Public inquiries often deal with information of a sensitive nature, such as information whose disclosure would breach national security, confidentiality or the data protection principles. Proper handling of this information is a significant issue, particularly where this information forms part of the inquiry record, and will be transferred following the closure of the inquiry. Inquiry staff must handle sensitive information correctly, irrespective of format, so as to ensure that it is protected as necessary.
Information created and used in the course of an inquiry is likely to be predominantly in digital form, and staff should be aware that increased volumes of digital records can make a sensitivity review more difficult and time consuming to review. The National Archives recommends that sensitive material should be effectively managed throughout the inquiry to save time and money and ensure an effective review at its completion.
During the inquiry, teams also need to demonstrate that there is a system in place in their day to day work which can identify sensitive material, and that this has been audited to ensure all members adhere to it. The National Archives is available to provide specific guidance on how to manage sensitive information.
General points to consider
- The public inquiry needs to identify any information that may need to be withheld, where its release could compromise national security, breach confidentiality undertakings, or if it contains personal material of a distressing nature such as medical records or mortuary photographs
- Information with a classification marking above ‘restricted’ will need to be passed to either the sponsoring department or Cabinet Office until a time when the sensitivity has diminished and the record can be transferred to The National Archives
- It is recommended that the public inquiry, as part of its policy framework, develop and publish a data protection policy and accompanying procedures for all records it creates and receives as evidence. This would include a data protection statement or privacy notice, to be made available to any person wishing to submit evidence. The statement should include information on how the information is to be used and managed by the inquiry and the Government during and after the conclusion of the inquiry.
The inquiry is not subject to the Freedom of Information Act while it is ‘live’, but afterwards, when its records have passed to The National Archives, the Cabinet Office or the sponsoring department, the Freedom of Information (FOI) Act will apply to those records and hence FOI requests may be received. The inquiry team needs to agree with The National Archives (and, where applicable, the Cabinet Office departmental record officer) what is required for permanent preservation, including redacted and un-redacted content, and should identify FOI exemptions that may apply to the information.
When considering the sensitivity review
- a final sensitivity review will be aided greatly by identifying sensitivity at the point of which information is originally created, as well as filing information in an appropriately controlled part of the filing structure
- to ensure that sufficient time prior to the end of the inquiry is left for the sensitivity review, particularly when reviewing large volumes of digital information
- inquiry staff with specialist knowledge of the record content may be able to advise on sensitivities, and should be consulted during the review
- where records contain sensitivities and are selected for permanent preservation, inquiry staff should document what information will be redacted, which sensitivities apply (including relevant FOI exemption) and the period of time for which the information is likely to require closure
- inquiry staff can contact The National Archives for further advice about the sensitivity review process
The National Archives understands that personal data and protecting the anonymity of some individuals may be a significant concern. We recognise the need to apply access restrictions that will ensure protection of sensitive information within the ‘inquiry record’. However, the destruction of public records in order to provide this anonymity is not recommended, and carries its own risks. A decision on whether confidential information should form part of the permanent inquiry record must be based on its relevance to the terms of reference of the inquiry. The public inquiry should not destroy significant information which may be crucial to provide future accountability for its findings.
Sensitivity clearly has a bearing on the future handling of these records and the conditions under which they might eventually be transferred to The National Archives. The National Archives has considerable experience of handling sensitive information. It can hold closed records still classified to the level of ‘Restricted’ in a secure area of the repository and, if the classification level is higher, arrangements can be made for records to be securely retained by the sponsoring department or Cabinet Office, as appropriate.
Find out more
Freedom of Information Act: your responsibilities and obligations – Information Commissioner’s Office
Freedom and rights – Ministry of Justice
Data Protection Act 1998 – Information Commissioner’s Office