Parliamentary Health Service Ombudsman / Special Reports / Access to Official Information / Investigations Completed May

Summary
Mr E asked the Ministry of Defence for any information they held regarding reported sightings of unexplained aerial phenomena near the twin United States Air Force complexes of RAF Bentwaters and RAF Woodbridge in late December 1980. MOD disclosed 174 pages of anonymised documentation relating to this incident. However, MOD declined to release three other documents, citing Exemption 2 of the Code in justification. The Ombudsman commended MOD for the manner in which they had handled Mr E’s request. As regards information withheld, the Ombudsman was satisfied that these documents were of the type covered, in principle, by Exemption 2. However, given their age and the fact that these documents contained no information not already in the public domain, the Ombudsman saw no reason why they could not now be disclosed. MOD agreed to disclose this information to Mr E as well as to and several others who had previously requested it. The complaint was upheld.

1. Mr E complained that the Ministry of Defence (MOD) refused to supply him with information that should have been made available to him under the Code of Practice on Access to Government Information (the Code). I have not put into this report every detail investigated by the Ombudsman’s staff but I am satisfied that no matter of significance has been overlooked.

General Background

2. On two separate nights in late December 1980 a number of American servicemen stationed at the twin United States Air Force complex of RAF Bentwaters and RAF Woodbridge reported sightings of unexplained aerial phenomena in the area of land which separates the bases, known as Rendlesham Forest. These reported sightings, commonly referred to as the Rendlesham Forest incident, have been the subject of much subsequent debate and conjecture.

Background

3. On 1 November 2001 Mr E wrote to MOD asking if they could provide him, inter alia, with any information regarding events taking place in December 1980 in and around Woodbridge, Suffolk. This request related specifically to the reported sighting of an unexplained aerial phenomenon by American servicemen in Rendlesham Forest during the nights of December 25 and 26 1980. On 19 November MOD wrote to Mr E enclosing 174 pages of documentation relating to this incident. They explained that some of these documents had been anonymised in order to protect the privacy of those who had corresponded with them about this matter. MOD declined, however, to release three other documents, citing Exemption 2 of the Code in justification.

4. On 27 November Mr E wrote to the MOD requesting a review of their decision not to release the three remaining documents. On 17 January 2002 MOD wrote to Mr E providing him with a broad explanation of the nature of the three documents in question, but declining to release the information contained within them; MOD again cited Exemption 2 of the Code.

The Permanent Secretary’s comments

5. The Permanent Secretary responded on 11 April and outlined the background to Mr E’s complaint, together with the history of MOD’s approach to information requests relating to the Rendlesham Forest incident. The Permanent Secretary detailed how the release of documents contained within the ‘Rendlesham file’ had first been considered in response to a request in May 2001 from a different correspondent. At that time five documents from the file had been withheld: three under Exemption 2 and two under Exemption 1. The Permanent Secretary said that the two papers withheld under Exemption 1 were subsequently released following an internal review. He added that, to date, Mr E was one of twelve separate applicants to have been provided with the Rendlesham file.

6. The Permanent Secretary explained that of the three documents withheld, two comprised draft answers to Parliamentary Questions, complete with background notes and cover sheets, while the third contained a background note and a draft response to a letter from a Member which had enclosed with it a further letter from one of the Member’s constituents. The Permanent Secretary said that there had, unfortunately, been a complication with these documents in that, in practice, some of them did not appear to have been removed from the file made available for disclosure. The Permanent Secretary said that it was not absolutely certain at what stage this error had occurred, but it was very probable that it was prior to the release of the file to Mr E. This meant that Mr E would already have received one of the draft Parliamentary Question answers complete with the background note, the Member’s letter to MOD and the draft response to that letter, albeit it in a version which omitted the name of the constituent. The Permanent Secretary said that he very much regretted these administrative errors as he believed that their handling of this case fully demonstrated MOD’s commitment to the Code and the principles it espoused.

7. The Permanent Secretary said that he believed it was appropriate to comment on all the documents MOD had intended to withhold, as this would reflect the basis on which MOD now proposed to handle any future requests for the Rendlesham file. The Permanent Secretary said that two factors had to be considered: firstly, that the documents represented advice from officials to Ministers and therefore fell within the terms of Exemption 2 and, secondly, that they contained no information about “the events of December 1980 in and around Woodbridge” that had not already been provided to Mr E. The Permanent Secretary said that the background notes and draft responses did constitute “information whose disclosure would harm the frankness and candour of internal discussion”. This was primarily through their status as “internal opinion, advice, consultation and deliberation”, although the background note also included some “information relating to a rejected policy option”. The Permanent Secretary said that, as the documents did not provide any additional information on the subject raised by Mr E, he believed that the harm involved in releasing them outweighed the minimal public interest to be served by any disclosure. The Permanent Secretary added that, as he believed the Ombudsman had himself often stated, the Code gives a right of access only to information, not to specific documents.

8. The Permanent Secretary also addressed the issue of the time taken to handle Mr E’s correspondence. He said that a substantive reply was sent to Mr E’s initial letter within 10 working days, that the letter seeking an appeal was acknowledged within 20 working days, and that the appeal itself was conducted and a reply sent within 31 working days. The Permanent Secretary said, in mitigation, that the review period coincided with Christmas, when key staff were on holiday.

9. In conclusion, the Permanent Secretary said that, while this case had indicated a need to improve administrative processes and ensure that MOD maintained reliable records of documents that had been both released and withheld, he was satisfied that MOD had, at every step, acted in accordance with the Code. Having said this, the Permanent Secretary said that he would now be content to disclose to Mr E those parts of the withheld documents that consisted of correspondence sent to the Department and of the cover sheets relating to Parliamentary Questions. The Permanent Secretary said that he believed, however, that officials had acted correctly in withholding under Exemption 2 the background notes and draft responses prepared for Ministers. These contained no further substantive information that would answer Mr E’s original request, but their disclosure would harm the expectation about confidentiality of advice to Ministers that lay at the heart of Exemption 2. On that basis, he could not recommend their release.

The Code of Practice on Access to Government Information

10. Exemption 2 of the Code, which MOD have cited, is headed “Internal discussion and advice” and reads as follows:

‘Information whose disclosure would harm the frankness and candour of internal discussion, including:

proceedings of Cabinet and Cabinet committees;

internal opinion, advice, recommendation, consultation and deliberation;

projections and assumptions relating to internal policy analysis; analysis of alternative policy options and information relating to rejected policy options;

confidential communications between departments, public bodies and regulatory bodies.’

Exemption 2 is subject to the preamble to Part II of the Code which states that:

‘In those categories which refer to harm or prejudice, the presumption remains that information should be disclosed unless the harm likely to arise from disclosure would outweigh the public interest in making the information available.

References to harm or prejudice include both actual harm or prejudice and risk or reasonable expectation of harm or prejudice. In such cases it should be considered whether any harm or prejudice arising from disclosure is outweighed by the public interest in making the information available.’

Assessment

11. Before turning to the substantive issue of whether or not the information requested by Mr E should be released, I shall look at how MOD handled his request. In response to Mr E’s information request of 1 November, MOD replied on 19 November (paragraph 3). That response time is well within the target time of 20 working days that the Code recommends for responses to simple information requests and I note that MOD also advised Mr E of his right, under the Code, to have the decision to withhold information from him reviewed. On 27 November Mr E wrote asking MOD to review their decision and he received a substantive response on 17 January 2002. In this letter MOD provided Mr E with a broad explanation of the three documents still withheld and advised him of his right, if he remained dissatisfied, to put a complaint through a Member of Parliament to this Office. 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.

12. I turn now to the citing of Exemption 2 by MOD (paragraph 10) and, in this context, I should confirm what the Permanent Secretary has already noted, that the Code gives entitlement only to information, not to documents. However, both the present Ombudsman and his predecessor have taken the view that the release of the actual documents is often the best way of making information available. The purpose of Exemption 2 is to allow departments the opportunity to consider matters, particularly those which are contentious, on the understanding that their thinking will not be exposed in such a way as to fetter their deliberations by inhibiting the frank expression of opinion. I recognise the strength of the argument that the advice and recommendations contained in submissions to Ministers relating to Parliamentary Questions depend upon such candour for their effectiveness and that the value of this advice would be substantially reduced if it were thought that it would be made available to a wider audience. The question in this case, therefore, is whether or not the release of those documents containing advice and recommendation would affect the frankness and candour of the advice offered in future, similar cases. As I see it, it would be difficult for the authors of submissions and draft answers such as these to do their work effectively if they were constantly concerned that what they had advised might be disclosed to a wider audience. I am satisfied, therefore, that those documents containing advice and recommendation are covered, in principle, by Exemption 2. In this respect, I welcome the Permanent Secretary’s willingness to now release the cover sheets to the Parliamentary Questions and the documents representing correspondence sent to MOD as these clearly contain information which is neither advice nor recommendation (paragraph 9).

13. This, however, is only the first step. Having reached a decision on the applicability, or otherwise, of Exemption 2 in principle, I must now consider the harm test (paragraph 10). This poses the question: would the harm that might be caused by disclosing the protected information be outweighed by the public interest there might be in making it available? The Permanent Secretary has argued that there is minimal public interest in making the information contained within the remaining documents available and also that the draft answers and background notes contain no information on the Rendlesham incident additional to that which has already been disclosed to Mr E. At this point, I should emphasise that it is for the body refusing access to information to argue why disclosure would not be in the public interest: the purpose of the Code is to extend access to official information by responding to reasonable requests for information.

14. I have considered carefully the undisclosed material. It is nearly twenty years old and contains, on MOD’s own admission, nothing not already available in the public domain. I find it difficult, therefore, to envisage that any harm might arise from its disclosure: there is nothing contentious or sensitive there which would merit, in my opinion, the public interest being served by its continued protection. The Permanent Secretary has acknowledged that Mr E is by no means the only person to have received information relating to the Rendlesham incident; indeed the 174 pages of documentation already disclosed include many requests and queries regarding this incident, in which public interest is still clearly significant. These disclosed papers also contain details of the rejected policy option referred to by the Permanent Secretary and an explanation of why that option was rejected. While, therefore, continuing to recognise the general principle that information covered by Exemption 2 should be protected, I see no reason why, in this instance, the information concerned should not be released, and it appears to me that the most sensible way of doing that would be by release of the documents themselves, anonymised where appropriate in accordance with MOD’s previous practice in respect of papers relating to this case. I so recommend.

15. In reply, the Permanent Secretary said that he welcomed the Ombudsman’s conclusion that MOD had handled this case in full accordance with the requirements of the Code, and also his appreciation of the importance of confidentiality to the effectiveness and value of the advice provided by officials. The Permanent Secretary said that it was felt that the release of the documents in question would cause harm by weakening this presumption of confidentiality of advice to Ministers, and that the harm to this principle outweighed the public interest to be served by disclosing documents which contained no new information of substance. Nevertheless, the Permanent Secretary recognised that there was a case for an exceptional departure from the general rule to be made in this instance given the probability that the documents added nothing new to what was already known by Mr E. The Permanent Secretary conceded, therefore, that the remaining documents should be disclosed to Mr E: he agreed also to disclose them to those other individuals from whom they had previously been withheld under the Code.

Conclusion

16. MOD have agreed to make the information requested available to Mr E and also to those others from whom it had previously been withheld. I welcome and commend this action, which I see as a satisfactory outcome to a justified complaint.

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Last updated: 4 April 2005