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.
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.