CJ 4/4402 FOI request correspondence

FOI request reference: CAS-70427-X8F6Y8
Publication date: December 2021

Request

I understand that [Named Individual] submitted a FOI request for the file titled “CJ 4/4402: Paul Whitters: killed by a plastic baton round, April 1981”. I also understand that the National Archives had to consult other government departments in relation to this request. In light of this, I would like to request the following information:

(1) Please indicate which government departments the National Archives had to consult over the file CJ 4/4402. Please also indicate whether the National Archives flagged the request to the Cabinet Office Clearing House.

(2) Please provide all external correspondence and communications between the National Archives and government departments which refer to, or relate to, the file CJ 4/4402.

(3) Please provide all internal correspondence and communications held by the National Archives which refer to, or relate to, the file CJ 4/4402. I expect this to include internal communications in relation to the processing of [Named Individual]’s FOI request for this file.

Outcome

Some information provided.

Request and response

I understand that [Named Individual] submitted a FOI request for the file titled “CJ 4/4402: Paul Whitters: killed by a plastic baton round, April 1981”. I also understand that the National Archives had to consult other government departments in relation to this request. In light of this, I would like to request the following information:

(1) Please indicate which government departments the National Archives had to consult over the file CJ 4/4402. Please also indicate whether the National Archives flagged the request to the Cabinet Office Clearing House.

During the processing of a freedom of information request relating to file CJ 4/4402, The National Archives consulted the Northern Ireland Office (NIO), the Foreign, Commonwealth and Development Office (FCDO) and the Ministry of Defence (MoD).

The Cabinet Office’s Clearing House was not consulted during the processing of this request.

(2) Please provide all external correspondence and communications between the National Archives and government departments which refer to, or relate to, the file CJ 4/4402.

We have performed a search of our digital filing system and identified 7 pieces of external correspondence concerning the aforementioned request. These pieces of correspondence include individual emails and email chains which amount to a total of 40 A4 pages.

Furthermore this correspondence includes 15 attachments in the form of pdf copies of CJ 4/4402, excel sheets and word documents which amount to a total of 320 A4 pages.

Please use the following link to access a pdf copy of releasable correspondence. Some material has been withheld in part under sections 36(2) (b) and 40(2) of the Freedom of Information Act. Some material also falls outside the scope of your request as it does not concern the request and has consequently been withheld as such.

External correspondence related to CJ 4/4402

The attachments to this correspondence have been withheld in full under sections 36(2) (b), 38(1) (a-b), 40(2) and 41(1).
For further information on the application of the aforementioned exemptions please see the explanatory annex.

(3) Please provide all internal correspondence and communications held by the National Archives which refer to, or relate to, the file CJ 4/4402. I expect this to include internal communications in relation to the processing of [Named Individual]’s FOI request for this file.

We have performed a search of our digital filing system and identified 8 pieces of internal correspondence concerning the aforementioned request. These pieces of correspondence include individual emails and email chains which amount to a total of 13 A4 pages.

Furthermore this correspondence includes 3 attachments in the form of word documents which amount to a total of 9 A4 pages.

Please use the following link to access a pdf copy of releasable correspondence. Some material has been withheld in part under sections 36(2) (b) and 40(2) of the Freedom of Information Act. Some material also falls outside the scope of your request as it does not concern the request and has consequently been withheld as such.

Internal correspondence related to CJ 4/4402

The attachments to this correspondence have been withheld in full under sections 36(2) (b).

For further information on the application of the aforementioned exemptions please see the explanatory annex.

EXPLANATORY ANNEX
Exemptions applied

Section 36: Prejudice to Effective Conduct of Public Affairs
Section 36 (2) (b) exempts information from release if, in the reasonable opinion of a qualified person, disclosure of the information would, or would be likely to; (i) inhibit the free and frank provision of advice, or (ii) the free and frank exchange of views for the purposes of deliberation.

This exemption has been applied to internal and external correspondence and associated attachments concerning the handling of a FOI request relating to file CJ 4/4402

Section 36 is a qualified exemption and we are required to conduct a public interest test when applying any qualified exemption. This means that after it has been decided that the exemption is engaged, the public interest in releasing the information must be considered. If the public interest in disclosing the information outweighs the public interest in withholding it then the exemption does not apply and the information must be released. In the FOIA there is a presumption that information should be released unless there are compelling reasons to withhold it.

In consultation with the Qualified Person, who in this case is the Chief Executive and Keeper of The National Archives, it has been determined that, in his reasonable opinion this exemption is engaged. The public interest has now been concluded and the balance of the public interest has been found to fall in favour of non-disclosure.

Considerations in favour of the release of the information included the principle that there is a public interest in showing a true and open account of government decision-making, making for greater accountability and increasing public confidence in the integrity of the decisions made. Release of the correspondence and documentation may provide the public with a greater understanding of the processing of Freedom of Information requests and how decisions on the release or retention of closed archival material are made.

However, it is considered that the release of the aforementioned material would prejudice the effective function of the process used for handling FOI requests. It is important that officials are able to exchange views freely and frankly and to fully discuss any issues that effect this process. To release some of the requested information may act as an inhibitor to necessary discussions which would not be in the public interest and would be likely to prejudice The National Archives’ ability to effectively respond to such requests in the future. As such, release of this information would be seen to inhibit the free and frank provision of advice and exchange of views.

After careful consideration, it has been decided that the balance of the public interest lies in favour of withholding the information on this occasion and that the factors for non-disclosure outweigh any benefits of release.

Further guidance on the application of this exemption can be found at:
https://ico.org.uk/media/for-organisations/documents/1175/section_36_prejudice_to_effective_conduct_of_public_affairs.pdf.

Section 38(1): Health and Safety
Section 38(1) of the Act exempts information that, if it was released, would (a) endanger the physical or mental health of any individual or (b) endanger the safety of any individual.

This exemption has been applied to some material within the digital copies of CJ 4/4402 and facsimiles of this material contained within attachments to external correspondence.

Section 38 is a qualified exemption and we are required to conduct a public interest test when applying any qualified exemption. This means that after it has been decided that the exemption is engaged, the public interest in releasing the information must be considered. If the public interest in disclosing the information outweighs the public interest in withholding it then the exemption does not apply and the information must be released. In the FOIA there is a presumption that information should be released unless there are compelling reasons to withhold it.

A public interest test was considered in consultation with the Northern Ireland Office (NIO) at the time of the request, the outcome of which is still considered valid.

Arguments made in favour of disclosure
The use of plastic bullets by the police and army during the Troubles was and continues to be a matter of intense public interest and scrutiny. Transparency of government policy and actions at the time will help the public’s understanding of the time and events leading to greater trust in government actions. In this particular case, disclosure of the file could offer some solace to the family of the deceased who have been calling for greater transparency around the records held by the UK Government.

Arguments made in favour of non – disclosure
Placing named officers at the scene of the event could put their physical wellbeing and their families at risk of reprisals. This is also true of certain individuals/ state officials employed in a professional capacity to advise or offer expert opinion after the incident. If individuals involved in this case are identified, this could expose them and their families to a severe risk of endangerment.

It is highly likely that the relatives of the victims whose autopsy details are included will suffer distress at the release of the details of their injuries into the wider public domain. Whilst some of the information would have been made available as part of the inquest proceedings releasing this information now would be the same as releasing this information for the first time and considered just as distressing to the victims’ surviving relatives.

Outcome of the public interest test
On balance the risk of physical or mental harm to living individuals coupled with the prejudicial effect to law enforcement associated with release is found to outweigh the marginal openness benefits and consequently some information will be withheld.

Further guidance on the application of this exemption can be found at:
https://ico.org.uk/media/for-organisations/documents/1624339/health-and-safety-section-38-foia.pdf.

Section 40(2): Personal Information where the applicant is not the data subject
Section 40 exempts personal information about a ‘third party’ (someone other than the requester), if revealing it would breach the terms of Data Protection Legislation. Data Protection Legislation prevents personal information from release if it would be unfair or at odds with the reason why it was collected, or where the subject had officially served notice that releasing it would cause them damage or distress. Personal information must be processed lawfully, fairly and in a transparent manner as set out by Art. 5 of the General Data Protection Regulation (GDPR).

In this case the exemption applies because the requested material contains information which would identify junior members of staff.

Publishing the names and contact details of junior members of staff is considered an unfair use of personal data. Junior members of staff would have no expectation that information which identifies them would be made available in the public domain; to do so would be unfair and contravene the first data protection principle of the Data Protection Act. As such, the names, and contact details of junior officials are withheld under section 40 (2) of the FOI Act.

Further guidance about the publication of junior staff names can be found here:
https://ico.org.uk/media/fororganisations/documents/1187/section_40_requests_for_personal_data_about_employees.pdf.

The section 40(2) exemption has also been applied to some material within the digital copies of CJ 4/4402 and facsimiles of this material contained within attachments to external correspondence.

This material has been withheld under section 40(2) as it constitutes the personal and the sensitive personal information of a number of identified individuals assumed to be still living, including the names of non-fatal victims, witnesses and jurors. These individuals would have no expectation that this information would be made available by The National Archives in the public domain during their lifetimes; to do so would be unfair and would risk causing damage and distress, which would contravene the first data protection principle.

Section 41: Information provided in confidence
Section 41 (1) of the Act exempts information if (a) it was obtained by the public authority from any other person (including another public authority), and (b) the disclosure of the information to the public (otherwise than under the Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.

This exemption has been applied to some material within the digital copies of CJ 4/4402 and facsimiles of this material contained within attachments to external correspondence.

In this case the exemption applies because the material constitutes information that was given in confidence, the release of which could be actionable in court. Although, for the purposes of the FOI Act, section 41 is an absolute exemption, I can confirm that we have taken into account the public interest defence test inherent within the common law duty of confidence in reaching this decision.

Further guidance on the application of this exemption can be found here:
https://cy.ico.org.uk/media/for-organisations/documents/1432163/information-provided-in-confidence-section-41.pdf.