Thursday, May 25, 2006

Information Commissioner issues Enforcement Notice concerning information on the legality of military intervention in Iraq

The following press notice has been issued:

The Information Commissioner has served a single Enforcement Notice to resolve the issues arising from a number of similar complaints relating to disclosure of advice given by the Attorney General on the legality of military intervention in Iraq in 2003.

After very careful consideration of all the available evidence, the Information Commissioner has served the Legal Secretariat to the Law Officers (LSLO) with an Enforcement Notice. The Notice requires the disclosure of some - but not all - of the information which had been requested under the Freedom of Information Act. The Information Commissioner has ordered that a Disclosure Statement is published containing the substance of information which led to, or supported the views, which were made public by the Attorney General in his statement to Parliament on 17 March 2003. The Notice does not require the publication of information which was preliminary, provisional or tentative or which may reveal legal risks, reservations or possible counter-argument.

Richard Thomas, Information Commissioner, said:

“This is an exceptional, complex and sensitive case which has raised many issues.
The Freedom of Information Act creates a presumption of disclosure, but the Act also creates important and separate exemptions relating to advice from the Attorney General, ministerial communications, the development of government policy, legal professional privilege, and prejudice to international relations. I was satisfied that at least one of the exemptions applied to all the requested information. I was then required to balance competing public interest considerations. The Notice sets out my reasoning in full.

“My conclusion is that the balance of the competing public interest tests calls for disclosure of the recorded information which led to, or supported, the concluded views which were made public by the Attorney General in his 17 March Statement. As the government chose to outline an unequivocal legal position, on such a critical issue at such a critical time, the balance of the public interest calls for disclosure of the recorded information which lay behind those views. By this means the public can better understand the background and rationale behind that published Statement and the extent to which reliance upon those final conclusions was in fact justified.

“But I have also concluded that the arguments for maintaining the exemptions are sufficiently powerful that the balance of the competing public interests does not require the disclosure of those parts of the requested information which were of a preliminary, provisional or tentative nature or which may reveal legal risks, reservations or possible counter-argument. Nor is disclosure needed where it would prejudice the UK’s relations with other countries.”

The Commissioner has recognised that the nature of the documentation in this case makes it impossible or extremely difficult to publish redacted text to meet the requirements of the Freedom of Information Act. The Enforcement Notice therefore requires a Disclosure Statement to be published meeting specified parameters. The Disclosure Statement has to include the substance of those parts of certain documents, as notified to the LSLO, which fall within these parameters.

The Commissioner is satisfied that the Disclosure Statement prepared by the LSLO and attached to the Enforcement Notice meets his requirements.

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Further information & my comment

Read the full enforcement notice

Legal Secretariat to the Law Officers' website

Read about enforcement notices in the FOIA 2000

The Information Commissioner has stated it issued an Enforcement Notice in this instance because of the large number of similar, but not identical, complaints related to this matter. He intends shortly to issue Decision Notices to the individual complainants and anticipates that their substance will be consistent with the conclusions reached in the Enforcement Notice.

The is the first such noticed issued in the 1.5 years the Freedom of Information Act 2000 has been in force. Whilst the Information Commissioner is to be applauded for taking this approach the timing and delay relating to appeals that were made over a year ago does diminish the impact and value of the enforcement notice. It does however give me hope about the appeal I am making about the al-Jazeera memo will be takebn seriously.

The Law Officers (LSLO) can appeal to the Information Tribunal under the FOIA 2000. They could also use the loophole under S53 of the Act and issue a certficate: "A decision notice or enforcement notice to which this section applies shall cease to have effect if, not later than the twentieth working day following the effective date, the accountable person in relation to that authority gives the Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure falling within subsection (1)(b)."

There is a case ongoing in Australia challenging use of similiar certificates at present.

3 comments:

Dr David Lowry said...

On December 20, 2004, shortly before the Freedom of Infomation Act (FOIA) entered into force on the first day of 2005, the then Solicitor General Harriet Harman - a former legal officer for Liberty - said in a written reply that she could not even divulge the number of pages in the legal advice by her boss, Attorney-General Lord Goldsmith on the legality of waging war on Iraq, because "the information requested relates to the provision of confidential legal advice and is covered by legal professional privilege."

On the eve of 2005 The Guardian carried a scene setting article on the FOI Act ("Release of Iraq war advice is test for new act: Freedom of information battle looms on legality of action, Dec. 31, 2004)

The day before TheSame paper published a letter from me arguing that "one key document that should be put into the public domain is the crucial advice from [Lord] Peter Goldsmith, on the legality of the invasion of Iraq," and I too asked for its release "along with each of its earlier iterations and all emails or other interdepartmental correspondence relating to reasons for changes."("Secret state," letters, Dec 30,2004 -www.guardian.co.uk/freedom/Story/0,,1380741,00.html)

Nearly 17 months later, we have still only had a partial answer, containing no primary internal documents. Rather than provide the primary information ( not even in a redacted form), all we have is Attorney-General's own summary narrative of the sequence of events. Why should we believe the A-G has included all pertinent elements of the story: indeed why believe veracity of this account at all, in light of experience of earlier ministerial utterances on Iraq?

The A-G admits he diametrically changed his advice from his first judgment, that any invasion of Iraq without a second UN security council resolution would be illegal, after discussions, inter alia, with Sir Jeremy Greenstock, our ambassador to the UN in New York, on the interpretation of the negotiating record of security council resolution 1441.

The narrative puts it in these extraordinary words, that the A-G finally " had reached the clear conclusion that the better view was there was a lawful basis for the use of force without a second resolution." Better for whom? it may be asked.

None of us know, because of the refusal to make public primary internal information, what SirJeremy told Lord Goldsmith in private. But we do know what he said in public, before the UN security Council on behalf of the United Kingdom in the debate on SC 1441 on 8 November 2002.This was confirmed in a Parliamentary answer by the then foreign office minister Bill Rammell, placing on the record SirJeremy's exact words, viz.

"There is no 'automaticity' in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in paragraph 12 [of Resolution 1441]. We would expect the Security Council then to meet its responsibilities." (Hansard, 7 May 2003 : Column 740W)

Sir Jeremy was asked about his role as described in the A-G's narrative on the Radio 4 'Today programme' on 26 May. He retorted bluntly "Let that account stand for itself. I won't comment any further."

What we do know is the Government has refused his request to publish his memoirs as a diplomat, including his crucial time as Britsh Ambassador to UN in the run up to the invasion of Iraq.

With the public's own wartchdog, information commissioner Richard Thomas. failing to deliver for the public, I shall now be forced to appeal his judgment upwards to the final appeal body, the Information Tribunal. I suggest all other applicants for the same information do the same.

- Dr David Lowry
Stoneleigh
Surrey

Dr David Lowry said...

On December 20, 2004, shortly before the Freedom of Infomation Act (FOIA) entered into force on the first day of 2005, the then Solicitor General Harriet Harman - a former legal officer for Liberty - said in a written reply that she could not even divulge the number of pages in the legal advice by her boss, Attorney-General Lord Goldsmith on the legality of waging war on Iraq, because "the information requested relates to the provision of confidential legal advice and is covered by legal professional privilege."

On the eve of 2005 The Guardian carried a scene setting article on the FOI Act ("Release of Iraq war advice is test for new act: Freedom of information battle looms on legality of action, Dec. 31, 2004)

The day before TheSame paper published a letter from me arguing that "one key document that should be put into the public domain is the crucial advice from [Lord] Peter Goldsmith, on the legality of the invasion of Iraq," and I too asked for its release "along with each of its earlier iterations and all emails or other interdepartmental correspondence relating to reasons for changes."("Secret state," letters, Dec 30,2004 -www.guardian.co.uk/freedom/Story/0,,1380741,00.html)

Nearly 17 months later, we have still only had a partial answer, containing no primary internal documents. Rather than provide the primary information ( not even in a redacted form), all we have is Attorney-General's own summary narrative of the sequence of events. Why should we believe the A-G has included all pertinent elements of the story: indeed why believe veracity of this account at all, in light of experience of earlier ministerial utterances on Iraq?

The A-G admits he diametrically changed his advice from his first judgment, that any invasion of Iraq without a second UN security council resolution would be illegal, after discussions, inter alia, with Sir Jeremy Greenstock, our ambassador to the UN in New York, on the interpretation of the negotiating record of security council resolution 1441.

The narrative puts it in these extraordinary words, that the A-G finally " had reached the clear conclusion that the better view was there was a lawful basis for the use of force without a second resolution." Better for whom? it may be asked.

None of us know, because of the refusal to make public primary internal information, what SirJeremy told Lord Goldsmith in private. But we do know what he said in public, before the UN security Council on behalf of the United Kingdom in the debate on SC 1441 on 8 November 2002.This was confirmed in a Parliamentary answer by the then foreign office minister Bill Rammell, placing on the record SirJeremy's exact words, viz.

"There is no 'automaticity' in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in paragraph 12 [of Resolution 1441]. We would expect the Security Council then to meet its responsibilities." (Hansard, 7 May 2003 : Column 740W)

Sir Jeremy was asked about his role as described in the A-G's narrative on the Radio 4 'Today programme' on 26 May. He retorted bluntly "Let that account stand for itself. I won't comment any further."

What we do know is the Government has refused his request to publish his memoirs as a diplomat, including his crucial time as Britsh Ambassador to UN in the run up to the invasion of Iraq.

With the public's own wartchdog, information commissioner Richard Thomas. failing to deliver for the public, I shall now be forced to appeal his judgment upwards to the final appeal body, the Information Tribunal. I suggest all other applicants for the same information do the same.

- Dr David Lowry
Stoneleigh
Surrey

Dr David Lowry said...

On December 20, 2004, shortly before the Freedom of Infomation Act (FOIA) entered into force on the first day of 2005, the then Solicitor General Harriet Harman - a former legal officer for Liberty - said in a written reply that she could not even divulge the number of pages in the legal advice by her boss, Attorney-General Lord Goldsmith on the legality of waging war on Iraq, because "the information requested relates to the provision of confidential legal advice and is covered by legal professional privilege."

On the eve of 2005 The Guardian carried a scene setting article on the FOI Act ("Release of Iraq war advice is test for new act: Freedom of information battle looms on legality of action, Dec. 31, 2004)

The day before TheSame paper published a letter from me arguing that "one key document that should be put into the public domain is the crucial advice from [Lord] Peter Goldsmith, on the legality of the invasion of Iraq," and I too asked for its release "along with each of its earlier iterations and all emails or other interdepartmental correspondence relating to reasons for changes."("Secret state," letters, Dec 30,2004 -www.guardian.co.uk/freedom/Story/0,,1380741,00.html)

Nearly 17 months later, we have still only had a partial answer, containing no primary internal documents. Rather than provide the primary information ( not even in a redacted form), all we have is Attorney-General's own summary narrative of the sequence of events. Why should we believe the A-G has included all pertinent elements of the story: indeed why believe veracity of this account at all, in light of experience of earlier ministerial utterances on Iraq?

The A-G admits he diametrically changed his advice from his first judgment, that any invasion of Iraq without a second UN security council resolution would be illegal, after discussions, inter alia, with Sir Jeremy Greenstock, our ambassador to the UN in New York, on the interpretation of the negotiating record of security council resolution 1441.

The narrative puts it in these extraordinary words, that the A-G finally " had reached the clear conclusion that the better view was there was a lawful basis for the use of force without a second resolution." Better for whom? it may be asked.

None of us know, because of the refusal to make public primary internal information, what SirJeremy told Lord Goldsmith in private. But we do know what he said in public, before the UN security Council on behalf of the United Kingdom in the debate on SC 1441 on 8 November 2002.This was confirmed in a Parliamentary answer by the then foreign office minister Bill Rammell, placing on the record SirJeremy's exact words, viz.

"There is no 'automaticity' in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in paragraph 12 [of Resolution 1441]. We would expect the Security Council then to meet its responsibilities." (Hansard, 7 May 2003 : Column 740W)

Sir Jeremy was asked about his role as described in the A-G's narrative on the Radio 4 'Today programme' on 26 May. He retorted bluntly "Let that account stand for itself. I won't comment any further."

What we do know is the Government has refused his request to publish his memoirs as a diplomat, including his crucial time as Britsh Ambassador to UN in the run up to the invasion of Iraq.

With the public's own wartchdog, information commissioner Richard Thomas. failing to deliver for the public, I shall now be forced to appeal his judgment upwards to the final appeal body, the Information Tribunal. I suggest all other applicants for the same information do the same.

- Dr David Lowry
Stoneleigh
Surrey