and in a matter of the highest public interest, that the Secretary of State has chosen to break the law rather than disclose the requested information.

It received an almost immediate response, on the same day as the review request, not once but twice.

Firstly:

“Please be aware that we are processing this [complaint] as a formal Time Complaint regarding your active FoI request, case ref.: 66012.

“This has been assigned to a caseworker who will aim to send you a full response by 25/10/2021 which is ten working days from the date we received your request.

“If you have any questions then please do not hesitate to contact us”.

Secondly:

“We are considering your request. Although the FOIA carries a presumption in favour of disclosure, it provides exemptions which may be used to withhold information in specified circumstances.

“Some of these exemptions, referred to as ‘qualified’ exemptions, are subject to a public interest test. This test is used to balance the public interest in disclosure against the public interest in favour of withholding the information. FOIA allows us to exceed the 20 working day response target where we need to consider the public interest test fully.

“The information which you have requested is being considered under the exemption in
section 35 of the FOIA, which relates to the formulation or development of government
policy. This is a qualified exemption and to consider the public interest test fully we need to extend the 20 working day response period. We now aim to let you have a full response by 8th November (the year was not specified)”.

Two days later, to complete the flurry of action, a third response was received from the Home Office, from the third different civil servant involved in the request. Manpower does not appear to be an issue:

“Whilst conducting a review of your case I now understand the business area dealing
with your case informed you on 11th October 2021 they are considering your request
subject to a public interest test. This allows them to exceed the 20 working day
response target to consider the public interest test fully and will now aim to let you
have a full response by 8th November 2021”.

It is not a response that could be regarded as section 45 compliant and also reveals the mindset of almost every public authority in the country that is subject to FOIA: 20 working days is a ‘target date’, not a backstop. However, in terms of proportionality the issues the response to the first internal review request discloses are not worth pursuing.

The second internal review request

On 15th October, 2021 a further review was requested, in effect both challenging the section 35 exemption in respect of part 1 of the request which concerns only calendar dates and making submissions regarding the public interest test viewed from a journalist’s side of the scales:

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

“I am writing to request a second internal review of Home Office’s handling of my FOI request ‘Greater Manchester Police – Special Measures’. This is concerned with the communication from Mr Wheeler in the Central Management Unit.

“These are the grounds of complaint:

“1. The exemption relied upon by the Home Office, section 35, is in four parts. It is assumed for the purposes of the review request that s35(1)(b) is in issue.

“2. It is inconceivable that the disclosure sought in part 1 of the request, concerning only dates of meetings, could fall under this exemption. It supports the overarching view, respectfully submitted, that a pre-formed decision was made not to disclose, or to delay disclosure, of any part of the request and seeking to apply section 35 to this class of data was simply a convenient staging post.

“3. In terms of the public interest test about to be undertaken by the Home Office, these are matters that should be weighed appropriately in the scales:

“a. There is no automatic public interest in withholding information
under any Section 35 exemption.

“b. The presumption, under the Act, is for disclosure to be made unless there are compelling reasons otherwise. It is incumbent on the Home Office to very carefully set out their reasoning, in a cogent form, if the request is to be refused.

“c. The essential element in section 35 (1)(b) is communications between ministers and any information relating to those communications. In this request there are no such communications. The disclosure sought is between a Minister (the Home Secretary) and policing bodies.

“d. Notwithstanding, if it is section 35 (1)(a) upon which the Home Secretary relies, concerning formulation of government policy and creating a safe space for decision making, these would be my submissions:

(i) The disclosure sought is very specific. It relates to arrangements of inspections carried out by the criminal justice inspectorate. It does not, and cannot, relate to government policy, nor it is realistic to infer that safe space would be required for the class of decision making, if any at all, that would be made in such meetings or notes relating thereto.

(ii) The question of sensitivity, in matters concerning a police force, and its troubles, that has received an avalanche of publicity on network television, and the regional and national press, is one that is hard to envisage.

(iii) It is difficult to conceive, moreover, that any decisions in the communications sought for disclosure have any impact at all on government policy. The discussions on the topic of future inspections of GMP are unlikely to be at a level of frankness that would frustrate disclosure.

(iv) The important policy decision concerning Greater Manchester Police has already been made. The force was placed into Special Measures by the Home Office on 19th December, 2020. The incumbent chief constable departed soon afterwards, as a result. There is no greater sanction that can be applied to a police force. The present chief constable has a well developed – and published – improvement plan. It is also trite that he is operationally independent of all of the Home Office, HMICFRS and the Greater Manchester Mayor.

(v) There is a welter of other information already published by all of Home Office, HMICFRS and the Greater Manchester Mayor concerning the out-turn from inspections by the ‘watchdog’.

(vi) There is strong, one might even say overwhelming, public interest in knowing the programme of future HMICFRS inspections at GMP”.

As soon as the outcome of the Home Office’s public interest test is known it will be reported here.

In the conjoined request to HMICFRS, on the topic of Greater Manchester Police and Special Measures, the criminal justice watchdog is similarly reluctant to disclose but relies on different exemptions, sections 33 (audit function) and 36 of FOIA (prejudice to conduct of public affairs), with both, again, requiring a public interest test.

At this stage, both of these freedom of information requests have the look and feel of test cases that will be ultimately settled before an information rights tribunal judge.

Page last updated at 0555hrs on Friday 15th October, 2021

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