Access to Public Information, National Security, Privacy, Data Protection and Retention
Bucur v. Romania
Closed Mixed Outcome
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After the United Kingdom Information Commissioner had denied access to a controversial report detailing intelligence activity during the period of sectarian political violence in Northern Ireland, the Police Service of Northern Ireland (PSNI) agreed to release a protectively redacted copy of the report to a Belfast-based non-governmental organization. The organization had sought access to the report in 2016 but both the PSNI and the Information Commissioner had held that as the report contained information from a security entity it fell within the exemption from disclosure in the Freedom of Information Act. The organization appealed the Commissioner’s decision, but before the appeal was held the parties reached the agreement, ensuring the Report’s release.
Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.
In January 2016, the Committee on Administration of Justice (CAJ), an independent non-governmental organization based in Belfast, sought access from the Police Service of Northern Ireland (PSNI) to a report produced by the then-Royal Ulster Constabulary (the RUC) in 1980 (para. 1). The CAJ indicated that the version of the Report they sought should have any personal information of individuals redacted in accordance with the Data Protection Act,1988 and the Freedom of Information Act, 2000.
The report the CAJ sought access to was the Walker Report – authored by MI5 officer Patrick Walker and commissioned by the PSNI’s predecessor, the RUC. It pertained to the interchange of intelligence between the RUC Special Branch (the Intelligence Division) and the RUC’s regular crime investigation detectives during the sectarian violence in Northern Ireland. The report’s existence had only been revealed in 2001. The Report revealed the wide-ranging powers of Special Branch to prioritize recruiting terrorist informers and the directive issued to detectives of the RUC to not arrest a suspected terrorist without consulting Special Branch. The effect of this practice was that individuals serving as British agents – passing on information to the British intelligence service – had also been involved in murders, bombings and shootings in Northern Ireland, and it also meant that Northern Irish detectives had been outranked by Intelligence officers when investigating incidents of crime in Northern Ireland.
In response to CAJ’s January 2016 request, the PSNI indicated that it did have the requested information but that it was exempt from disclosing it under section 23(1) of the Freedom of Information Act, 2000. Section 23 of the Act exempts from disclosure information held by public bodies which was provided to them by an entity responsible for security matters. These security bodies from which information is exempt are listed in section 23(3) of the Act but the RUC Special Branch is not included.
On March 3, 2016, the CAJ requested an internal review, and after the PSNI indicated on May 10, 2016 that the review upheld the initial decision to refuse the request, the CAJ approached the Information Commissioner to review the PSNI’s decision.
The central issue in the case was whether PSNI was obliged to disclose the Walker Report or whether the information contained in the report was received from a body identified in section 23 of the Act, and so whether the report was exempted from public disclosure.
The CAJ argued that the information did not fall within the section 23 exemption as the source of the information was the RUC Special Branch and this was not one of the bodies listed in section 23. The CAJ submitted that the refusal to provide access to the report constituted a disproportionate interference in the right to receive official documents of public interest under article 10 of the European Convention on Human Rights.
The PSNI argued that the exemption in section 23 should be extended to the Special Branch.
The Information Commissioner ruled in favor of PSNI and held that the Walker Report did fall under the exemption in Section 23(3). The Commissioner relied upon a decision of the First Tier Tribunal in the case of Metropolis v. Information Commissioner Appeal No. EA/2010/0117 which had held that although the Special Branch is not one of the bodies listed in section 23(3), it works closely with other section 23(3) security bodies and so, on the balance of probabilities, any information relating to the work of Special Branch would relate to a section 23(3) body.
Accordingly, the Information Commissioner upheld the PSNI’s decision to not release the report to CAJ on the grounds that it contained information that was exempt under section 23(3).
CAJ then filed an appeal before the First Tier Tribunal (General Regulatory Chamber, Information Rights). However, proceedings in the appeal were adjourned on May 1, 2018 – the day the appeal was due to be heard – after the CAJ, the PSNI and the Information Commissioner came to an agreement under which the PSNI would disclose a redacted copy of the report to the CAJ within seven days of the signing of the agreement. The CAJ did not withdraw the appeal before the First Tier Tribunal, and agreed to refrain from publishing or otherwise placing the Report in the public domain until the Appeal process had been completed or a period of three months had passed. Through this agreement, the CAJ obtained much of the relief sought – the disclosure of the Walker Report – although the Report it received was redacted. The appeal before the Tribunal is continuing and CAJ is seeking access to the full, unredacted report which will provide information on the arrest and interrogation policy in 1980.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although the Information Commission held that the Walker Report should not be disclosed because it contained information provided from a security body which was exempted from the obligation to provide access to information, the agreement reached between the parties expands expression as it makes a confidential and controversial security report from 1980 accessible to the general public. However, as access to the report was achieved through a settlement rather than through a legally-binding decision from an administrative body there is no legal precedent set which could be relied upon in the future.
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