INQUIRY PROTOCOL RELATING TO RECEIPT AND HANDLING OF DOCUMENTS, INCLUDING REDACTION

INQUIRY PROTOCOL RELATING TO RECEIPT AND HANDLING OF DOCUMENTS, INCLUDING REDACTION

Introduction

1.

This protocol sets out the approach that will be taken with regards to the handling and redaction of documents received by the Inquiry, as well as the approach to the provision of such documents to third parties, including the public. The procedure and conduct of a public inquiry are such as the Chairman may direct, subject to the provisions of the Inquiries Act 2005 (the “Act”) and the Inquiry Rules 2006 (SI 2006/1838) (the “Rules”). Therefore, this protocol is subject to, and should be read in conjunction with, the Act and the Rules which are available on the Inquiry website.

2.

Two matters are to be noted at the outset. First, as is well known, there are a number of ongoing police investigations into some of the events which are covered by the subject matter of the Inquiry. Those might lead to criminal proceedings. It is of obvious and paramount importance that the work of the Inquiry does not risk prejudicing those investigations or any subsequent criminal proceedings. It is considered that, properly managed, the Inquiry can take Part 1 of its work forward without giving rise to such a risk. However, the Inquiry‟s approach will need to be tailored and subject to ongoing review to ensure no such risk is created.

3.

Secondly, in order to operate effectively and efficiently, the Inquiry needs to maintain an element of flexibility. Procedures may need to be adopted, or adapted, in order to enable it to do so.

4.

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 in keeping with the Chairman‟s obligations to act fairly and avoid unnecessary cost. Should the protocol be amended, the revised version will published on the website.

Definitions

5.

In this Protocol: “CP” means Core Participant; “POI” means “Provider of Information” (and includes any CP who has been asked or required to provide information to the Inquiry); 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, governing/constitutional documents, legislation, letters/emails (internal and external), information from websites, guides/codes of conduct, policy documents and articles, and audio tapes of interviews.

6.

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.

Purpose

7.

This protocol is designed to facilitate the prompt delivery of information to the Inquiry by ensuring that that all Core Participants, providers of information, and the public understand;

i. how the Inquiry will treat information it receives;

ii. the procedure to be followed in respect of applications to redact, or summarise, documents where such action is necessary and in accordance with the law; iii. the procedures in relation to the redaction process;

iv. the procedure for making applications for restriction orders;

v. the procedure to be adopted for the provision of information to Core Participants, which may include the provision of documents initially in redacted form.

Provision of information to the Inquiry

8.

POIs, including legal representatives, should provide information requested by the Inquiry together with any other information they consider relevant within time limits specified by the Inquiry. POIs are required to undertake comprehensive, thorough

and rigorous searches in response to a request for information. In the event that an extension of time is sought, an application to the Chairman in writing, through the Solicitor to the Inquiry, should be made as soon as possible.

9.

In view of the protections afforded by the procedure set out below with regard to the redaction of documents, the provision of information to the Inquiry must not be delayed on the grounds that POIs may seek the redaction of a document, or part of it, before it is disclosed to a CP or before it is published. All information must be disclosed to the Inquiry in an unredacted form. A provisionally redacted copy will also be required either at this stage or as soon as reasonably practicable thereafter.

10.

It should be noted by all of those to whom a request for documents has been made, or those who are aware that “relevant documents” are in their possession, that section 35 of the Act makes it an offence to, amongst other things, distort, destroy, intentionally suppress, conceal or alter a „relevant document‟ during the course of an Inquiry. A document is a “relevant document” if it is possible that the Inquiry would, if aware of its existence, wish to be provided with it.

Redaction of documents and use of the Inquiry Document Management System

11.

There is a presumption in the Act that all relevant documents received by the Inquiry will be made public. This will occur at the appropriate time, having regard to the Inquiry timetable and ongoing criminal investigations. This approach is also in line with the Chairman‟s stated intention that transparency will be a principal objective of the Inquiry‟s work.

12.

Paragraphs 13 to 27 should be read with particular reference, and subject, to sections 18(1), 19, 20 and 22 of the Act and Rule 12(1) of the Rules. A POI should send the Inquiry Solicitor all documents in unredacted and provisionally redacted form, except that it may make redactions where it intends to claim legal professional privilege.

13.

All information received by the Inquiry will be treated as confidential. Prior to any information being disclosed to any third party (including those from whom the Inquiry requires a witness statement, and CPs) or being published, the Inquiry will inform POIs and discuss any amendments, redactions or summaries of any information

which is necessary prior to publication. The procedure to be followed is set out in paragraphs 15 to 27 of this protocol.

14.

In due course documents received by the Inquiry will be uploaded onto the Inquiry‟s Document Management System (“DMS”) and each page shall be given a unique reference number (“URN”). The URNs will be provided to those, who are subject to the terms of suitable confidentiality undertakings, with authorised access to the DMS. The URN must be used in correspondence with the Inquiry to identify the relevant pages of the document. The Inquiry will provide POIs, as appropriate, a username and password so that documents they have provided can be accessed via the DMS

.

15.

Within time limits to be specified by the Inquiry each POI must either:-

- provide a numbered schedule of the broad categories of the reasons why certain documents (or parts of them) may not be capable of being put into the public domain. The schedule should be in a form that can be made public. From time to time, the schedule may need to be expanded or updated.

or

- provide a copy of the document(s) with provisional redactions highlighted in yellow (if the provisional redactions are accepted by the Inquiry Solicitor, the text will appear [blank / black] on the DMS.

- confirm in writing to the Solicitor to the Inquiry that no redactions in respect of the documents or information provided are sought.

16.

In the event that a POI considers that a part or all of a document or information should be kept confidential or otherwise not made public, they should notify the Inquiry Solicitor of the reasons in writing. Reasons may include legal professional privilege, public interest immunity and the matters referred to in section 19(3) (Restrictions on public access etc) of the Act. The Chairman will consider each notification on its merits and with regard to the Act, the Rules and any other relevant factors.

17.

If, and to the extent that, a POI wishes to rely on legal professional privilege as a reason for not producing a document (or part of document) the Inquiry Solicitor must be notified in writing of the nature of the material which it seeks to withhold. The POI

must summarise why it believes that the document attracts legal professional privilege. POIs are reminded that they may waive legal professional privilege and should therefore consider carefully whether the public interest in an effective inquiry justifies such a waiver.

18.

The Inquiry expects POIs to adopt a measured approach to the provisional redaction of documents. Documents must be provisionally redacted only where the POI considers that the redaction can properly be justified under sections 19(3) or 22 of the Act or relate to personal details as set out above. In addition, the POI should have regard to the need for CPs and the Inquiry itself to understand the context of relevant passages within documents. Where a POI has sought provisional redactions to a document, the Inquiry will treat the document as being “potentially restricted evidence” and evidence “which is the subject of a relevant application which has not been determined” under rule 12 of the Rules.

Redaction of Personal Information

19.

The Inquiry Solicitor will generally not object to provisional redactions (provisional redactions should be highlighted in yellow) made by a POI that relate to personal information in documents such as telephone numbers, dates of birth and home addresses unless there are particular circumstances that make such personal information relevant to the Inquiry‟s Terms of Reference.

20.

The Inquiry Solicitor will, in any event, redact such information from documents before any documents are disclosed to CPs and/or published. Such redactions will not require a restriction order to be made.

Redactions which, at first sight, appear to be justified

21.

Some provisional redactions may appear to be justified. For example, the provisionally redacted document may be:

- Irrelevant to the Inquiry‟s terms of reference; or

- Relevant, but where there is a readily apparent clear and strong public interest in ensuring should not be made available to CPs via the DMS.

22.

In such cases, the Chairman will usually make a restriction order under section 19(2) (b) of the Act without requiring any further written application from the POI. Unless there is a particular reason not to do so, such a restriction order will refer to the document and indicate the reasons why the provisional redactions have been permitted.

23.

Where a restriction order has been made by the Chairman under section 19(2) (b) without a written application having been made by the POI, a CP who is dissatisfied with the extent of the redaction specified in the restriction order may apply to the Chairman to exercise his power under section 20(4) of the Act to vary the restriction order. In such a case, the Chairman may require the POI to respond in writing to the CP‟s application, setting out its reasons for seeking the continuance of the restriction order.

Where the Inquiry Solicitor disagrees with the extent of the POI’s provisional redactions – applications for Restriction Orders

24.

Having considered the provisional redactions, the Inquiry Solicitor may (i) ask the POI to provide written reasons for the redactions and/or (ii) seek from the POI less extensive redactions than those proposed.

25.

If the Inquiry Solicitor is still not satisfied with the extent of the amended provisional redactions, she will require the POI to make a written application to the Chairman for a restriction order. Such an application should be in two parts: an „open part‟ and a „closed part‟: The closed part must set out in full the reasons why the POI believes that the restriction is necessary, having regard to section 19(3) of the Act. The closed part will be considered only by the Inquiry Team. The open part must be drafted in such a way that it can be provided to the CPs and published on the Inquiry‟s website. It must contain as many of the reasons from the closed part as possible without defeating the purpose of the application.

26.

On receipt of such an application, the open part will be provided to the CPs so that they may make written POI representations. The Chairman may determine the application on the basis of the written representations alone or may hear further argument as he sees appropriate.

27.

If the Chairman declines to make a restriction order or declines to make a restriction order as extensive as that sought by the POI then, subject to any notice or application made in accordance with section 19(2) (a) or 38 of the Act, the document will be made available to the CPs via the DMS and may also be published on the website within 10 working days of the Chairman‟s Ruling or such time as in the circumstances the Chairman considers reasonable.