Mull of Kintyre of Chinook crash records

Request

Please provide the following information:

1) The total number of documents deposited with the National Archive in respect of the Mull of Kintyre Chinook crash.

2) Copies of documents relating to the storage of the Chinook crash documents, including instructions from the Ministry of Defence, or any other Government Department or Official. I am asking for copies of documentation (in any format) between the National Archives and the MoD, or any other Government Department or Official that relates to the arrangements of transferring the documents to the care of the National Archives from the MoD, other Government Department or Official repository, and the acceptance of the documents by the National Archives from the MoD, other Government Department or Official repository. By “storage” I mean instructions to the National Archives on where the documents are to be stored (at Kew or at an off-site location).

3) Copies of correspondence between the National Archives and the Ministry of Defence relating to the storage, and handling, of the Chinook documents. I am asking for copies of documentation (in any format) relating to the acceptance of the documents by the National Archives including any instructions from the MoD, other Government Department or official on how the documents are to be stored at the National Archives. By 'storage and handling' I mean instructions to the National Archives on where the documents are to be stored (at Kew or at an off-site location) and whether the documents are to be digitised or not.

4) Please provide a list of documents, deposited with the National Archives (in respect of the Mull of Kintyre Chinook crash) that are not subject to the closed for 100 years rule or a lifetime closure.

PREM 19/4780 IRELAND. Situation in Northern Ireland: part 46

PREM 19/4784 IRELAND. Situation in Northern Ireland: part 50

5) Any documents (in any format) that refer to the decision to close the Mull of Kintyre Chinook crash documents for 100 years or a lifetime closure, including reasoning, justification or explanation.

6) If the documents are to be digitised, will the paper copies then be destroyed?

7) The documents are closed to the public for a period of 100 years, but do other individuals have access to the documents during that time? If so, who are those individuals (role, not personal name)?

8) Can the MoD, other Government Department or Official dispose of any of these documents within the 100 year period or will they remain intact for that period of time?

Outcome

Some information provided.

Response

I can confirm that The National Archives holds information relevant to your request, and we are pleased to be able to provide some of this information to you.

We are unable to provide you with some of the information you have requested because it is covered by the exemption at section 40 of the FOI Act.

Section 40(2) exempts personal information about a ‘third party’ (someone other than the requester), if revealing it would break the terms of Data Protection Legislation.

Sections 36(2)(b)(i)(ii) and 36(2)(c) have also been engaged.

Section 36(2)(b) exempts information if its disclosure under the Act would, or would be likely to, inhibit (i) the free and frank provision of advice, or (ii) the free and frank exchange of views for the purposes of deliberation.

Section 36(2)(c) exempts information that, if it was released would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

Section 36 of the Act is a qualified exemption and is subject to the Public Interest Test. Following the Public Interest Test, it has been decided that the balance of the public interest lies in favour of releasing the information on this occasion and that the factors for disclosure outweigh any benefits of non-disclosure. The information that engages section 36 will therefore be released.

For further information about this test and the application of this exemption, please see the explanatory annex at the end of this email.

For your information, when we refer to a record or information as ‘closed’ in our response, this is a shorthand way to reference the fact that the relevant information is subject to one or more exemptions under the FOI Act and is therefore exempt from public release.

Please provide the following information:

1) The total number of documents deposited with the National Archive in respect of the Mull of Kintyre Chinook crash.

This figure is not held by The National Archives. However, following searches of our catalogue and available metadata, it has been possible to identify 16 records that contain information relating to the crash. One of these has been split into two orderable parts. The total may therefore be considered to be 17, depending on how a ‘record’ is chosen to be interpreted.

It is possible that other records are held in our collection that contain information relating to the crash, but the catalogue titles and metadata we have available does not allow us to identify these.

Attached to this response is a spreadsheet of the 16 records relating to the crash that we have been able to identify.

2) Copies of documents relating to the storage of the Chinook crash documents, including instructions from the Ministry of Defence, or any other Government Department or Official. I am asking for copies of documentation (in any format) between the National Archives and the MoD, or any other Government Department or Official that relates to the arrangements of transferring the documents to the care of the National Archives from the MoD, other Government Department or Official repository, and the acceptance of the documents by the National Archives from the MoD, other Government Department or Official repository. By “storage” I mean instructions to the National Archives on where the documents are to be stored (at Kew or at an off-site location).

The transfer of records from the originating department to The National Archives is arranged between the two parties through two key documents:

1. The Catalogue List or (from 2023) the Transfer Summary provides details of the records being transferred and an indication of whether the records are to be transferred open or closed for a defined period under the exemptions provided by the Freedom of Information Act (FOIA). There is a separate document for each TNA series being transferred.
2. The Delivery Form provides details about the number of records and boxes being transferred, including information about the number of closed and open records. This form covers all the records that are part of the same delivery so may cover multiple TNA series.

Relevant documents in CSV format have been attached to this response and contain all of the relevant transfer/catalogue lists and delivery forms. Further information in PDF format is available upon request and can be provided by emailing our team.

The records covered by this request were all delivered to The National Archives in Kew, which is the default position. Records would only be delivered to another location at The National Archives’ request. Subsequent storage is a matter for The National Archives and is not discussed with the originating department.

3) Copies of correspondence between the National Archives and the Ministry of Defence relating to the storage, and handling, of the Chinook documents. I am asking for copies of documentation (in any format) relating to the acceptance of the documents by the National Archives including any instructions from the MoD, other Government Department or official on how the documents are to be stored at the National Archives. By “storage and handling” I mean instructions to the National Archives on where the documents are to be stored (at Kew or at an off-site location) and whether the documents are to be digitised or not.

See response to Q2. There is no record of any discussions about digitising these records.

4) Please provide a list of documents, deposited with the National Archives (in respect of the Mull of Kintyre Chinook crash) that are not subject to the closed for 100 years rule or a lifetime closure.

We have been able to identify the following records through searches of our catalogue and advice given by our team of records specialists. As stated in our response to question 1, this cannot be considered a definitive list.

• AIR 20/13444
• CJ 4/11275
• CJ 4/11896
• DEFE 25/1073 (this record is split into 2 parts - DEFE 25/1073/1 and DEFE 25/1073/2)
• DEFE 71/1402
• DEFE 71/1544
• DEFE 71/1545
• DEFE 71/1551
• DEFE 71/1591
• DEFE 71/1616

Furthermore, we have identified two more open records that contain information that have some relationship to the crash. These records were identified from information that was found in a 2018 press pack concerning the release of Cabinet Office files from 1994. The catalogue titles of these records would not have themselves indicated that they contained information of relevance to the crash.

These records are PREM 19/4780 and PREM 19/4784. We have copied the descriptions of their content verbatim from the press pack in order to allow you to make your own decision on how relevant these are to your research objectives.

PREM 19/4780 IRELAND. Situation in Northern Ireland: part 46

‘An early item of interest in this file concerns the Mull of Kintyre helicopter crash that killed 29 high-ranking RUC and intelligence staff travelling to Scotland for a counter-terrorism conference. Another item of note is a copy of the Report of the Sinn Féin Peace Commission.’

PREM 19/4784 IRELAND. Situation in Northern Ireland: part 50

‘This file details the continuation of Unionist violence, the potential for a referendum on the future position of Northern Ireland as part of the UK, the European Union Assistance package for Northern Ireland, visits to the US by key Irish figures in the peace process, and the programme of the Belfast Cathedral service of thanksgiving and remembrance for those involved in the Mull of Kintyre helicopter crash.’

5) Any documents (in any format) that refer to the decision to close the Mull of Kintyre Chinook crash documents for 100 years or a lifetime closure, including reasoning, justification or explanation.

The National Archives holds research reports and data extracted from a database containing metadata on closed records contain details of the decision to close the following Mull of Kintyre Chinook crash documents for lifetime closure periods:

• CJ 4/11275/1
• CJ 4/11896/1
• DEFE 25/1073/3
• DEFE 71/1616/1

To request copies of these redacted documents please contact FOIRequests@nationalarchives.gov.uk

Please see The National Archive’s published guidance on closure periods for details on how lifetime closure periods are calculated. This guidance can be found in this PDF.

Parts of these documents have been redacted under section 40. Section 40 has been applied to the names of junior staff members. Further details on this can be found in the explanatory annex.

6) If the documents are to be digitised, will the paper copies then be destroyed?

Public records transferred to The National Archives by public bodies under Section 3 of the Public Records Act 1958 (PRA) have been selected for permanent preservation. If selected public records are digitised, then the original records are kept. Further details of this can be found on the UK Government's legislation website.

7) The documents are closed to the public for a period of 100 years, but do other individuals have access to the documents during that time? If so, who are those individuals (role, not personal name)?

Anyone can request a closed record by making an FOI request through our online catalogue Discovery. However, this would not necessarily result in the record being opened if the outcome of the FOI review is that the information requested is subject to FOI Act exemptions. Closed records can usually only be accessed by suitably authorised TNA staff or staff of the originating department. Under Section 4(6) of the PRA, the originating body has the right to request the temporary return of its own records. In such cases, the originating department has a duty to ensure the ongoing preservation and safe-keeping of the records. In exceptional cases, and with the agreement of the originating body, The National Archives may facilitate access to closed records by individuals such as legal representatives or members of the law enforcement agencies. Further details of this can be found on the UK Government's legislation website.

8) Can the MoD, other Government Department or Official dispose of any of these documents within the 100 year period or will they remain intact for that period of time?

Public records transferred to The National Archives under Section 3 of the Public Records Act 1958 (PRA) have been selected for permanent preservation. If a record is transferred closed under FOI Act exemptions, then it is stored under special access-controlled conditions in The National Archives’ repositories and is then opened once the period of closure under the FOI exemption has expired or the originating body decides on reviewing the record that the FOI Act exemptions no longer apply.

Annexe

Exemptions applied

Section 36: Prejudice to Effective Conduct of Public Affairs

Section 36 (2) (b-c) exempts information from release if, in the reasonable opinion of a qualified person, disclosure of the information would, or would be likely to; (b)(i) inhibit the free and frank provision of advice, (b)(ii) the free and frank exchange of views for the purposes of deliberation, or would otherwise prejudice, or would be likely to otherwise prejudice,(c) the effective conduct of public affairs.

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.

With the agreement of the Qualified Person, who in this case is the Chief Executive and Keeper of The National Archives, in whose 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 -disclosure.

Considerations in favour of the release of the information includes 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; in this case the FOI process at The National Archives.

Additionally, given the high publicity of the 1994 Mull of Kintyre crash, there is a public interest in the release of the details of the closures of these records. Release will enable TNA to be fully transparent around the reasons the extracts are closed and make it clear that it is only withheld because they contain personal information relating to compensation claims. Disclosure would improve public confidence in the integrity of the FOI process and decisions made. Transparency would be in the public interest given the campaign for a public inquiry into the 1994 Mull of Kintyre Chinook crash is ongoing, and the general public interest in these records.

However, it is considered that the release of some of the information requested would likely inhibit the free and frank provision of advice and the free and frank exchange of views for the purposes of deliberation, and would otherwise prejudice the effective function of the FOI process. It is important that public officials are able to exchange views and make recommendations freely and frankly. To release some of the information requested would likely act as an inhibitor to necessary discussions, which would not be in the public interest, as this would be likely to prejudice The National Archives’ ability to carry out its statutory obligations in processing FOI requests. As such, release of some of the requested information would likely prejudice the effective conduct of public affairs.

It is important that there is a safe space for sensitive information produced by FOI officers in the course of their duties, in order that they might continue to carry out these duties effectively, and to ensure that the quality of decisions made are not prejudiced by a hesitancy in recording detailed information required for informed decision making. Disclosure would therefore likely cause prejudice in terms of what is often referred to as the chilling effect.

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

Although there is a risk of prejudice to the effective functioning of the FOI process, in this specific case, it is considered that there is a strong public interest in transparency concerning the justification for the closure of CJ 4/11275/1, CJ 4/11896/1, DEFE 25/1073/3 and DEFE 71/1616/1.

Further guidance on the application of this exemption can be found on the ICO website.

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 United Kingdom General Data Protection Regulation (UK GDPR).

In this case the exemption applies because the requested material contains information which would identify junior members of staff and sensitive personal information of a number of identified individuals assumed still to be living.

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 about their positions 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, positions and contact details of junior officials are withheld under section 40 (2) of the FOI Act.

Further guidance about the publication of junior staff namescan be found in this PDF from the ICO.

These individuals have a reasonable expectation of privacy which would not include the release of this information into the public domain by The National Archives during their lifetime. To do so would be likely to cause damage and/or distress and would be a breach of the first data protection principle, which is concerned with the fair, lawful and transparent processing of information of this kind.

Further guidance on the application of this exemption can be found on the ICO website.