How could the Cabinet Office have originally decided the public interest favoured non-disclosure of information held about the Hillsborough Disaster?
On 15 December 2009 Alan Johnson, the then Secretary of State for the Home Department, announced that an Independent Panel would be appointed to enable disclosure of information relating to the 1989 Hillsborough disaster, and the events which followed it. The Panel would lead to
maximum possible public disclosure of governmental and other agency documentation on the events that occurred and their aftermath
As we all know, the Panel has now published an extraordinary amount of information, with a devastating covering report. It was not the Panel’s role to apportion blame for the tragedy but the disclosure has finally led to unequivocal public and political acceptance that, in the words of the Prime Minister, and despite previous despicable insinuations or outright pronouncements to the contrary
Today’s report is black and white. The Liverpool fans “were not the cause of the disaster”.
The efforts of bereaved families and those close to them in effecting this outcome can never be overstated. But a small part was attempted to be played using the Freedom of Information Act 2000. On 23 April 2009 a BBC journalist made an FOI request to the Cabinet Office for
Copies of all briefings and other information provided to Margaret Thatcher in April 1989 relating to the Hillsborough disaster [and] Copies of minutes and any other records of meetings attended by Margaret Thatcher during April 1989 at which the Hillsborough disaster was discussed.
The request was turned down. The Cabinet Office, rather than the 20 working days permitted by law, took nine months (they’re traditionally not very good at this FOI compliance thing, you must understand) to state that the information was exempt from disclosure under sections 31(1)(a), 31(1)(b), 31(1)(g) – which deal with prejudice to law enforcement – and sections 35(1)(a), 35(1)(b) and 35(1)(d) – which deal with information relating to the formulation or development of government policy, Ministerial communications and the operation of any Ministerial private office. All of these exemptions, if engaged, required consideration whether the public interest in disclosure outweighed the public interest in maintaining the exemption. In all instances, the decision was against disclosure: the public interest did not – according to those at the Cabinet Office determining this request – favour disclosure.
On appeal the Information Commissioner disagreed. He said
the Commissioner considers it clear that the public interest in disclosure of information relating to the Hillsborough disaster – constituting improved public knowledge and understanding of the causes of and reaction to this event (and in relation to this specific information how the Government of the day reacted) – means that the balance of the public interest favours disclosure
He did not accept the Cabinet Office’s argument that the fact that the Independent Panel had now been set up was relevant to a decision as to whether the application of the exemptions was correct
[the Panel] did not exist at the time of the request, or within 20 working days following the receipt of the request by the public authority. This Notice concerns whether the information should have been disclosed within 20 working days from the receipt of the request, and any factor that did not apply at the time of the request is not relevant
Notwithstanding this, the BBC ultimately agreed to withdraw its request, given the imminence of the outcome of the Panel’s work. And now we know the truth.
The Prime Minister went on to say in his statement
At the time of the Taylor Report [Margaret Thatcher] was briefed by her private secretary that the defensive and – I quote – ‘close to deceitful’ behaviour of senior South Yorkshire officers was ‘depressingly familiar’. And it is clear that the then government thought it right that the Chief Constable of South Yorkshire should resign. But… governments then and since have simply not done enough to challenge publicly the unjust and untrue narrative that sought to blame the fans.
Information Commissioner decisions requiring disclosure of Cabinet minutes, and similar information, have four times been subject to a ministerial veto to maintain secrecy. Was the initial refusal of the BBC’s FOI request for this Hillborough disaster information simply reflective of a government approach which automatically seeks to exempt any Cabinet minutes from disclosure? I rather hope so, because the alternative is that officials, and ministers, thought that the public interest did not favour disclosure of information relating to what some are calling the biggest cover-up in British history.
UPDATE
I’ve been reflecting on this. I think it’s only fair to point out that, arguably, because the Cabinet Office took so long (nine months, remember) to get round to responding to the request, by the time they did so, the Independent Panel was set up. So, by that argument, the person looking at the request never actually determined that the public interest did or did not favour disclosure, until it was clear that it was going to be published in the future. The Information Commissioner did not accept that point
This Notice concerns whether the information should have been disclosed within 20 working days from the receipt of the request, and any factor that did not apply at the time of the request is not relevant. This situation applies regardless of the lengthy delay
and was correct in law not to, but in fairness to the Cabinet Office officials, they might have handled the request differently (by the time they got round to it) if the Independent Panel, with its remit to disclose, had not been set up.
informationrightsandwrongs 
“Was the initial refusal of the BBC’s FOI request for this Hillborough disaster information simply reflective of a government approach which automatically seeks to exempt any Cabinet minutes from disclosure? I rather hope so, because the alternative is that officials, and ministers, thought that the public interest did not favour disclosure of information relating to what some are calling the biggest cover-up in British history”.
This is a bit fanciful, to put it mildly. Its taken 3 years and hundreds of thousands of documents for the Independent Panel to publish what it has done.
“Some” might call it the biggest cover-up in British history, but it doesnt mean that it is. If youve not read the reports about Hillsborough then Id direct you to the 1989 Taylor Report which found the main reason for disaster was a lack of Police control. Unless I’ve missed something, the Panel havent amended or added to this fundamental conclusion. Some cover up.
Whilst I presume and accept your comments weren’t intended to be around Hillsborough, I think you should reflect on your clear implication that a Cabinet Office official should be expected to make a judgement about the extent to which this was, or wasnt “the biggest cover up in British history”. I think such a consideration would have made for a very interesting public interest test/read.
Even if it was the greatest cover up in British history, that doesn’t mean the information within the scope of the particular request would in anyway confirm that. Can I ask if you have you looked at the documents that would have fallen within scope?
Thanks for the rather patronising comment Pete. I’m well aware of the Taylor Report. Surely you’re not suggesting the Independent Panel’s disclosure adds nothing significant to Taylor? The most damning disclosures are specifically to do with evidence presented (or rather not presented) by police officers who changed their statements to that Inquiry.
I’ve not read through all the material that might have been in scope, but it’s mostly going to be here http://is.gd/nYvW3J But I have quoted the Prime Minister’s own words in his statement about the briefing of Thatcher by her private secretary. I’m pretty sure that information would have been in scope of the BBC’s request. And I’m sure about which way I lie on whether the public interest favoured disclosure.
And if you read my words closely you will have no problems seeing that I have not said a Cabinet Office official should have made a judgement on the extent to which this was the the “biggest cover up in British History”. I have questioned the application (by officials and ministers – let’s not pretend this decision was made by one person) of the public interest test to the disclosure of information relating to what some people are now calling the biggest cover up in history.
By the way, I very much doubt that this is the biggest cover up. By definition the biggest cover up is likely to be one we don’t know about.
Actually, I should have said the most damning disclosures relate to number of victims who might have been saved http://www.standard.co.uk/news/uk/the-41-lives-that-could-have-been-saved-at-hillsborough-if-999-services-had-acted-in-time-8130431.html
Governments and Cabinet Secretaries are reluctant to overrule their predecessors vis a vis public interest judgements. Johnson and Brown judged correctly, especially in view of Jack Straw’s experience early in Blair’s first term.
I didn’t intend to be patronising, apologies. But nor do I think criticism of your position should be regarded as trolling. Put your head above the parapet and all that!
Perhaps I didn’t articulate myself very well so hopefully you won’t mind me trying again.
I understood the central of your position to be along the lines that given “some people” had thought this was the biggest ever cover up, ANY and ALL information within the 430,000 documents would automatically attract the public interest in favour of disclosure. For a number of reasons I found this curious.
Firstly, from what I’ve seen of the Panel’s evidence, I don’t quite see what this cover up amounts to – certainly not on the scale you have implied, or indeed that has been reported upon. I accept I’m in the minority here – but I also note your previous blog comments on churnalism which I think is in play here.
The Interim Taylor Report, published just months after the disaster, confirmed that lack of police control was the most significant cause. It also confirmed that the Police’s submission was that a significant (or significantly higher than usual) number of drunk and ticketless yobs aggressively tried to force their way in and that was the real cause. LJT dismissed that account. But we can see that Taylor Report described the real reason for the tragedy. Given this is (surely?) the single biggest issue re Hillsborough, I do quibble at the idea its somehow taken 23 years for the truth to emerge and vindication of those (minority) fans who were accused of causing it.
So whilst David Cameron may now accept the fans weren’t to blame, some of us already knew that, given that information was already documented and in the public domain.
Picking up your theme of churnalism, look at the Guardian reporting. This story http://www.guardian.co.uk/football/2012/sep/13/hillsborough-south-yorkshire-police-ippcc writes about how the panel has “identified an orchestrated cover up and smear campaign against the victims”. The hyperlink for that sentence doesn’t however take us where the reports says that (because, frankly it doesn’t), it takes us simply to another Guardian article, which can only quote the report as saying there was “no evidence… to verify the serious allegations of exceptional levels of drunkenness, ticketlessness or violence among Liverpool fans”. Clearly not the same thing. I don’t think collating police statements alleging those behaviours is quite as bad as others seem to – lets be clear there are several police statements alleging those things initially reported in the Sun. Im not saying they are true, but they do exist and were individual officers recollections – from the way its been reported you’d think those statements had been fabricated on instruction. I see them more as unreliable and/or disproven witness accounts.
Secondly, (and perhaps back to the point) I now note you don’t even subscribe to Michael Mansfield’s quote. Obviously he has more standing than the average man in the street, but it strikes me as odd to suggest disclosure is justified, based partly on the one liner of some people who you don’t even agree with.
Thirdly, even if this was the biggest ever cover up, I don’t think it automatically follows that every document held will favour disclosure. This was my point about whether you had looked at the information captured by the request. Would any of that have revealed the alleged cover up?
One final apology – Ive just realised Ive hijacked your blog.
Thanks for the apology. By the way, the only time I’ve referred to trolling was in a jokey conversation on twitter with someone else. I’ve not mentioned it anywhere else, and to have read that you’d have needed to be reading through my timeline.
Anyway, you’ve written at length here about whether the Panel Report really adds anything to Taylor. Of course some people have known from the start what bullshit was spouted by the police and some others, but – as I’ve said – the revelations about changing of statements to the Taylor Inquiry are extraordinary, and they are new.
Maybe I’ve failed to get the point across, but I was trying to state that disclosure of a large amount of the information requested by BBC must surely have been in the public interest, and the Panel’s disclosures give further strength to that view. Perhaps – note my addendum – the CO would say “by the time we looked at the request – several months after it was made – we could see the PI in disclosure was great, but we knew the Panel would be making disclosures so rejected the request on that basis”. But there are alternatives – that the CO adopts a blanket exemption approach for this type of information, or, worse, that when the request was received and looked at someone decided the sort of information now disclosed did not have sufficient PI to disclose it.
And just because I don’t agree (and never said I did – check my words) with Michael Mansfield, when he agreed with a suggestion that this was the “biggest cover up in British history”, does not mean that I do not think it was a huge cover up. Disclosure of huge cover ups is also strongly in the public interest.
And finally, I have never suggested that every document held should have been disclosed. And I have not suggested the CO information itself would have revealed the cover up (although it might). I have said it *related* to the cover up.
Yes I saw the troll comment on your twitter feed, the same one displayed on this page.
We obviously have different opinions on the extent to which there was a cover up, which we would presumably both agree impact on the public interest arguments.
But we should be able to agree on documented fact.
Eg “the revelations about changing of statements to the Taylor Inquiry are extraordinary, and they are new”.
Its been well known and previously considered (in 1998) that the police statements underwent amendments.
The Panel’s comment:
“Lord Justice Stuart-Smith accepted that SYP edited those statements that were ‘unhelpful to the police case’ but ‘at worst this was an error of judgement’ as there were only a few examples ‘where matter of fact were excluded’. The process reflected an ‘understandable desire’ to protect the interests of a Force on the ‘defensive’. Yet Lord Justice Stuart Smith found no ‘irregularity or malpractice’. There had been no negative consequences for the Taylor Inquiry, the criminal investigations, the disciplinary proceedings or the coronial inquiry”.
If you look through the examples of the changes (and perhaps you already have and simply take a different view, in which case further apologies), you will see they water down/remove criticism of the police. I dont think you would find the changes as extraordinary as the media are implying.
Fair enough, I could have been clearer in my earlier comment: I should have said “the revelations about *the extent to and manner of which there was* changing of statements to the Taylor Inquiry are extraordinary, and they are new”.
The point is, the Panel has disclosed information. The information, in very large part, is new (as in not disclosed before), and, in my view at least, and apparently the views of a great number of people, is manifestly in the public interest. The Cabinet Office previously refused a request to disclose the information, arguing it was not in the public interest to disclose it. I struggle to understand how that decision would have been arrived at.
But wasn’t that what my blog post said anyway? (Rhetorical question)
If you had said the “extent to which statements were changed was previously unknown”, that would be accurate. You didnt say that, you churned out the media line about “extraordinary” “revelations”. You would gain credibility if you conceeded your own knowledge was detached from published fact.
As I said earlier, its not breaking news that the police loss of control was the main reason or that the police statements were amended – even if its apparently news to you, some lazy journalists and the Prime Minister.
I’ll ask the Cabinet Office for any information held regarding their public interest considerations. I’ll do it via whatdotheyknow and copy the link here.
Hopefully we won’t then need to speculate on:
“How could the Cabinet Office have originally decided the public interest favoured non-disclosure of information held about the Hillsborough Disaster?” – whilst simultaneously implying that of course disclosure was justified becase ‘some’ (but not yourself ) are calling this the biggest cover-up in British history. So disclosure should be based on what the biggest rentaquote can offer?
I’m not an apologist for the Cabinet Office – but nor do I think people should be able to sling cheap mud based on headlines – not knowledge – in an attempt to score points for FOI on the back of 96 people dying.
If you were really interested in Cabinet Office public interest considerations you would have asked them, rather than shamelessly link FOI to the big story of the week.
Pete, please don’t bother coming back and posting the link to WDTK. You don’t know me, you don’t know my “credibility” and you make unpleasant assumptions about my reasons for posting this piece.
I’ll always approve comments (unless spam) because I feel it’s right to, but when the only people who care about this exchange appear to be me and you, and you write stuff like this, which I find offensive, ask yourself whether it’s worth it.