Answers to 4 FOI Questions - the rest were not answered

By Tony Bennett - September 2010

A brief summary of responses received today from the Home Office by those of us who asked the 12 FOI questions back in March.

The full reply is on a pdf. which I can't upload and in any event is long, running to 5 pages in all.

In summary, the first four questions have been answered in the following terms:

1. Dr Gerald and Dr Kate McCann met with Home Office Minister Alan Johnson on an undisclosed date in October 2009.

2. Also present at that meeting were the following:

a) Two member's of staff from 'The Minister's Private Office' and

b) one 'Home Official Official.

3. The Home Office did not disclose one way or the other whether the McCanns were accompanied or represented by anyone at this meeting.

4. The Home Office say that there were no other meetings between:

a) The McCanns, the Home Office Minister and/or any Home Office staff, or

b) Any representatives of the McCanns and the Minister and any Home Office staff...

...between the October 2009 meeting and the date of my letter, viz. 19 March 2010.

The answers to all the other questions (Nos. 5 to 12 below) have been denied, under one or more of the following provisions:

1. The Freedom of Information Act 2000 Sections 31(1) (a) and 31(1)(b)
2. The Freedom of Information Act 2000 Section 36(2) (b)(i) and 36(2)(b)(ii)
3. The Freedom of Information Act 2000 Section 40 (2)
4. The Data Protection Act.

In broad terms, these sections cover:

a) information relating to a past or current police investigation, the majority of which is normally exempt from disclosure,
b) information regarded as 'not in the public interest' to disclose, and
c) personal information relating to a living person.

There is also a reference to the McCanns' expectation that their meeting with the Home Secretary would be 'private'.

The letter concludes, as is required by law, a list of 'considerations in favour of disclosure' and equally a list of 'considerations against disclosure. As you'll see when the full letter is disclosed, the arguments for and against disclosure of information are very finely balanced.

I will publish the full response here wehn I can although several others have got identical replies and someone more technically-minded will almost certainly beat me to it.

The letter outlines the procedure for this decision to be reviewed. as it took 6 months bar 6 days to get a reply, I am not sure how long that procedure will take. Specific reasons under the FOI Act have to be given for seeking a review.

If the review still does not produce a satisfactory reply, the applicant for information has the right to apply to the Information Commissioner, based in Wilmslow, Cheshire.

Two further points.

The 16 additional questions I asked on 17 and 22 June and 13 July have not yet even been given a case reference number, let alone answered.

Finally, why did it take close on 6 months to dislcose just this extremely limited information?

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

THE 12 FOI ACT QUESTIONS TO THE HOME OFFICE ASKED ON 19 MARCH 2010:

1. On what date or dates has the Home Secretary Alan Johnson had meetings with one or both of the McCanns?

2. Who else was present at these meetings: in particular, was any lawyer or othert adviser for the McCanns present?

3. On what dates did meetings take place between one or both of the McCanns and staff of the Home Office?

4. Please identify all the staff who met with the McCanns and again identify whether the McCanns had legal or other representatives with them.

5. On what date did the McCanns first approach the Home Office asking for a review or re-investigation by a British police force into Madeleine’s disappearance?

6. Is the Home Office carrying out what the Daily Telegraph called ‘a scoping exercise’ to evaluate what form any review or re-investigation into Madeleine’s disappearance may take’ and, if so, on what date did that scoping exercise
commence?

7. Why, according to the press, was Chief Executive of the Child Exploitation and Online Protection Centre, Mr Jim Gamble, given the role of advising the Home Office as to which police force should carry out any review or re-investigation?

8. On what date did the Home Secretary ask Mr Gamble to perform this role?

9. On what date did Mr Gamble make his recommendation?

10. Did he, as reported, recommend West Yorkshire Police to carry out a review or re-investigation?

11. Has West Yorkshire Police, as reported, been asked to carry out a review or re-investigation into the disappearance of Madeleine McCann?

12. If so, what is the brief or remit that the Home Office has given to West Yorkshire Police?

Discussion here: https://jillhavern.forumotion.net/t1396-answers-to-4-foi-questions-the-rest-were-not-answered

By Sharonl - September 2010

Our Ref: 14425

09 September, 2010

Dear Ms Lawrence

Thank you for your e-mail of 21 March, 2010 in which you ask for the following
information

1. On what date or dates has the Home Secretary Alan Johnson had meetings
with one or both of the McCanns?

2. Who else was present at these meetings: in particular, was any lawyer or other
adviser for the McCanns present?

3. On what dates did meetings take place between one or both of the McCanns
and staff of the Home Office?

4. Please identify all the staff who met with the McCanns and again identify
whether the McCanns had legal or other representatives with them.

5. On what date did the McCanns first approach the Home Office asking for a
review or re-investigation by a British police force into Madeleine’s
disappearance?

6. Is the Home Office carrying out what the Daily Telegraph called ‘a scoping
exercise’ to evaluate what form any review or re-investigation into Madeleine’s
disappearance may take’ and, if so, on what date did that scooping exercise
commence?

7. Why, according to the press, was Chief Executive of the Child Exploitation and
Online Protection Centre, Mr Jim Gamble, given the role of advising the Home
Office as to which police force should carry out any review or re-investigation?

8. On what date did the Home Secretary ask Mr Gamble to perform this role?

9. On what date did Mr Gamble make his recommendation?

10. Did he, as reported, recommend West Yorkshire Police to carry out a review or
re-investigation?

11. Has West Yorkshire Police, as reported, been asked to carry out a review or
re-investigation into the disappearance of Madeleine McCann?

12. If so, what is the brief or remit that the Home Office has given to West
Yorkshire Police?

Your request has been handled as a request for information under the Freedom of
Information Act 2000 (FOI) and we can now provide you with a substantive
response to your request.

I can confirm that the then Home Secretary met Mr and Mrs McCann in October
2009. Also present were two members of the Minister’s Private Office and a
Home Office Official. There were no subsequent meetings between Home Office
Ministers or Home Office officials and Mr and Mrs McCann or any representative
acting on their behalf, between then and the date of your letter.

I confirm that the Home Office holds some information relevant to remaining parts
of your request but that, other than the information provided above, we consider
that information to be exempt from disclosure under sections 31(1)(a) and (b),
s.40(2) and s36(2)(b)(i) and (ii) of the Act.

Furthermore, we neither confirm nor deny that we hold any further information by
virtue of Section 23(5) - information relating to an organisation listed in Section
23(3) of the Act. Section 23 confers an absolute exemption from our duty under
section 1(1)(a) of the Act and does not require any further consideration. This
response should not be taken as conclusive evidence that the information you
have requested is or is not held by the Home Office.

The general policy of the Home Office is not to disclose to a third party, personal
information about another person. Section 40(2) of the FOI relates to the handling
of personal information under the Data Protection Act. The Home Office has
obligations under that Act, and in law generally, to protect the personal data that it
holds. Mr and Mrs McCann would have had a legitimate expectation that any
meeting with the Home Secretary was a private meeting. We have therefore,
concluded that such information as you have requested which relates to Mr and
Mrs McCann’s participation in the meeting and any views or opinions expressed, is
exempt from disclosure under section 40(2) of the FOI, on the grounds that the
such disclosure would breach the first Data Protection Principle in that it would
constitute unfair processing of their personal data. The same exemption applies in
relation to the details of Home Office officials present at the meeting. Section
40(2) is an absolute exemption and does not require any further consideration.
Section 31(1)(a) provides that information is exempt if its disclosure would or
would be likely to prejudice the prevention or detection of crime, and section
31(1)(b) if it would potentially prejudice the apprehension or prosecution of
offenders, and (in both cases) the public interest falls in favour of applying the
exemption.

Sections 36(2)(b)(i) and (ii) apply to information which, in the reasonable opinion of
a qualified person, would if disclosed, be likely to inhibit the free and frank
provision of advice, or the free and frank exchange of views for the purpose of
deliberation. Section 36 is also subject to the supporting arguments of a public
interest test.

Consideration of the public interest test in relation to these elements of the Act is
detailed in Annex A.

If you are dissatisfied with this response you may request an independent internal
review of our handling of your request by submitting a complaint, within two
months, to the address below, quoting the reference number at the top of this
letter:

Information Access Team
Home Office
Ground Floor, Seacole Building
2 Marsham Street
London
SW1P 4DF

Alternatively you can e-mail: foirequests@homeoffice.gsi.gov.uk
If you ask for an internal review, it would be helpful if you could say why you are
dissatisfied with the response. As part of any internal review the Department's
handling of your information request will be reassessed by staff who were not
involved in providing you with this response. If you remain dissatisfied after this
internal review, you would have a right of complaint to the Information
Commissioner as established by section 50 of the Freedom of Information Act.
I apologise for the very long delay in replying to your request owing to the need to
apply and fully consider the public interest test in this case.

Yours sincerely,

Ian Lister

Information Access Consultant
On behalf of the Home Office Police Powers and Protection Unit (PPPU)

ANNEX A

PUBLIC INTEREST CONSIDERATIONS
Except where otherwise stated in the covering letter we consider the information
requested to be exempt from disclosure under section 31(1)(a) and (b), and
section 36(2)(b)(i) and (ii) of the Freedom of Information (FoI) Act.
Section 31(1)(a) provides that information is exempt if its disclosure would
prejudice the prevention or detection of crime and subsection (1)(b) provides that
information is exempt if its disclosure would or would be likely to prejudice the
apprehension or prosecution of offenders. Since this case remains unresolved,
disclosure of information that might be of assistance to anyone involved in the
disappearance of Madeleine McCann, disclose law enforcement tactics or lines of
enquiry or potentially prejudice the ability to pursue a prosecution would be
prejudicial to such law enforcement activities.

Section 36(2)(b)(i) and (ii) provides that information is exempt from disclosure if in
the reasonable opinion of a qualified person such disclosure would be likely to
inhibit the free and frank provision of advice, or the free and frank exchange of
views for the purpose of deliberation. In this case the qualified person is the
Attorney General. It is a central tenet of public administration that ministers and
officials should be able to exchange views and advice freely in the interests of
devising policies and reaching sound decisions. Anything likely to limit or interfere
with the ability or willingness of those involved to conduct business in this way
would be detrimental to the good conduct of public affairs.

All three of these exemption provisions confer a qualified exemption which
requires the supporting arguments and consideration of a Public Interest Test
(PIT).

The Public Interest Test
This test is used to balance the public interest in disclosure against the public
interest in favour of withholding the information, or the considerations for and
against the requirement to say whether the information requested is held or not.
We must carry out a public interest test where we are considering using any of the
qualified exemptions in response to a request for information.

The ‘public interest’ is not the same as what interests the public. In carrying out a
PIT we consider the greater good or benefit to the community as a whole if the
information is released or not. The ‘right to know’ must be balanced against the
need to enable effective government and to serve the best interests of the public.
The FOI Act is ‘applicant blind’. This means that we cannot, and do not, ask about
the motives of anyone who asks for information. In providing a response to one
person, we are expressing a willingness to provide the same response to anyone,
including those who might represent a threat to the UK.

Considerations in favour of disclosing the information
With regard to Section 31(1)(a) and (b), there is a significant and ongoing public
interest in the fate of Madeleine McCann and by extension to activity by any
individuals or organisations who might be involved in considering or investigating
the circumstances of her disappearance. There are potential benefits in keeping
the case in the public domain in general since information provided as a
consequence by a member (or members) of the public may be instrumental in
generating new lines of enquiry. There may for similar reasons be specific
advantage in keeping the public informed as to significant ongoing developments
and law enforcement activity since this may trigger fresh recollections and new
information.

More generally, it is important to maintain public confidence in our law
enforcement agencies. Providing information about steps that have been, or may
be, taken in a high profile investigation might serve to keep the public better
informed about the work of the police and other law enforcement agencies and
thereby provide reassurance as to the policies or actions being adopted. Such
steps would also serve to correct any mistaken or misleading reporting in the
media or other sources, and thereby provide more accurate information against
which the public might reach judgements about official actions.

With regard to Section 36(2)(b)(i) and (ii), in general, there is a legitimate public
interest in knowing how issues of public interest are considered and decisions
reached by ministers and what advice may be available to, or provided to them, to
assist with that. Greater transparency in the mechanics of government, and
consideration and decision making processes may assist in better informing the
public about such issues and thereby raise public confidence in general
governance issues. Such arguments would also apply to this particular case given
the very high degree of public interest in the fate of Madeleine McCann.
Considerations in favour withholding the information

With regard to Section 31(1)(a) and (b) some of the same considerations as
mentioned above also weigh against disclosure. This is a high profile case which
has generated wide spread media reporting and speculation, not only in this
country, but internationally.

The questions asked relate to potential police tasking and operational decisions in
what remains an ongoing missing person case. Making public details of what
actions or activities law enforcement agencies may have taken or may consider
taking in future would effectively mean operational policing decisions being played
out in public and provide an ongoing commentary on progress or lack thereof. If
widely reported, this in turn would alert any individual involved in Madeleine’s
disappearance to potential lines of investigation, thereby compromising such
activity. In some circumstances it could also hamper communication between law
enforcement agencies, or compromise planned activity or enquiries by various law
enforcement agencies which might have an interest or role in this case either in
this country or abroad. Publicity may also prejudice potential future prosecutions.
With regard to Section 36(2)(b)(i) and (ii) similar arguments apply. It is not in the
public interest to compromise the ability of Ministers or other officials to discuss,
speculate, form opinions, and explore options in private. Particularly in complex or
sensitive cases, such considerations should be capable of being as full and frank
as possible without the prospect that they might be open to public scrutiny,
speculation or criticism, especially where they are exploratory in nature. The
prospect that personal comments, questions, opinion or ideas could be made
public would be likely to hinder the effective conduct of public affairs by inhibiting
those whose views were sought, thereby stifling free discussion and debate and
the offering of a full range of impartial advice or options for action. Such interests
are heightened where they touch on sensitive matters including individuals and
personal circumstances.

We conclude therefore that, while there remains a strong and legitimate public
interest in this case and in the steps being taken to find Madeleine McCann,
revealing specific or speculative details of potential law enforcement activity in
relation to the case, or details of governmental or departmental involvement in its
consideration, would be prejudicial to its handling. The balance of the public
interest therefore lies in withholding the information.

August 2010

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