Public inquiries operate in the open. Under the Inquiries Act 2005 section 18 the chair must take such steps as considered reasonable to enable the public (and reporters) to access inquiry proceedings and information. That obligation applies subject to any lawful restrictions imposed under section 19 of the Act and applies to obtaining or viewing a record of evidence and documents given, produced or provided to the inquiry, as well as observing inquiry proceedings.

At the same time, inquiries handle very large volumes of sensitive material. Personal data, special category data, confidential internal documents, legally privileged material, and records are all commonly requested and reviewed by inquiries. They may also attract media attention or be sought through freedom of information requests.

For organisations engaging with an inquiry, that creates a familiar tension: how do you comply with obligations of openness without over-disclosing personal data, prejudicing legal rights, or losing control of sensitive information? The answer is that data protection, freedom of information and inquiry procedure need to be considered together, respecting the overriding obligation to be candid and transparent with the inquiry at all times.

Begin with the inquiry’s framework, not your usual disclosure instincts

Inquiry disclosure often works differently from disclosure in litigation or a freedom of information response. Inquiry redaction protocols often state that documents should be provided to the inquiry in their original and unredacted form, with any proposed redactions or applications for restriction orders being dealt with later, through the inquiry’s own processes.

Many organisations instinctively want to try to “clean” documents before providing them to the inquiry. That can run contrary to the inquiry’s redaction protocols (as well as trigger an offence under the Inquiries Act). In most cases it will be the inquiry legal team, not the material provider, that review relevance and decide what should be disclosed or published, while taking account of the inquiry’s obligations under the Inquiries Act, as well as under the UK GDPR and the Data Protection Act 2018.

Before responding to a live inquiry, always check the protocol before doing anything else. The legal basis, redaction threshold, confidentiality arrangements and route for seeking protection are all likely to be set out in this document. Our public inquiry lawyers will be happy to support you with interpretation and application of those procedures.

  • Inquiry protocols

    Inquiry protocols generally describe redaction as the removal of information from a document to protect sensitive and personal data. They also recognise that redaction may be used to remove material that is not relevant to the inquiry’s terms of reference.

    However, redaction is usually only one part of a wider decision-making framework in the inquiry landscape. The starting point is openness, with restrictions permitted only when justified. Generally, the information an inquiry might request can be broken down into three categories:

    1. information that is genuinely necessary for the inquiry’s work and likely publication;
    2. information that may be relevant to the inquiry but should be protected from wider disclosure; and
    3. information that is irrelevant and does not need to enter the public domain at all.

    We can support your organisation with identifying which category your documentation falls into, together with making representations to the inquiry accordingly.

    Where necessary, we can also assist with applications for protection from wider disclosure or publication. Inquiry protocols commonly allow affected persons or organisations to request redaction or a restriction order where there is a sufficiently strong justification for protection against broad disclosure or publication. Inquiries should also contact providers before proceeding to disclose or publish material. In practical terms, that means participants should be able to make representations about disclosure/publication concerns and document the reason for any proposed redaction, identify whether a restriction order may be required, and be able to explain why the information should not be disclosed more widely.

  • Redaction

    For redaction, once an inquiry has decided which documents it intends to disclose to core participants, it will inform the providers of documents, so that disclosure concerns can be raised or redactions can be requested if required. Reasons must be given for each proposed redaction. An inquiry will consider all requests for redaction, and the providers will be notified before the document in question is disclosed to the core participants. Inquiries expect a measured approach when seeking redactions and will redact documents only where there is a good reason to do so.

  • Restriction orders

    Restriction orders are made by the chair and can be used to prevent disclosure or publication of evidence or documents given, produced or provided to the inquiry. They can be made when required by law or when the chair considers it to be conducive to an inquiry fulfilling its Terms of Reference or in the public interest. Failure to comply with a restriction order can be enforced by the High Court or Court of Session.

Personal data

By its nature, many of the most complex judgment calls in inquiry work will involve personal data. Inquiry protocols usually expressly recognise that inquiry material may contain significant volumes of personal information requiring careful handling. Disclosure and, if required, redaction and restriction orders should be informed by the relevance of that data and the necessity of its disclosure.

The inquiry process can require disclosure of some personal data. Your organisation should be alert to the potential need to make redaction or restriction requests early in the process, as well as how to manage potential implications for data subject rights.

Freedom of information

While an inquiry is ongoing, the inquiry itself is not a "public authority" for the purposes of freedom of information, so requests cannot be made directly to the inquiry under that regime. However, there is the general obligation on the chair to ensure public access to the inquiry discussed above, which includes obtaining or viewing a record of evidence and documents given, produced or provided to the inquiry. So, there is usually a clear route to transparency of information for those who are interested in the inquiry’s work.

Where requests are made to public authorities subject to freedom of information, section 32(2) of the Freedom of Information Act 2000 (and section 37(1)(b) Freedom of Information (Scotland) Act 2002) provide an exemption from disclosure for documents created by, or placed in the custody of, a person conducting an inquiry for the purposes of the inquiry. As a result, while an inquiry is ongoing, information in such documents is not subject to disclosure under the FOIA, until the records become "historical records”. Other exemptions from disclosure under the freedom of information regimes may also still apply to exempt information from disclosure, such as personal data, legal professional privilege or on health and safety grounds amongst others. These exemptions should be considered and justified on a case-by-case basis.

Conclusion: the key to effective information governance

Inquiries operate in a landscape where openness is expected. In such an environment there is a high risk of unstructured and disorganised disclosure unless controls are in place. The most effective organisational response is to build a disciplined process which recognises the inquiry’s statutory framework and the importance of candour, understands well the information held, anticipates issues early, and manages disclosure and publication risks.

Brodies can provide end to end support through all phases of an inquiry, including disclosure and document review, together with the interplay with data protection and freedom of information issues.

If you would like to discuss potential support, please get in touch with one of our key contacts Paul Marshall or Jenna Wong.

Contributors

Paul Marshall

Partner

Jenna Wong

Senior Associate