1. Introduction
(a) This Protocol sets out the approach that will be taken by the Inquiry to the redaction of documents. Its purpose is to ensure that Material Providers and Core Participants understand how the Inquiry will prepare documents for disclosure and publication during the course of the Inquiry.
(b) This Protocol should be read in conjunction with the Inquiry’s Protocol on Documents.
(c) The procedures outlined below are not intended to cover every eventuality or every procedural issue that will arise. It follows that, where the interests of justice and fairness require it, the Inquiry may need to depart from this protocol in exceptional cases. Further, this protocol may be amended as necessary. Should the protocol be amended, the revised version will be published on the website.
(d) It is for the Inquiry to determine the relevance of any particular document and for the Inquiry to determine whether a redaction should be applied, whether or not that redaction has been requested by a Material Provider.
2. Definitions
(a) In this Protocol, any references to “information” includes documents and witness statements; and “document” or “documents” means anything in which information of any description is recorded, whether in paper or electronic form, and includes, but is not limited to, reports, reviews, board/committee minutes, legislation, letters/emails (internal and external), information from websites, policy documents and articles, and audio tapes of interviews.
(b) The Inquiry’s request for documents is wide ranging and may include a request for physical evidence: where it does, references in this Protocol to “documents” should also be taken to include references to physical evidence.
3. Purpose
(a) This protocol is designed to set out a consistent approach to redaction and to ensure that the Material Provider understands how the Inquiry will treat the information it intends to publish.
4. Disclosure Process
(a) The Inquiry will operate a three-stage disclosure process. First, it will make requests from Material Providers for documents which are considered to be of potential relevance to its Terms of Reference. The scope of each request will be set by the Inquiry’s legal team. It is important that the Inquiry receives documents from Material Providers in clean, unredacted form. Where Legal Professional Privilege, or another legal bar to disclosure exists, this must be discussed with the Inquiry’s legal team.
(b) There may be legal reasons why the Inquiry may need to apply redactions to documents before they are disclosed to Core Participants and subsequently to the general public via a public hearing or an investigation report.
(c) Second, where documents have been confirmed as relevant, Material Providers will have the opportunity to identify and request redactions on one or more of the reasons set out in Para 5(b).
(d) The Inquiry legal team will consider each request for redactions and will either: a. agree the request for redactions, apply them, and disclose the redacted versions to Core Participants; or b. reject the request for redactions. In such circumstances, the Material Provider will be given a short opportunity to apply for a Restriction Order to prevent disclosure of the information which it seeks to redact. Subject to such an application, documents may be disclosed to Core Participants with provisional redactions applied, pending the outcome of the application.
(e) Third, documents will be disclosed to the public, in redacted format where appropriate, through the Inquiry’s public hearings, unless a restriction order applies.
5. Redaction of documents
(a) Subject to any restriction orders or notices which may be made, under section 18 of the Inquiries Act 2005, the Chair must take reasonable steps to ensure that members of the public may have access to a record of evidence produced at the Inquiry. The Inquiry will publish such documents following the relevant hearing, having regard to the Inquiry timetable.
(b) There are a number of reasons why documents or parts of documents provided to the Inquiry should be withheld from wider dissemination and / or redacted prior to disclosure to Core Participants or inclusion in evidence for public hearings. These include the following:
(i) the information in question is sensitive and irrelevant to the Inquiry’s work;
(ii) the information in question constitutes personal data within the meaning of data protection legislation, further disclosure of which is prohibited by that legislation;
(iii) the information in question is covered by a Restriction Notice made under section 19(2)(a) of the Inquiries Act 2005;
(iv) the information in question is covered by a Restriction Order made by the Chairman for the reasons set out in section 19(3) to (5) of the Inquiries Act 2005 which include orders conducive to the Inquiry fulfilling its terms of reference or necessary in the public interest having regard (inter alia) to considering any conditions as to confidentiality which apply to the circumstances in which the information was obtained and avoiding:
- death or injury
- damage to national security or international relations
- damage to the economic interests of the United Kingdom or any part of the United Kingdom
- damage caused by disclosure of commercially sensitive information
- harm or damage to the public interest on grounds of public interest immunity applies.
(c) Where, in response to a request from the Inquiry a Material Provider is collating material for disclosure to the Inquiry, the Inquiry will ask it to take the following approach to the issue of redaction, taking into account all of the circumstances of the Inquiry’s request.
(d) The Inquiry will ask the Material Provider to provide a copy of the material with highlighted redactions applied (which can be read through to the underlying text) that the Material Provider considers should be applied in line with the matters set out in paragraph 5 above. Any documents or parts of documents in respect of which redactions are sought must be highlighted and an accompanying narrative provided which explains the reasons why the redaction in question is sought.
(e) If, and to the extent that the Material Provider wishes to rely on legal professional privilege or another legal rule as a reason for not producing a document, part document or part of a document, the Material Provider must identify the document in question and specify the reason in writing to the Solicitor to the Inquiry, together with a summary setting out why the Material Provider believes that the legal rule prohibiting disclosure to the Inquiry applies. Before asserting legal professional privilege, Material Providers should consider carefully whether they should waive that privilege to assist the Inquiry in its work in the public interest.
(f) The Inquiry expects Material Providers to adopt a measured approach when seeking redactions. The Inquiry will consider proposed redactions raised by Material Providers when it is reviewing material provided. It will only redact information where the case for this is properly made out, bearing in mind the applicable tests in the Inquiries Act 2005, and other relevant legislation and recognising the need for the Chair to ensure that members of the public are able to view a record of evidence and documents provided to the Inquiry in accordance with the provisions of section 18 of the 2005 Act.
(g) The Inquiry will consider all requests for redaction carefully and in accordance with the principles above. Where an application for redaction is determined and the Inquiry does not consider that the ground for the redaction in question is made out, it will notify the Material Provider concerned prior to the document in question being disclosed without the redactions applied.
6. Redaction of Personal Information
The Inquiry has its own obligations under data protection legislation and will review all documents prior to their disclosure to ensure compliance with this legislation and that a consistent approach to DPA redactions is applied.