Albert Moisiu (l'un des traducteurs des
PJFiles) - DÉC 2009
So, what has the 'old
fart' got to say this time?
With respect to the
Maddie Case the term "Freedom of Expression" has been
getting an extensive airing in recent weeks (November/December 2009),
not least, to my mind, the McCann's seemingly distorted perspective
thereof, but, putting that to one side, I was asked a while ago to
write something on a sightly different, though related, venture –
some might think 'adventure' – using the UK Freedom of Information
Act.
While the story as
written here is fairly short (for those who may be familiar with my
previous epistles) volume is made up in spades with the appendices
which arose during the nearly 500 days that passed during the
venture.
I have not included all
the documents that went back and forth between the various agencies
and myself during that period, limiting this tale to only those that
still give me reason to pause and consider their content. The initial
summary shows 'hyper-links' to attachments.
I have also removed
certain of my personal particulars, and reduced the names of the
persons in the other agencies to initials because – even though
they are all well known in the FOI public arena (and I have confirmed
that) - I have not sought their specific permission to disclose the
identities in public.
"How to tell a
story: Begin at the beginning, … "
The journey began back on
11 August 2008 when I submitted a FOI request to the UK Home Office
entitled "Freedom of Information Request: Press reporting gag in
the case of Madeleine Beth McCann.". [1]
Some might recall the
various FOIA templates that I posted on the 3A forum around that
date, and this was one of them. Those people might also recall the
seemingly interminable wait for an intelligible response between
August and December as opposed to the monthly "Please Wait until
the 'Public Interest Test' is completed."
On 28 January 2009 I
received, as did many other people, the eventual response. [2]
On 31 January, I
submitted a request for an Internal Review. [3]
Over the ensuing five
calendar months there were promises to deliver the report of the
Internal Review, followed by corresponding failures to execute those
promises, prompting me, on 2 July 2009, to submit a formal complaint
to the Information Commissioner's Office (ICO). [4]
Interspersed with a
little more information [5],and some additional prompting from me, by
20 October 2009 the ICO had managed to elicit yet more promises for
the delivery of the Internal Review [6], the first versions of which
came to light on 23 and 30 October 2009. [7]
Although aghast at what I
read in those missives I withheld my views at that time, not wishing
to jeopardise the tenuous link with the Home Office. The following
week, however, yet again having received
none of the promised responses from them, when I received the ICO
communication of 5 November 2009 [8] in which, while not compromising
their independence, the ICO appeared to be unimpressed with handling
of the entire matter by the Home Office agents, my response (7
November 2009) was unequivocal. [9]
I admit it. I had finally
come to the point of losing my composure.
"… continue until
you reach the end, ..."
Said reaction on my part
appeared to shake the tree, with confirmation from the ICO [10] that
yet another date had been given to them by the Home Office, and this
time, finally, on 27 November 2009 I received the Home Office
response [11] that I had fully expected to receive back in September
2008.
"… then stop."
So, why do I not stop
here? Have I not received the answer that I expected? As regards my
expectation, I was not surprised by the final response because I have
always held the belief that any limitations in media reporting would
be due to owner/editor edict within the media operation concerned.
The question posed to the Home Office was to test that belief.
As to the receipt of
information, the simple answer is "Yes", but I have, in
fact, received quite a bit more information than expected and this,
when coupled with some additional factors in hindsight, prompts some
further thought.
At the outset this was a
fairly simple question, which may or may not have had some minor
relevance in the Public Interest Test, but certainly it was one that
should have been put to bed in a secure manner (unlike Ocean Club
Apartment 5A) so that the 'adults' in the Home Office could go off to
'wine and dine' (and maybe take in a blue-film or two) on the more
pressing matter of the impending MPs 'Tapas Bar' revelations later
publicised via the Daily Telegraph.
Instead of settling this
trivial matter quickly and quietly, in the same way as the
dozen-or-so other FOI requests I had submitted to various agencies
had been settled, it was allowed to become 'abducted' for some
reason, or in some way, and that – he says, donning his conspiracy
hat for a moment – is perplexing in itself.
Was this 'abduction' of
the original question – like in Praia da Luz – a result of sheer
stupidity on someone's part? Possible but unlikely, in my view.
Did the excessively
flowery wording (verbose legalistic character, if you wish) of the
original request cause certain panties to pad or knickers to knot,
perhaps? Again, I think not.
Was it simply a lack of
attention during the period of movement of ministers (McNutty and
Jackboot Jacqui being the most well-publicised), along with the
likely preparations being made in readiness for the Expenses'
backlash? A distinct possibility, I feel, and something that might
have affected many other requests for information during that same
period.
Conversely, had the
close-shave that had arisen from the 'FCO diplomatic e-mail'
revelations that had gone all the way to the Tribunal via the ICO
caused all remaining unanswered requests to be vetted multiple times
over? Another distinct possibility, I feel.
Or, worst case
(conspiracy-alert), was at least part of the delay, not to mention
the eventual rationale provided by the Home Office on 30 October
2009, intended to convey that there was, indeed, some 'fire' emitting
'smoke' with respect to the failure of UK authorities to communicate
information to the Portuguese authorities?
If such a thing were
intended, and the 'fire' was barely containable within the ambit of
the original request – that is, had the request been worded in a
slightly different way then the existence of the 'fire' would have to
have been fully revealed – then that certainly would be food for
further thought.
So, what was behind the
'defined' question?
As I intimated in my
diatribe of 7 November 2009, just how did a supposedly highly-
intelligent and literate
bunch of media-savvy political careerists manage to convert a
question about a "Press reporting gag" on the British media
into a question about "any restrictions that might have been
placed on the sharing of information with the Portuguese authorities
following a formal request for Mutual Legal Assistance (MLA)
from them."
Re-reading the documents
I could venture a few ideas, but they would be little more than mere
points of semantics and supposition.
Alternatively, I could
let enough time pass to avoid being labelled 'vexatious' and pose
this question to the people concerned, but, really, in the context of
the case, I feel the point is already moot and, anyway, I do not
think that I could wait another 480 days for an answer.
Freedom of Information
Request: Press reporting gag in the case of Madeleine Beth McCann.
With the current
suspension of the inquiry into the disappearance of Madeleine Beth
McCann, who reportedly disappeared from her bedroom in Praia da Luz,
Algarve, Portugal some time between 21:00 and 22:00 on the night of 3
May 2007, and the consequent release in Portugal of the detailed
papers from the inquiry case file, the grossly unbalanced reporting
of the British 'media' evidenced by the failure to fairly present
even the most basic facts uncovered by the joint Anglo-Portuguese
Inquiry team has given rise to thoughts about there being a
restriction order having been placed on the British press,
specifically in respect of those persons who, while not directly or
biologically related to Madeleine Beth McCann, were nevertheless
directly associated with her disappearance, namely Dr David Payne and
his partner, Fiona Payne; Dr Russell O'Brien and his partner, Jane
Tanner; Dr Matthew Oldfield and his partner, Rachel Mampilly
Oldfield.
This is a request for
information, namely for any and all records or documents or extracts
thereof reporting or evidencing that at any time on or after 4 May
2007 any form of limitation or restriction or injunction or
moratorium over the free and fair and unfettered disclosure of any
aspect whatsoever of, or any detail whatsoever of, the Inquiry into
the disappearance of Madeleine Beth McCann and/or over any
information pertaining to any persons directly associated with that
disappearance and/or directly associated with the Inquiry, was
requested, instructed and/or obtained by any person, or persons,
whether employed at any level within or providing any service within
the Home Office or any of its ancillary operations, including, but
not limited to, the Central Office of Information.
It seeks further:
(a) the identity, or
identities, of any and all the persons by whom,
(b) the date and time at
which, and
(c) the means of
communication through which, any such limitation or restriction or
injunction or moratorium referred to above was requested, instructed
and/or obtained.
On an administrative
point, I request that I be afforded both an acknowledgement of
receipt and a response to the above request for information in
accordance with the time prescribed in Section 10 of the Freedom of
Information Act 2000.
Further, I request that
such acknowledgement of receipt and response be communicated and
delivered to my electronic mail address given hereunder, failing
which, by letter to the postal address provided below.
I am writing further to
my correspondence on the 16th December 2008. We are now in a position
to offer a full reply to your request. I would like to apologise for
the length of time it has taken to respond to your request. This
delay has been due to giving full and due consideration to the public
interest test together with the necessity to consult with other
agencies.
It is noted that your
request was to essentially seek information for any and all records
or extracts thereof reporting or evidencing that at any time on or
after 4th May 2007 any form of limitation or restriction or
injunction or moratorium over the free and fair and unfettered
disclosure of any aspect whatsoever of, or any detail whatsoever of,
the inquiry into the disappearance of Madeleine Beth McCann. The
request was also seeking information pertaining to any persons
directly associated with that disappearance and/or directly
associated with the Inquiry, was requested, instructed and/or
obtained by any person(s) whether employed at any level within or
providing any service within the Home Office or any of its ancillary
operations, including, but not limited to, the Central Office of
Information and the identities of all persons the dates and the means
of communication through which such limitation or restriction was
obtained.
Your request for
information has been considered under the Freedom of Information Act
2000 (the Act) and we are now able to provide you with a substantive
response to your request.
Section 1 of the Act
places two duties on public authorities when handling requests. The
first of these duties, provided at s1(1)(a) is to confirm or deny
whether the information requested is actually held by that authority.
The second duty is for that information to be disclosed where it has
been confirmed that it exists. This is provided under s1(1)(b).
The Home Office can
neither confirm nor deny that we hold information relevant to your
request as our duty under s1(1)(a) does not apply by virtue of the
following provisions of the Act:
• Section 27(4) –
prejudice to International Relations;
• Section 31(3) –
prejudice to Law Enforcement activities; and
• Section 38(2) –
endangering Health & Safety.
This letter therefore
also serves as a refusal notice under s17(1) of the Act.
Furthermore, the Home
Office will not comment on any of the information contained in Goncal
Amaral’s book, ‘A Verdade da Mentira’ as it would potentially
undermine ongoing investigations.
There are a number of
sensitivities relevant to your request, given that Madeleine McCann
is still missing and the investigation is still ongoing. Confirming
or denying whether any information is held could undermine the
investigation, prejudice international relations and could endanger
the health and safety of members of the
public.
We have considered public
interest considerations in making our decision and we have attached
these to this letter. We believe that, at this time, the public
interest strongly favours neither confirming nor denying that the
information you have requested is or is not held by the Home Office.
This response should not
be taken as conclusive evidence that the information you have
requested either does or does not exist.
If you are dissatisfied
with this response you may request an independent internal review of
our handling of your request by submitting your complaint within two
months to the below address quoting reference CR10041
During the independent
review the department’s handling of your information request will
be reassessed by an official that was not involved in providing you
with this response. Should you remain dissatisfied after this
internal review, you will have a right of complaint to the
Information Commissioner as established by section
50 of the Freedom of
Information Act.
I realise that you may be
disappointed with this response. However we have considered your
request with great care, and the Home Office always seeks to provide
as much information as it is able to.
Public Interest
Considerations
s.17 – Refusal of
request
(1) A public authority
which, in relation to any request for information, is to any extent
relying on a claim
that any provision in
part II relating to the duty to confirm or deny is relevant to the
request or on a
claim that information is
exempt information must, within the time for complying with
section1(1), give
the applicant a notice
which -
(a) states the fact,
(b) specifies the
exemption in question, and
(c) states (if that would
not otherwise be apparent) why the exemption applies.
s.27 – International
Relations
(1) Information is exempt
information if its disclosure under this Act would, or would be
likely to, prejudice,
(a) relations between the
United Kingdom and any other state,
(b) relations between the
United Kingdom and any international organisation or international
court
(4) The duty to confirm
or deny does not arise if, or to the extent that, compliance with
section 1(1)(a) –
(a) would, or would be
likely to, prejudice any of the matters mentioned in subsection (1)
s.31 – Law Enforcement
(1) Information which is
not exempt information by virtue of section 30 is exempt information
if its
disclosure under this Act
would, or would be likely to, prejudice-
(a) the prevention or
detection of crime,
(b) the apprehension or
prosecution of offenders,
(c) the administration of
justice,
(4) The duty to confirm
or deny does not arise if, or to the extent that, compliance with
section 1(1)(a) would, or would be likely to, prejudice any of the
matters mentioned in subsection (1)
s.38 – Health &
Safety
(1) Information is exempt
information if its disclosure under this Act would, or would be
likely to-
(a) endanger the physical
or mental health of any individual, or
(b) endanger the safety
of any individual.
(4) The duty to confirm
or deny does not arise if, or to the extent that, compliance with
section 1(1)(a) would, or would be likely to, prejudice any of the
matters mentioned in subsection (1)
Harm and prejudice
The investigation into
the disappearance of Madeleine McCann is still ongoing. There are
significant unknowns in relation to her disappearance. Leicestershire
Constabulary are the lead force in the UK dealing with this
investigation but the principle investigation agency is Policia
Judiciara (PJ) in Portugal. We believe
that significant harm to
the investigation could result from either confirming or denying that
we hold the information you have asked for.
Should this investigation
lead to a prosecution, saying whether or not this information is or
is not held by the Home Office would risk undermining the human
rights of any suspect to a fair trial and the rights of a victim,
particularly if the prosecution would fail due to such an
announcement.
If the Home Office was to
either confirm or deny that it did or did not hold any information
that was gathered in the course of this investigation, it might risk
compromising the conduct of this investigation. This could ultimately
prejudice the administration of justice. In any event, to confirm or
deny that any such information that was or was not obtained in the
course of a criminal investigation, either voluntarily or through
compulsory powers, ought not to be generally disclosed, save as far
as it is necessary for the purposes of establishing or
defending rights in
litigation.
There is consequently a
strong public interest in ensuring that evidence is not contaminated
for any future trial. In addition there is a strong public interest
to preserve relations with the Policia Judiciara (PJ) in Portugal
whilst Madeleine remains missing.
Two of the Home Office’s
objectives are to support the efficient and effective delivery of
justice, and to lead visible, responsive and accountable policing.
The manner in which the Home Office works to support the Police
Service as a whole is one of our core business functions.
If the Home Office
prejudiced such a high-profile and sensitive investigation by
confirming or denying that we either do or do not hold any of the
information that you have requested, we would be seen as working
against the efforts of both UK and Portuguese policing authorities,
undermining their determined efforts to locate Madeline McCann and
her assailants. This would not be in the best interests of the
public..
Any prejudicial effects
to these ongoing investigations could jeopardise the health &
safety, of Madeline McCann, in that it might significantly affect the
chances of her being found. There is no actual public interest served
in releasing information that may jeopardise the health & safety
of any individual.
There is a strong public
interest in the UK maintaining the arrangements it currently enjoys
with other States in matters of judicial and mutual legal cooperation
in criminal and other matters. Any act that would prejudice this
investigation may discourage other States with complying with
reasonable requests issued by the UK or from pursuing legitimate
investigations in the UK for fear that the product of such requests
or investigations may be disclosed to private citizens.
The Home Office of the
United Kingdom recently released a standard form letter in response
to requests made under the Freedom of Information Act concerning
aspects of the investigation into the disappearance of Madeleine Beth
McCann.
Errors reflected in the
section entitled 'Public Interest Considerations' notwithstanding, it
is claimed, and I quote two sentences from the first paragraph of the
section entitled 'Harm and prejudice': "The investigation into
the disappearance of Madeleine McCann is still ongoing.", and
"Leicestershire Constabulary are the lead force in the UK
dealing with this investigation but the principle [sic]
investigation agency is Policia Judiciara (PJ) in Portugal."
It is commonly known that
the case file of the Polícia Judiciára (PJ) was handed over to the
judicial authorities in Portugal, namely the Ministério Público
(MP), headed by the Procurator-General of the Republic who announced
publicly on the Ministry's official website on 21 July 2008:
Por despacho com data de hoje (21.07.2008) proferido pelos dois magistrados do Ministério Público competentes para o caso, foi determinado o arquivamento do inquérito relativo ao desaparecimento da menor Madeleine McCann, por não se terem obtido provas da prática de qualquer crime por parte dos arguidos.
II Cessa assim a condição de arguido de Robert James Queriol Evelegh Murat, Gerald Patrick McCann e Kate Marie Healy, declarando-se extintas as medidas de coacção impostas aos mesmos.
III Poderão ter lugar a reclamação hierárquica, o pedido de abertura de instrução ou a reabertura do inquérito, requeridos por quem tiver legitimidade para tal.
IV O inquérito poderá vir a ser reaberto por iniciativa do Ministério Público ou a requerimento de algum interessado se surgirem novos elementos de prova que originem diligências sérias, pertinentes e consequentes.
V Decorridos que sejam os prazos legais, o processo poderá ser consultado por qualquer pessoa que nisso revele interesse legítimo, respeitados que sejam o formalismo e limites impostos por lei.
In the first paragraph it
is stated explicitly
foi determinado o arquivamento do inquérito relativo ao desaparecimento da menor Madeleine McCann, in English: "the inquiry relating to the disappearance of the minor Madeleine McCann was archived"
with effect from the date
of his officially published instruction ('despacho'), namely, 21 July
2008.
Paragraph IV of the above
despacho states, in English,
"the inquiry can be re-opened by the Ministério Público or the request of an interested party should new evidence come to light that would give rise to the need for serious, relevant and consequential police work."
The consequence of these
two official pronouncements is, therefore, that, contrary to the
status implied by the Home Office, the investigation in Portugal is
not ongoing. With that principal investigation being in legal
abeyance pending the receipt of new evidence, any and all evidence
held by the Leicestershire Constabulary acquired during their support
role in that principal investigation should have been passed to the
judicial authorities in Portugal. Failure to have done this might be
construed to be obstruction of justice.
Further, any documented
evidence in that principal investigation that has been retained by
the Leicestershire Constabulary belongs to the judicial authorities
in Portugal and, therefore, should be subject to the same legal
provisions that apply to the documented evidence held in Portugal,
specifically, as stated in paragraph V of the above despacho, it
should be made available for consultation by any person, subject to
the formalities and limits imposed by the law (in Portugal), who can
show a legitimate interest in the documents of the case file.
Among other things,
Articles in the Portuguese Penal Process Code stipulate that,
- at 86(1), a criminal case is public, subject to restrictions imposed by (Portuguese) law;
- at 86(6), the publication of a criminal case implies the right of the general public to hear, the right of the media to publish, and the right of anyone having legal cause to obtain copies, extracts or certificates of documents pertaining to the case;
- at 88, the media are expressly permitted, within the limits of the (Portuguese) law, to publish information about the case. There is no mention in that article of any limitation prescribed at the whim of a foreign government;
- at 90(2), other persons are permitted, without prohibition, to read details of the case published through the media;
On 4 August 2008 access
to the case file was granted to the 'media' by the Portuguese
authorities. In compliance with Portuguese law certain documents had
been withheld by the Portuguese authorities for reasons recorded in
the file.
It should be noted that
the term 'media' (comunicação social) above is not limited solely
to organs of the Portuguese press but, rather, it encompasses every
organ of communication to people in general in every country
throughout the world. Hence, the 'media' in general, anywhere in the
world, is deemed to have a legitimate interest in the documents
contained in the case file.
It is, therefore, very
much in the Public Interest to know whether any organ of the
Government of the United Kingdom has placed any restriction or
limitation on the reporting of any facet of this case, save for those
already specifically excluded by Portuguese law, by any or all media
organisations in the United Kingdom.
In considering this
request, read together with the response already received from the
Home Office, I submit that:
- Section 27 of the Freedom of Information Act as an exception has no bearing on this question other than as an attempt by the Government of the United Kingdom to avoid embarrassment, which is not a valid foundation for exception;
- Section 38 of the above Act as an exception has no foundation because the condition of the missing child, whatever that might be, cannot be affected by the disclosure of the existence or otherwise of a 'gag' on the British media;
- Section 31 of the above Act has no foundation due to the fact that, as demonstrated above, the principal investigation in Portugal is no longer ongoing.
It is made clear here that should there be, outside the principal case, one or more investigations into the disappearance of Madeleine Beth McCann mounted by or under any British authority alone, then this request does NOT seek to know any information about that, or those, investigations. This request is focused entirely upon material pertaining solely to the principal investigation.
I reiterate the original
request submitted on 11 August 2008:
This is a request for
information, namely for any and all records or documents or extracts
thereof reporting or evidencing that at any time on or after 4 May
2007 any form of limitation or restriction or injunction or
moratorium over the free and fair and unfettered disclosure of any
aspect whatsoever of, or any detail whatsoever of, the Inquiry into
the disappearance of Madeleine Beth McCann and/or over any
information pertaining to
any persons directly associated with that disappearance and/or
directly associated with the Inquiry, was requested, instructed
and/or obtained by any person, or persons, whether employed at any
level within or providing any service within the Home Office or any
of its ancillary operations, including, but not limited to, the
Central Office of Information.
It seeks further:
(a) the identity, or
identities, of any and all the persons by whom,
(b) the date and time at
which, and
(c) the means of
communication through which, any such limitation or restriction or
injunction or moratorium referred to above was requested, instructed
and/or obtained.
For the purposes of this
complaint, and due to the elapse of time during which certain
information has become public knowledge, I will reduce the request to
its simplest form in the hope of a simple, one-word response – a
Yes, or a No:
Has any organisation in
the British media been restricted by any organ of the British
Government from freely and fairly disclosing anything pertaining to
the principal investigation as documented in the case file released
by the Portuguese authorities on 4 August 2008?
Prevarication in the form
of a mere re-issuance of the standard form letter already received
will be taken to be an affirmative response.
