4th Report - Session 1999-2000
4.1 Mr M complained that MOD had refused to supply him with information which he believed he was entitled to under the Code of Practice on Access to Government Information (the Code). My investigation began in June 1999 after I had obtained comments from the Permanent Secretary at the MOD.
4.2 On 13 August 1998, Mr M wrote to MOD asking for copies of the Mid-Year and End-Year Performance Reports on MOD which had been discussed at meetings of the Defence Council on 27 November 1997 and 20 July 1998 respectively. MOD replied on 10 September. They told him that the documents he had requested were internal planning documents and contained information whose disclosure would harm national security or defence. They cited Exemption 1 and Exemption 2 in Part II of the Code. MOD told Mr M that they published an annual 'Departmental Performance Report' through the Stationery Office which contained much of the information appearing in their internal reports, together with information on the performance and activities of the Department of interest both to Parliament and to the general public. They told Mr M when the 1996-97 report had been published (Ministry of Defence Performance Report 1996-97 Cm 3781) and said that the 1997-98 report (Ministry of Defence Performance Report 1997-98 Cm 4170) was due to appear in the autumn of 1998: they told him how to obtain copies of these reports. MOD explained to Mr M that he had the right to ask them to review their refusal of his request and drew attention to the role of this Office if the review did not result in the release of the information requested.
4.3 On 20 August, Mr M separately asked MOD for copies of End-Year Performance Reports for the Royal Air Force (RAF) for both 1996-97 and 1997-98. MOD replied on 14 September refusing his request, again citing Exemption 1 and Exemption 2. They also referred him to their annual Departmental Performance Reports for the relevant years and of his right to appeal against their decision.
4.4 On 11 and 14 December respectively Mr M wrote to MOD asking them to review their refusal of each of his information requests. MOD replied on 15 January 1999 to both letters, maintaining their refusal and giving further justification for their decision in respect of the two exemptions previously quoted. MOD said that they had considered whether or not it would be appropriate to release edited versions of the documents to Mr M but had concluded that all the information they were able to disclose was already in the public domain. They advised Mr M of his right to submit a complaint, through a Member of Parliament, to this Office.
4.5 Commenting on the complaint in a letter dated 27 May 1999, the Permanent Secretary said that Mr M's complaint had been properly handled in accordance with the Code. The withholding of information had been justified in terms of the Code exemptions cited, and details of the appeals process had been provided. In addition, replies had been sent to Mr M in accordance with the Code target of 20 working days. Finally, Mr M had also been advised as to where he could find published material which included details of the Department's performance. He went on to confirm the view of MOD that the following Code exemptions were applicable to the information being sought by Mr M:
(i) Exemption 1: Defence, Security and International
relations:
a) Information whose disclosure would harm
national security or defence.
b) Information whose disclosure would
harm the conduct of international relations or affairs.
c) Information received in confidence
from foreign governments, foreign courts or international organisations.
(ii) Exemption 2: Internal discussion and
advice
Information whose disclosure would harm
the frankness and candour of internal discussion, including:
a) proceedings of Cabinet and Cabinet committees;
b) internal opinion, advice, recommendation,
consultation and deliberation;
c) projections and assumptions relating
to internal policy analysis; analysis of alternative policy options
and information relating to rejected policy options;
d) confidential communications between
departments, public bodies and regulatory bodies.
4.6 To support the exemptions cited, the Permanent Secretary drew attention to features of the contents of each of the documents which Mr M had asked for:
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Departmental Mid and End-Year Performance Reports 1997:
With regard to Exemption 1, he said that both reports contained details of the operational readiness of elements of the Armed Forces which could be used to project current and future operational capabilities. This information could be useful to a potential adversary. In addition, both reports contained sections giving details of operational audits which also required protection. In addition, the reports contained frank and candid assessments of a range of current issues faced by the Armed Forces as well as details about Departmental performance. The Permanent Secretary said that the information would have been written in a different way if it had been understood that the contents would be published, and the reports would have been less useful as a result.
RAF End of Year Reports 1996-97 and 1997-98:
In support of the two exemptions cited, the Permanent Secretary said that both of these reports contained sensitive details about particular operational areas.
In his letter, in support of Exemption 1, he said;
"Release of the reports individually would afford the reader an insight into both the capability and readiness of the RAF which might be of use to a potential adversary. When analysed together, this might be extended to develop a detailed understanding of current trends and hence likely future capability".
In support of Exemption 2, he said; "These reports are robust and hard hitting...(and) are useful precisely because of their candour. They were not prepared on the basis that they should be made available to the general public, and would have been very different and less useful documents had this been the case".
4.7 He went on to say that MOD were not using the exemptions in "blanket fashion"; each case was dealt with on its individual merits. MOD instructions required staff to work on the assumption that information should be made available. He confirmed that consideration had been given to blanking out the information considered sensitive and potentially harmful, despite the fact that the Code only required them to release information as opposed to documents. However, this option was not ultimately considered because a considerable amount of material would require removal, diminishing the sense of what was left, and because information relating to the Department's performance was already available in published form. Back to top
Assessment
4.8 In response to Mr M's two separate requests for information (on 13 August 1998 and 20 August 1998), MOD responded on 10 September 1998 and 14 September 1998 respectively, indicating why the information sought had been withheld and citing the Code exemptions under which they had withheld it. MOD also explained that much of the information sought by Mr M was contained in their annual 'Departmental Performance Report' and they provided him with the publication details. They also told him the procedure for appealing against their decision. Mr M wrote on 11 and 14 December 1998 and asked the MOD to review their decision in respect of both requests. On 15 January 1999, the MOD responded on a similar basis, maintaining their refusal while providing a fuller explanation for it. Mr M was also advised of his right, if he remained dissatisfied, to submit a complaint, through a Member of Parliament, to this Office. Before considering the substantial question of the information requested, it is clear to me that MOD handled the matter in full accordance with the requirements of the Code, and for this I commend them.
4.9 I have examined very carefully the Mid-Year and End-Year Performance Reports for 1997 and the RAF End of Year Performance Reports for 1996-97 and 1997-98. I have also examined the two published Departmental Performance Reports to which Mr M was referred as an alternative source of information. In particular, I have sought to establish; a) what has been included in the published reports; b) what has been omitted, and; c) what justification under the Code, if any, is there for continuing to withhold from Mr M information at b)? I consider first the Mid-Year and End-Year Performance Reports.
4.10 What, in the first instance, do these reports contain? Briefly, they set out progress in achieving the nine Departmental Standing Objectives which make up the Departmental Plan for 1997. These objectives, between them, in effect incorporate the full range of Departmental activity. The two published reports (see paragraph 2) are structured in much the same way, using many of the same headings and referring to the same objectives: in some cases, the wording of the internal document has been reproduced verbatim in the published report. In other instances however, while the published reports contain a paraphrase of the information in the internal document, specific details or surrounding comment from the source document has been excluded. In other cases information found in the source document does not feature in the published reports at all. I note that the two internal documents are protected by a security classification ('Confidential') and are described as having a limited circulation within MOD.
4.11 Much of the information contained in the internal documents has already been included in the published reports and I should take this opportunity of emphasising that entitlement under the Code is to information only, not to documents. The information not included falls into two broad categories. The first, which MOD have sought to protect under Exemption 1, consists primarily of detailed information relating to the state of the Armed Forces; the nature of certain operations the Armed Forces have carried out, and the development of new weapons systems and equipment. The second category of information can be described as comment and opinion, sometimes of a candid nature, about not only the matters which MOD seek to protect under Exemption 1 but other matters as well. MOD have sought to withhold this information under Exemption 2. Both of these exemptions incorporate a harm test.
4.12 In considering the harm test it is important to stress two factors. The first is that the potential for harm should be balanced against the public interest in making the information available. The second is that the potential for harm has to be considered at the time of the proposed disclosure: it is not right to apply the test to the possibility of disclosure at the time the information was created. This approach recognises the fact that, generally speaking, the harm that might be caused through the disclosure of information will diminish with the passage of time. In this context, I note that the majority of the information in the documents in question relates to an assessment undertaken at least 18 months ago.
4.13 I then considered the applicability of Exemption 1 to the information which these two reports contain, primarily that part of Exemption 1 which deals with matters of national security or defence. It is self-evident that a confidential report on the activities of MOD is going to consist largely of information related to matters falling potentially within the scope of this exemption. Much, though, has found its way into the published reports. That which remains undisclosed consists primarily of information about, for example; the state of morale in the Armed Forces; the level of performance, location and state of readiness of different elements of those forces, and progress in the development and production of new weapons systems and equipment. There is also information relating to nuclear capability and to security and intelligence matters. It might be argued that this information is simply factual; it is also now, to some extent, a matter of historical record. It is, however, clear to me that the sensitivity of some (but not all) of the information is such that harm could be caused to defence and national security if it were made widely available, even allowing for the considerable public interest that might justify making that information more widely known.
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4.14 Much of the material which, in my view, comes within the scope of Exemption 1 is also covered by Exemption 2, in particular that part of Exemption 2 which relates to the candour of internal discussion, especially in terms of opinion and recommendation. Comments of a frank nature are made about some of the topics covered by Exemption 1 as well as other matters. These comments often relate to the future, in terms of the potential outcomes of particular activities and projections as to how matters are likely to look, often well into the next century. I recognise the strength of the argument that the value of such opinions, which depend upon candour for effectiveness, would be substantially less useful if it were thought they would be made available to a wider audience. It is on this basis that I accept that some, although by no means all, of the internal comment and advice contained in these reports should remain withheld under Exemption 2.
4.15 It is, however, my view that a substantial amount of information in these two reports can be released to Mr M. I have given some thought to the question of whether or not it would be helpful for the complainant to have an edited version of the reports with withheld paragraphs simply blocked out (an approach MOD considered but rejected). While recognising that this is one way of presenting information I have taken the view, particularly since the Code requires the release of information rather than specific documents, that it would be acceptable for the MOD to provide retyped versions of these reports containing within them all the information which in my view should be released. This includes all the information already in the public domain and is on the understanding that, in respect of the information which is to be released, the original wording of the reports is used. I should add that, in respect of those paragraphs for which I have recommended release, in nearly all cases I have recommended the release of the full paragraph: only in one or two cases have I taken the view that parts of a paragraph should be withheld.
4.16 I now turn to the two reports covering the RAF; these are the 'End-Year Performance Reports' for both 1996-97 and 1997-98. As might be expected, these two documents provide a full assessment of the performance of the RAF during these periods. Some of the information contained in these two reports I have considered in the preceding paragraphs and some, of course, is incorporated in the published documents to which I have made earlier reference. The two RAF reports are also protected by security classifications (in this case 'Confidential' and 'Secret' respectively) and received only a limited circulation within MOD. MOD have sought to apply both Exemption 1 and Exemption 2 to the information in these documents on essentially the same basis as they were applied to the Departmental reports: the difference is that, as these documents concern only one Service, there is a greater degree of detailed information included within them.
4.17 The information MOD have sought to protect under these two exemptions is similar to that considered earlier in paragraphs 4.13 and 4.14. The reports examine in detail; RAF expenditure; the performance of the RAF; shortages of manpower and equipment; training; the general state of morale; operational details; and procurement. There are also sections highlighting what are described as specific areas of concern. There is a mixture of factual information, to which MOD have broadly applied Exemption 1 and comment, to which MOD have broadly applied Exemption 2.
4.18 In considering the applicability of these two exemptions to the information requested I have, as before, taken into account that some of it has already found its way into the public domain. In assessing information which is as yet unreleased I have taken the same approach as before. I recognise, that information relating to the strength, operational effectiveness, and level of morale within the RAF could, if released, realistically cause harm to national security and defence. I accept also that the value of these reports, as currently drafted, would be significantly diminished if those commenting on these issues felt unable to do so as frankly as they would wish because their views would be subject to disclosure. In time, no doubt, all these views could be widely disclosed without fear of harm being caused: at present, in some cases, it is my view that harm could result and that the information should therefore be withheld. I am satisfied, however, that some parts of these
documents can be released on the same basis as the other reports. I therefore recommend the release of the disclosable information in the same format and with the same criteria as set out in paragraph 4.15 for the other reports.
Conclusion
4.19 The MOD have recognised that, in matters relating to the release of information, the sensitivity of factual material does not remain static and that, as a result of the passage of time, more information can now be disclosed to Mr M. I regard that as a satisfactory outcome to a partially justified complaint.
Total screening and investigation time = 40 weeks
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