Protocol on Disclosure of Information
This protocol sets out the arrangements for disclosure to the Daniel Morgan Independent Panel (‘the Independent Panel’).
This protocol applies to provision of documents by all organisations from whom the Independent Panel requests disclosure. This includes, but is not limited to, the Metropolitan Police Service, Hampshire Constabulary, the Crown Prosecution Service, the Independent Police Complaints Commission, Southwark Coroner’s Court, and the Home Office (‘the providing organisations’).
Background and aims
1. This protocol is designed to ensure that:
(a) the providing organisations, the Morgan family and the public know how the Independent Panel approaches provision of documents to the Review by the police and other organisations;
(b) the Independent Panel receives documents to deadlines that it sets;
(c) provision is made for the Independent Panel to receive exceptional and full disclosure as required by its terms of reference; and
(d) appropriate provision is made for information relevant to the Independent Panel’s work to be published with its Report.
2. The Independent Panel has been appointed by the Home Secretary to shine a light on Daniel Morgan’s murder, its background and the handling of the case since March 1987. Its terms of reference are set out in Schedule 1. It is tasked with obtaining exceptional and full disclosure of all relevant documentation and presenting a final report to the Home Secretary for publication in Parliament. The Panel’s Principles include ‘the family first’ in terms of release of the Panel’s findings and Report and maximum possible disclosure of documents and information by the Panel to the family.
3. The Independent Panel has procured an electronic document management system called Lextranet from Merrill Legal Solutions. It will use this system to hold, collate, organise and research all but the most sensitive material it receives from the providing organisations.
Provision of documents
4. In this Protocol, ‘document’ means anything in which information of any description is recorded. The Independent Panel’s request for documents is broad-ranging. It may (depending on context) include copies of statements, pocket notebooks, policy statements, audio recordings, video footage, information stored electronically on computer systems, meeting notes and minutes, manuscript notes, memoranda, correspondence (post and/or fax) and internal and external email communications. The Independent Panel may also request physical evidence and where it does, references in this Protocol to ‘documents’ should be taken to include physical evidence.
5. The providing organisations will provide the Independent Panel with access to all documents requested (as envisaged within this protocol) within the timeframe contained within its request.
6. Providing organisations must provide the Independent Panel with access to documents in unredacted form. To facilitate this:
(a) the members of the Independent Panel (and/or, where the Panel considers it necessary, its solicitor and/or counsel) may (subject to paragraph (b) below) inspect unredacted documents at the providing organisation’s own premises, where this is a security requirement; in such cases the unredacted document will not be held by the Independent Panel or viewed by the secretariat and the redacted information will be kept confidential by the Panel and its solicitor and counsel;
(b) where a document (or part of a document) is subject to a privilege against disclosure or a legal rule which would prevent disclosure to the Independent Panel, the providing organisation will bring this to the attention of the solicitor to the Independent Panel for the purpose of identifying a mechanism by which unredacted disclosure of the material in question may be made to the members of the Independent Panel, its solicitor and counsel. This will include waiver of legal privilege, securing any necessary consents which will enable the disclosure of material which would otherwise be prohibited from disclosure by statute, and agreeing steps with the Panel which will minimise the risk of prejudice to ongoing criminal and/or disciplinary investigations.
7. The Independent Panel has recruited researchers comprising junior research fellows and paralegals to assist it in its work. These staff form part of the Independent Panel’s Secretariat and will have access to documents in electronic form via the Lextranet system only.
8. Lextranet is accredited to hold documents with a protective marking up to and including RESTRICTED / OFFICIAL-SENSITIVE as applicable. Accordingly, providing organisations are requested in the first instance to review the documents requested and redact them where necessary so that their protective marking is downgraded to RESTRICTED / OFFICIAL – SENSITIVE as applicable or below so that they may be digitised and added to Lextranet. In doing so, they will:
(a) redact the bare minimum necessary to achieve the protective marking downgrade, so the document can be uploaded on to Lextranet; and
(b) where it is necessary to make a redaction to achieve the protective marking downgrade, provide the reason for the redaction and separately make the unredacted version available to the Independent Panel in hard copy.
9. It is for the members of the Independent Panel to keep themselves appraised of the researchers’ work and on a confidential basis to identify and address any gaps in knowledge that arise between redacted and unredacted documents.
10. The Independent Panel will provide staff at the providing organisation’s own premises to index and otherwise prepare disclosure documents for digitisation.
11. Providing organisations will ensure that they retain original versions of all documents relevant to the Independent Panel’s work and that relevant evidence is not destroyed. They will also maintain accurate logs of searches completed to produce documents supplied to the Independent Panel, together with a comprehensive list of documents provided.
12. (a) Requests for disclosure of material falling within the Terms of Reference by the Independent Panel create a continuing obligation.
(b) The providing organisations will need to establish procedures to ensure that the existence of any new documents (i.e. those documents newly created and/or newly discovered and those newly acquired) which might fall within the Terms of Reference is identified and drawn to the attention of the Independent Panel so it may decide whether to request these. The disclosure obligation ceases once the Independent Panel has produced its Report and satisfied its terms of reference.
13. Because of the nature of the subject matter of its work, the Independent Panel acknowledges that the documents provided to it must remain confidential to it and its Secretariat. Members of the Panel and the Secretariat will sign confidentiality agreements the terms of which have been agreed between the Panel and each providing organisation.
14. The Independent Panel will ensure that:
(a) it, its advisers and staff follow the relevant Government security rules and procedures for the transmission, handling, storage and removal of documents;
(b) all those who have access to disclosure documents are appropriately security cleared in line with government rules and procedures for security clearance;
(c) appropriate procedures as set out below are followed before documents are included in its Report and therefore prepared for publication; and
(d) it files, records, stores and retains documents passed to it as well as any documents it generates in a manner consistent with government standards on filing, record keeping, storage and retention of official material.
Onward disclosure of documents by the Independent Panel
15. It is expected that the Independent Panel will wish to draw on information contained in documents provided pursuant to this Protocol when producing its Final (and any provisional) Report. It may also wish to evidence that Report by referencing and publishing the source documentation on which it is based.
16. Before publishing any Report which has annexed to it any document or part of a document supplied by the providing organisations, the Independent Panel will:
(a) supply the providing organisation concerned with a list of the documents or parts of documents in question;
(b) permit the providing organisation to make representations concerning any redactions which may be necessary prior to publication (for example for reasons of data protection, to protect covert policing methodology, to remove information which is sensitive but irrelevant etc);
(c) give careful consideration to any such representations;
(d) seek to agree all redactions by consent; and
(e) only publish documents and/or parts of documents disclosed to it with the express written consent of the providing organisation which supplied the particular document in question. The providing organisations will not unreasonably withhold consent. If the Panel considers that consent has been withheld unreasonably then it will not publish the material in issue, but it may publish the fact that it considers that consent has been withheld unreasonably.
Public disclosure process
17. The Independent Panel’s Terms of Reference include the ‘family first’ principle in terms of release of its findings and Report. Accordingly, the Independent Panel will ensure that the Morgan family are provided with access on a confidential basis to its completed Report and any associated documentation prior to its publication in accordance with arrangements made by the Home Secretary in Parliament.
18. The Independent Panel will ensure that its final report is in compliance with all its legal obligations and does not breach any security requirements including, in particular, the provision of information that might give rise to a risk to life or a risk to prejudice of future criminal proceedings. It will agree a mechanism with providing organisations for doing this which respects the ‘family first’ principle set out in the Independent Panel’s Terms of Reference.
Conclusion of the Panel’s work
19. The Panel’s Chair will write to the Home Secretary to confirm when the Panel has completed its work. At this point in time, any documentation that remains under the control of the Panel (digital or otherwise) will be returned to the relevant providing organisation. All other copies of this material (digital or otherwise) will then be destroyed.