Freedom of information: Redact, but don’t rewrite
11 August 2010
Gradwick v IC and the Cabinet Office (EA/2010/0030) – Read decision
The Panopticon Blog has highlighted an interesting recent case in the General Regulatory Tribunal which may prove to be useful in the many different situations where documents are disclosed in redacted form.
The General Regulatory Tribunal (‘the Tribunal’) regulates information rights, amongst other things. Simply, the Tribunal held that if parts of documents disclosed under the Freedom of Information Act 2000 are to be redacted (blacked out), it is not good enough to transcribe a new document with the offending parts removed. This is because, as the Tribunal said:
it is at least arguable that a document which sets out the passages that contain the information to be disclosed, but which has the effect of obscuring the nature and extent of the information which has been withheld, does not inform the party making the request whether or not it holds information of the description specified in the request, for which exemption is claimed.
The Appellant, Mr Gradwick, made a request to the Cabinet Office for disclosure, under the Freedom of Information Act 2000, of the Cabinet Office’s Manual of Protective Security. The Manual contains detailed information and guidance on the controls required to protect government assets and information which must remain confidential in the national security interests of the country.
The document was disclosed, due to administrative complications, with only extracts from the Manual rather than the original formatting with blanked out parts.
The Tribunal said that the better approach would have been in line with general practice, which is
one in which the extent of the omitted material is indicated by blank spaces and in which, to the extent possible, headings or other indications are retained or inserted to give a fair indication, to both panel members and those presenting submissions, of the broad nature of the information that has been withheld.
Moreover, “[a]nnotating the resulting document to indicate the exemption relied on to justify each omission is also a valuable assistance in cases where different exemptions apply to different sections of the document or information.”
Why is this decision interesting? Because there are countless scenarios in many kinds of litigation where documents are disclosed in redacted form. Secret evidence has been hot topic in the courts recently, with the higher courts of appeal emphasising how important full and frank disclosure is, even in cases involving sensitive security material such as Mr Gradwick’s. The Tribunal has here emphasised that even in the case of redacted documents, it is crucial to disclose the original document with its formatting, headings etc. because otherwise, the discloser is not giving enough indication of how much, and to an extent what, has been missed out.
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