The Access and Disclosure Protocol governing the work of the Gosport Independent Panel (GIP) has already been made available to you but for ease of reference a further copy is attached at Appendix A. We are grateful for the work organisations have undertaken in order to provide documents to us unredacted which is of considerable help to us as we undertake the tasks assigned to us in our Terms of Reference (Appendix A within Access and Disclosure Protocol).
We have always recognised that some very limited redaction would be necessary prior to publication of our Report in order to secure compliance with existing legislation such as the Data Protection Act 1998. This redaction framework clearly sets out the expectations of the GIP in relation to the limited redaction it is prepared to accept and the process that is to be followed by all organisations.
1. General principles
The Panel’s fundamental aim is to ensure maximum possible disclosure of material, first to the families and then to the wider public. Redaction must be kept to a minimum, while complying with any substantive legal barriers to disclosure.
Information already in the public domain such as that relating to evidence given in a Coroner’s Court should not be redacted retrospectively unless a specific barrier exists in law.
Where information is redacted this should be obvious to the reader. The majority of redactions are likely to be in relation to personal data and should be identified by the use of Code A (see paragraph 3.2). Redactions other than for protection of personal data should be accompanied by the use of a code, as shown in the relevant section below.
All proposed redaction must be specifically and individually notified to the Panel. If no such notification is received, the Panel will assume that the organisation is agreeing to disclosure should the Panel decide to do so.
2. Guidance on specific areas
Information relating to the deceased
In general, no information relating to the deceased should be redacted in the material provided to the Panel.
However, in the case of very sensitive, personal and/or emotive material which the information holders or the Panel encounters and which relates to the deceased or their families, the information may be redacted prior to disclosure into the public domain but may be made available for the families if they so wish. The Panel will be consulting with individual families to ascertain their wishes in relation to such material. Should they wish any information to be protected from public disclosure but made available to them privately, they will be supported when this takes place. Information redacted in accordance with these principles or those set out in paragraph 3.2 below should be identified by the use of Code A.
3. Identities of individuals
Redaction will be unnecessary if it is known that an individual has given consent to disclosure explicitly or implicitly – see also paragraph 1.4.
The advice of the Information Commissioner has been sought in relation to the work of the GIP and other independent panels and his view is that, in the light of the age of much of the information and the overarching public interest in bringing the project to a successful conclusion, where redaction of identities is required, this will be accomplished by the redaction of names, addresses, dates of birth and signatures only. As the Commissioner has also made clear, the existence of a very slight hypothetical possibility that someone might be able to reconstruct other data in such a way that the data subject is identified is not sufficient to require redaction of that data.
4. Redaction other than for personal or sensitive personal data
Legal and professional privilege
Information holders may consider some records to be potentially covered by legal and professional privilege (LPP), though given the passage of time and events this will have been eroded in many cases. In line with the principle of maximum possible disclosure, the Panel’s expectation is that information holders will waive LPP where the issue arises. The Panel will consider on a case-by-case basis any exceptional circumstances where information holders believe this not to be possible.
Where stakeholders consider that information should be redacted on the grounds of legal and professional privilege, the words Code B should be shown alongside the specific redaction.
Information provided in confidence
For information provided in confidence, information holders should refer to the requirements of Section 41 of the Freedom of Information Act, which sets strict criteria which must be met if information is to be protected from disclosure.
The Act requires that for information to be exempt from release it must have a quality of confidence and can only have been shared even within an organisation on a very limited basis. It is also clear that this exemption can only apply where there is an external third-party relationship relevant to the issue of confidence. Finally, information can only be exempt from release in instances where disclosure would represent a breach of confidence that would be legally actionable (and even here, the Panel would wish to take a view as to the likely risk of this occurring and indeed the success of any such action). The Panel’s view is that the legal defence to any breach of confidence based on disclosure in the public interest is of over-riding importance in the context of its work. Given this and the length of time since confidence was originally claimed, it expects that very little, if any, of the information in existence to be considered to be confidential in the current climate.
Where stakeholders consider that information should be redacted on the grounds of information provided in confidence, the words Code C should be shown alongside the specific redaction.
Other redaction issues
Information holders who believe that specific information cannot be released unredacted for reasons not discussed above should raise the issue with Christine Gifford who is leading on access and disclosure for the GIP.
Gosport Independent Panel