No 10 has dismissed as “vexatious” a freedom of information request by the Bureau for emails between the prime minister’s office and the parliamentary committee behind the Russia report in the run up to the 2019 general election.
The Bureau sought these emails because they could have shed light on Boris Johnson’s controversial decision to delay the publication of the Intelligence and Security Committee (ISC) report into Russian influence in the UK until after the election.
Downing Street refused the FOI request by dismissing it as “vexatious”, a rarely used refusal reserved for requests which were “disproportionate or unjustified level of disruption, irritation or distress”.
The documents could have been collated by No 10 via a series of simple searches.
“Boris Johnson has been accused by his critics of a ‘cover-up’ by blocking the release of the Russia report. Blocking the publication of correspondence around that decision could look like a cover-up of the cover-up,” said Rachel Oldroyd, the Bureau’s managing editor.
“The Bureau has only ever been interested in securing the report – and scrutinising the decision to block it – in the spirit of informing the public and keeping government transparent. This decision threatens those goals.”
The rules on reports from the ISC allow the prime minister time to suggest additional redactions beyond those requested by the security services. The convention is that this is ten days.
In the run up to the 2019 general election, the ISC’s staff made arrangements to ensure the report could be published in as little as an hour if No 10 gave permission to do so. However, shortly before the election Johnson claimed the government needed more time to scrutinise it. At the time Dominic Grieve, then the ISC chairman, said the decision to delay its publication was “jaw-dropping”.
Johnson came under fire during the campaign for refusing to green light the publication of the report. According to press reports, the ISC report could contain information that is potentially embarrassing for the Conservative party.
The Bureau tried to pursue legal action to force the release of the report before the election, but could not proceed after failing to secure a vital witness statement.
The report has not yet been published because the ISC must first re-form in the wake of the election, a process that can take several months.
Helen Darbishire, executive director of Access Info Europe, said it is “highly inappropriate and very worrying” to see requests submitted by journalists being branded as vexatious, particularly “in the context of a week in which journalists were excluded from a Cabinet Office press briefing”. Earlier this month officials attempted to exclude certain political journalists from a No 10 briefing. In protest all journalists working in the lobby, including Laura Kuenssberg from the BBC and Robert Peston from ITV, boycotted the briefing.
Heather Brooke, a journalist and transparency campaigner, said: “It seems to be part of a worrying pattern … I think there’s a set of politicians who feel like this is a time when they can just dismiss challenging questions.”
Responding to the Bureau’s request, a Cabinet Office official said: “The amount of information that is likely to be in the scope, and the degree of sensitivity of a significant proportion of that information is likely to be very high ... It is my view that to comply with this proposal would place a disproportionate burden on the Department’s resources.”
Darbishire said she was “concerned about the potential chilling effect of such a cavalier use of ‘vexatious’ ”.
Typically, “vexatious requesters” are those who have submitted a number of FOI requests in a short period of time. But the Information Commissioner’s Office, which provides guidance on handling FOI requests to public bodies, says a request can also be judged to be vexatious if it “will be so grossly oppressive in terms of the strain on time and resources, that the authority cannot reasonably be expected to comply, no matter how legitimate the subject matter or valid the intentions of the requester.”
The Cabinet Office did not provide the Bureau with any estimate of how much time it would take to gather and prepare the information or any indication of whether a request with a shorter timeframe would be successful. A public body has a duty to provide advice or assistance – except in cases where a request is deemed to be vexatious.
“The fact they’ve used that the vexatious exemption seems on its face nonsensical. I can only imagine that the reasoning behind it was that they didn’t have another good exemption to call on,” said Brooke.
“There isn’t an exemption for embarrassment in the Freedom of Information Act, however much you wish as a politician that that was a category … so if that’s their only reason for trying to keep it secret, it doesn’t stand up against the law.”
The Bureau is appealing the refusal, and is prepared to present its case to the Information Commissioner’s Office if necessary.
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