Tuesday, 2 August 2011

Disclosure in the public interest - Hillsborough

In April 1989 my main concerns were trying to work out how to play the chords to Def Leppard songs and getting my wizard character to 4th level in Dungeons and Dragons. If I wanted to go and see football at the weekend, I would ask my mum if it was OK to go down to Leeds Road and see Town get beaten. The Hillsborough disaster of that month was a shock to me as to so many others who'd stood on terraces and surged towards steel fences and gates at matches before. It could have been any of us. At any game.

I lived in Liverpool for a large chunk of the 90s and the events of Hillsborough were in that city beyond an 'accident' or 'disaster'. They were - and I imagine that they still are - seen as an injustice. For football fans of all teams in the context of the 80s, Hillsborough was the culmination of a decade of prejudicial treatment - wire cage fences, ID cards and media derision. Fans were seen as 'animals' and this prevailing attitude is seen to have fed the circumstances - the state of the stadium, the nature of the policing - that led to the tragedy of that day. Hillsborough was then, combined with surge in football's popularity following the 1990 World Cup, a watershed in the development of the game as we know it now.

Therefore it was with interest that a recent ICO decision notice
has ruled that copies of all briefings and meeting notes provided to Margaret Thatcher in April 1989 relating to the Hillsborough disaster should be disclosed, overruling the Cabinet Office's application of Section 31 'Law enforcement' and Section 35 'Formulation of government policy'. Some information was ruled by the ICO to be correctly exempted under Section 40(2), 'Personal information'.

This has been covered in depth by the BBC, but I felt it was worthy of note in recognising that this FOI request concerned information that is at one level 'history' and at the same time something very 'present' and emotive in the lives of so many.

In terms of Section 31 the Cabinet Office argued:

The public authority has argued that disclosure of the information in question would harm the relationship between the police and general public and that this would result in a reduction of willingness on the part of the public to cooperate with and assist the police, by, for example, providing information to the police.

Despite the age of the information - remember Hillsborough happened the year the Berlin wall fell and George Bush Snr was inaugurated - the ICO ruled that this, arguably very general, application of the exemption was still relevant and engaged. The singular nature of the event is the only thing that can still allow this exemption to apply.

Section 35, must seem for FOI campiagners one of those exemptions that has the potential to undermine the legislation, suggesting locked doors, informal conversations and Parliamentary privilege. The Cabinet Office argued that disclosing the information would have a 'chilling effect' on ministerial discussions. I believe chilling effect arguments can be valid. People need a space to think freely without the fear that an idea floated, then quickly shelved in working towards an objective, is not likely to be disclosed. Such thoughts do not need to be paraded on the same level as the finally agreed objective, which of course should be transparent under FOI.

Yet whilst once again accepting that the exemption was engaged around the type of information requested, the Commissioner did not consider it 'conceivable that the disclosure would have resulted in a chilling effect to Ministerial discussions at the time of the request, given the age and unique subject matter of the information in question'. The ICO emphasised that the information was 20 years old at the time of the request, in the context of the current Government aiming to reduce the traditional 30 year threshold.

For the ICO, in the case of both exemptions, the public interest test falls down on the side of disclosure rather than exemption. By his own admission there is a 'very significant and weighty public interest in favour of disclosure of information relating to the Hillsborough disaster.' I'd have to agree with this one. I don't think that the public interest is always on the side of disclosure but this was a day that affected so many. Firstly in the tragic loss of life and secondly. in the fundamental changes in the way the national game was organised and developed over the next decade.

A difficult and high profile case for the ICO but an example of the Act allowing access to information around central government decision making and the power of public interest. Will this disclosure be more use to the historian in making sense of events or the families in search of justice? Impossible to say. FOI can, at least, provide the information they need to get started or just to carry on the fight.

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