Grâce à la liberté dans les communications, des groupes d’hommes de même nature pourront se réunir et fonder des communautés. Les nations seront dépassées.
Friedrich Nietzsche (Fragments posthumes XIII-883)

08-09 - Méandres des requêtes FOI



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 an 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.