The Detainee Report and the UK Government Flouting FOIA Law

Wednesday, 26 March 2014

Back in September, as I explained in a previous post, I filed a Freedom of Information Act (FOIA) request with the UK government in an attempt to obtain a long-withheld report on British spies' complicity in torture and extraordinary rendition. The government repeatedly ignored my requests — refusing to even acknowledge them, as obligated under the law — but finally published the report in December.

As I suspected it would, the so-called 'Detainee Inquiry' report shined a light on the dubious involvement of the UK's security services in brutal interrogation tactics and kidnapping methods carried out by US government operatives in the aftermath of the September 11 attacks. British agents, it found, were under no obligation to report breaches of the Geneva conventions and turned a "blind eye" to the torture of detainees held in foreign prisons.

The report was put together by the Detainee Inquiry as a preliminary report and, unfortunately, it only scratched the surface. Headed by retired judge Sir Peter Gibson, the inquiry was originally supposed to dig deep into the allegations of complicity in the abuses. However, it was postponed in 2012 amid controversy because the government said that it clashed with ongoing police investigations into some of the same cases. Justice Secretary Ken Clarke promised that an independent judge-led inquiry would continue in time, but the government suddenly pulled a policy reversal in December and now says the issues will be dealt with (or should I say, swept under the rug) by the largely toothless parliamentary intelligence and security committee — a move that has been strongly criticised by human rights groups, lawyers, and two United Nations special rapporteurs.

Aside from pointing to substance of the Gibson report, though, I wanted address something else here: that is, he dismal conduct of the government in ignoring my original request to obtain it. The Cabinet Office repeatedly failed to respond to my inquires for a period of about five months, even after the Information Commissioner's Office (ICO) got involved. (The ICO is the public body that enforces access to information legislation in the UK.) Under the terms of the FOIA law, the government should have responded to my initial request within 30 days. Instead, it chose not to respond at all — not even an acknowledgement; nothing. I've never experienced anything like that, and I have submitted quite a lot of FOIA requests in my time.

It seemed that the Cabinet Office was clearly flouting its legal obligations, so I decided to submit a formal complaint with the ICO. Last month, the ICO issued a "decision notice" in my case (see below), finding in my favour that the government broke the law under section 10 of the Freedom of Information Act by ignoring my request. The ICO threatened to pursue contempt of court action against the government in the High Court if it did not contact me within a further 35 days. Unsurprisingly, earlier this month, about a day before the deadline was due to expire, the Cabinet Office finally responded — claiming "oversights" were the cause of the long delay while having the cheek to open its letter by referring to my "recent" FOIA request. The request was submitted half a year prior.

Cabinet officials were contacted on several occasions about my request over this six-month period; they confirmed to the ICO over the phone that they had received it, and were then warned about potential "enforcement action." Yet they continued to not respond to me. It was not until the government was formally threatened with contempt in the decision notice that it acted. And by then, the Detainee Inquiry report that I was originally seeking had been released publicly anyway.

I have no idea whether the government deliberately ignored my request in a bid to delay releasing the report, so that it could release it later on its own terms. But frankly that does not seem like a far-fetched possibility, especially given that some public bodies, like London's Metropolitan Police, have admitted treating FOIA requests from journalists as "high risk" — even though all requests are supposed to be treated "applicant and motive blind." Either way, whether the failure to respond was calculated or just down to total incompetence, I have certainly not come away from this debacle with a sense that the government cares much about fulfilling its legal responsibilities in the realm of transparency.

For that reason, there is a satisfaction in seeing the government get reprimanded by the ICO for its unlawful conduct in this case. But ultimately there is a kind of depressing futility about the finding. The decision notice will go against the government — damaging the Cabinet Office's FOIA credentials with the Information Commissioner, especially if other cases such as this continue to stack up. (The Cabinet could be placed on the ICO's "monitoring programme" if it keeps egregiously flouting its FOIA obligations.) However, that doesn't really count for much in practice. I would like to see the ICO given much stronger powers to enforce compliance with FOIA law — the power to dish out heavy fines for flagrant violations and inexplicably extreme delays in responding to people. Otherwise it seems highly likely that the government and other public bodies will continue to be content to ignore requests whenever it suits them to do so.

UPDATE, 27 March 2014: As a commenter below has pointed out, it turns out that the Cabinet Office has in fact already been placed on the "monitoring programme" by the Information Commissioner's Office after "serious shortcomings" were identified in its responses to freedom of information requests. The ICO announced in January, while my complaint was still ongoing, that it would be examining the Cabinet's responses to requests received between 1 January and 31 March 2014. The ICO claims that "failure to show signs of improvement during this period may result in enforcement action."

1 comment:

  1. I'm afraid I wouldn't even see it as a reprimand from the ICO - the Cabinet Office certainly won't bother seeing it as such. They signed an undertaking with the ICO in 2011 to improve timescale compliance, but there is no real evidence that they ever did. And they are actually under current monitoring by the ICO http://ico.org.uk/news/latest_news/2014/cabinet-office-monitored-over-foi-response-times-23012014. The ICO has proper enforcement powers available (an enforcement notice - failure to comply with which can be certified as a contempt of court) but almost never wields them.

    One can speculate as to the reasons why.

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