by Chris Ames
The Downing Street documents are a collection of papers leaked to journalist Michael Smith in 2004 and 2005. They record the Blair government’s planning for regime change in Iraq between March and July 2002 and its promises to the Bush administration. Although all the documents have long been in the public domain (albeit with part of one document missing) and one document extensively cited by Tony Blair at the Inquiry, only one has so far been published by the Inquiry. Now the Cabinet Office has stated that the Inquiry will publish the remaining documents alongside its report. The Inquiry has confirmed that it will publish the documents.
This is a very significant development, given the importance of the documents in showing how Blair progressed a covert plan for regime change. But the Cabinet Office has not told the truth as it has implied that the documents will be published in full. In fact, it has insisted on censoring the documents when they are eventually published.
The Cabinet Office statement was made in response to one of a couple of freedom of information (FOI) requests I made a while back, in the knowledge that the Inquiry is sitting on a huge pile of documents that have been declassified but which it is refusing to publish. One FOI request was for everything that the government has declassified for publication by the Inquiry and the other was specifically for the remaining Downing Street documents.
As has been discussed previously on the Digest, the Cabinet Office has used the FOI exemption under Section 22 to block the release of information that will eventually be released by the Inquiry, in spite of the fact that the appearance of the report seems to have become one of those events that, like tomorrow, never comes. Unsurprisingly, the Cabinet Office applied the exemption to both my requests.
In the case of the Downing Street papers, the Cabinet Office initially suggested that the Inquiry might not publish them all in full. In its holding reply while considering the balance of public interest, it referred to some “information requested which is not exempt under Section 22″ but which was allegedly exempt under Sections 27 and 35 of the FOI Act. The clear implication was that not all of the information was due to be published and that, unable to apply Section 22 to this information, it would withhold it from my request for the same or similar reasons.
But the Cabinet Office’s eventual decision was that
“the information you have requested has been prepared for publication by the Iraq Inquiry”
and that it was all therefore exempt under Section 22. It confirmed this decision on review.
I have of course lodged complaints with the Information Commissioner about this decision and the separate refusal to publish all declassified documents, which was also confirmed on review. In the case of the Downing Street documents, I have pointed out that the Cabinet Office is falsely implying that all the information they contain will be published.
I’m also not convinced that Section 22 applies here. Although it does not require that the information will be published by the public body by which it is held, it does require that it is held by that authority “with a view to its publication”. This seems to require a connection between the possession of the information and the intention to publish. But the Cabinet Office held the information in question long before the Inquiry was even set up and the Inquiry will publish the information that it holds, even if the Cabinet Office were for example to lose its copies or cease to exist entirely.
I pointed this out to the Cabinet Office and its review response – probably one of the most inept I have ever seen – made my point. It pointed out, rightly, that
A public authority can still apply section 22 to information it holds even though it does not hold the information itself. In other words, section 22 does apply in cases where the public authority intends to pass the information to another person/body in order for it to be published.
But the Cabinet Office then shoots itself very badly in the foot but stating that:
All of the information you have requested is held by the Iraq Inquiry with a view to its publication.
So the information is not held with a view to its publication by the Cabinet Office, but by the Iraq Inquiry. As the Cabinet Office makes clear, the situation that it describes – where the public authority intends to pass the information to another person/body in order for it to be published – does not apply. The information is already “held by the Iraq Inquiry”.
This situation applies equally to the rest of the declassified information that the Inquiry can publish but is currently withholding. In fact the case for releasing those documents is stronger as the Cabinet Office probably has an insufficient knowledge of which bits of declassified documents the Inquiry intends to publish to be in a position to apply the exemption. Just because the government has declassified a document or a set of documents for publication by the Inquiry, it doesn’t mean that the Inquiry will publish all of that information. Only information that will be published falls under the exemption and if a public body is not able to say that specific information will be published, none of it is exempt.
Having said that, the fact that nearly all the contents of the Downing Street documents is already in the public domain (albeit unofficially in most cases) makes the Cabinet Office claim that
Releasing this information now would risk undermining the Inquiry’s work