Madeleine McCann case and the 'Mad Cow' Legislation

EXCLUSIVE to mccannfiles.com

By Dr Martin Roberts
02 November 2009


The Freedom of Information Act has revealed itself of late to be an indisputable contradiction in terms. Yes, members of the British public are completely at liberty to provide all the information required of them when submitting a Tax return, or seeking state aid of any kind. (Quite ridiculously different government departments each have their own form of what is, in effect, the same questionnaire, given they solicit the same information and ultimately share it among themselves anyway). How many of us have been greeted by an automated telephone exchange announcing that 'this conversation may be recorded for training or security purposes?' But put the boot on the other foot and what happens? The phrase 'We cannot confirm or deny' is already to 'officialese' what 'tailored to your requirements' is to 'ad-speak' - an overworked cliché. The fact is that information flow between the UK public and official bodies created to serve it is as uni-directional as a lemming's last leap.

The law of unintended consequences has beset, in every case, the imposition of performance targets, whether by Ofsted, the Home Office or the NHS. Almost inevitably, the 'duty of care' becomes subordinated by employees, whose own survival instinct necessarily obliges them to give primacy to the attainment of targets. In like fashion, aspects of the Freedom of Information Act, designed to enable access whilst at the same time protecting the individual from data snoopers with ulterior motives, have, albeit unintentionally, provided the government and its various agencies alike with a hatful of 'get out clauses'. In terms of successful acquisition of information held by official bodies, the exception proves the rule, because the exemption has been proven to rule. Never mind the question, if the organisation concerned can find an exemption to fit the genuine answer then the only one likely to be forthcoming is that of the Foxtrot Oscar variety.

There can be no more blatant an example of this tactic in action than the FCO response to a request, lodged on 9 October, 2007, for the content of e-mails, on the subject of Madeleine McCann's disappearance, exchanged between John Buck (former UK Ambassador to Portugal), the Portuguese authorities, and the FCO itself. Consider the following sequence of events, distilled, for the sake of brevity, from the final decision (and explanation thereof) delivered by the office of the Commissioner for Information:

• 6 November, 2007: FCO indicated that exemptions from the act applied under sections 27 and 31

• 3 December, 2007: Some information released but other information withheld under exemptions contained in section 27 (1)(a), section 31(1) (c and section 40 (2) and (3).

It is worth noting, even at this early stage, that Section 27 of the FOIA covers International Relations, Section 31 situations where disclosure would be prejudicial to Law Enforcement, and Sections 40 (2) and (3) Personal Data. Information provided in confidence is covered under section 41.

Unsurprisingly the enquirer appealed the original decision of the FCO, his request subsequently receiving the scrutiny of the Commissioner of Information (or his staff at least) who considered application of section 27 and the public interest as well as application of section 40 to some relevant personal information being held by FCO.

• 12 November 2008: FCO maintained section 27, 31 and 40 exemptions for some information held.

• FCO continued to withhold some relevant communications along with a small amount of personal information.

• 13 November 2008: The Commissioner's staff examined the information being withheld.

• 24 November: FCO release some information but continue to withhold other information, relying on 27(1)(a) exemption

So, in respect of the original request, all information being withheld at this time is now bracketed under this same exemption, applicable under section 27.

Next from within the Commissioner's response comes a highly significant 'finding of fact', one of two such recorded; a point-by-point analysis in respect of the various decisions as announced is offered thereafter. Salient points of particular significance are brought forth here, edited and underlined for the sake of clarity.

Finding of Fact

• 14. FCO told the Commissioner that a family member had made clear to FCO staff that all comments made by that individual to FCO had been made in strict confidence and were not intended for disclosure to third parties. FCO did not approach the family member again during the Commissioner's investigation but told the Commissioner that they were confident the individual would not appreciate being contacted regarding disclosure of the relevant personal information, a position the Commissioner accepted.


• 19. Inappropriate disclosure (of information still being withheld) would cause overseas governments and public authorities in Portugal and elsewhere to lose trust in the reliability and discretion of UK government and UK public authorities.

Section 27 exemption is therefore engaged. The argument is that disclosure of Ambassador Buck's communications with Portuguese authorities could cause substantial damage to international relations.

• 26. Concern that 'disclosure of confidences or of other sensitive material would have damaging implications for any possible further developments on this matter and relevant future investigations in Portugal or elsewhere. This would not be in the best interests of the McCann family, including Madeleine.'

• 27. Section 27(1)(a) exemption therefore maintained.

But confidences are covered under section 41 of the FOIA, not section 27.

• 28. Since the decision is that information was correctly withheld under section 27, the Commissioner did not go on to consider Section 31 exemption, also relied upon by FCO in refusing to disclose the information to the complainant.

• 29. FCO had a small amount of personal information which had been provided to FCO staff in strict confidence. FCO said that the provider did not wish the information to be disclosed to third parties and that disclosure would be unfair and so would breach the second data protection principle. It would thereby be exempt under section 40 of the act.

• 31. In this case FCO stated that the requested information constituted the personal data of third parties and was therefore exempt under section 40 (2) of the Act.

• The Commissioner has had to consider whether this constitutes personal data. Section 1 of the Data Protection Act 1998 defines personal data as information which relates to a living individual who can be identified:
From that data, or

From that data and other information in the possession of the data controller
Now this all seems very contentious. What is being discussed here, having already been described as fact, is personal information, not personal data. Data can be withheld if identification of a living person can be made from it. But so too, for the same reason, can 'other information', in which case said information is classified as data for the purposes of interpretation under the act.

So, all you have to do is append your own or someone else’s name to whatever observation you might make to anyone in officialdom and it becomes immune to public scrutiny?

Nevertheless the Commissioner does not even go on to consider this information under Section 41 - confidences.

In the specific context of the McCann case, critics of this and other examples of the FOIA at work (or not, as the case may be) run the risk of being accused of paranoia over any attempt to attribute Machiavellian motives to the ultimate decision makers involved. But 'Just because you're paranoid, it doesn't mean they're not out to get you!'

With particular reference to the so-called 'personal information' involved here, refusal of this application for disclosure is suspect on a number of counts.

The application was considered by the FCO and the COI subsequently to entail personal information relayed in confidence. But the matter of confidentiality per se was never once addressed, the Commissioner being satisfied that exemption under section 40 (personal data) was sufficient. Stranger yet was the FCO's prior assumption that section 27 would prove all-embracing (point 24 above). It is difficult to avoid forming the impression that, whatever this 'sensitive material' was, the FCO and COI made it their joint concern that an exemption would be found to fit.

From point 29 previously we have learnt that the FCO had a small amount of personal information … provided to FCO staff in strict confidence, that the provider did not wish to be disclosed to third parties as that would be unfair and exempt under section 40 of the act.

If we place this statement within the overall context of an application for sight of correspondence between Ambassador John Buck, Portuguese authorities and the FCO, what does that tell us about confidentiality? If this personal information, never explicitly requested in the first instance, was entailed in the communications of others, then there are grounds for supposing that the constraint on disclosure required by the initial provider had already been overruled. If, on the other hand, we subscribe to the COI's own description of circumstances immediately post November 12, 2008, i.e. that 'FCO continued to withhold some relevant communications along with a small amount of personal information,' then why should the FCO have entered it among their list of concerns in the first instance? If your neighbour doesn’t ask to borrow your lawn mower you don’t worry about lending it to him.

Now let's consider 'unfairness' and protection under section 40, whereby personal data (or personal information) that may lead to the identification of a living person can justifiably be withheld.

The first thing to notice from the COI's own response is that said personal information is described as originating with a 'family member'. A child has gone missing. There is only one family directly involved. As a percentage of the UK population, even in its extended form, it represents hardly more than a string of noughts after the decimal place. The fact is that the FCO themselves have already narrowed down any search by the inquisitive to a very small group of people, all of whom are readily identifiable, having previously, and one might add deliberately, come forward and made themselves known to the general public. Upon which member of the clan might disclosure of the small amount of personal data have been unfair therefore, and why? Because they did not wish to be bothered afterwards by 'phone calls and further questions? This is not a reason, it is an excuse.

'Just imagine', as we are currently being exhorted to do, your child has gone missing. You sit by the 'phone waiting for news - any news, and take all calls regardless, even if they include the occasional appeal to your wallet by double-glazing salesmen operating out of Calcutta. You don’t, under any circumstances, hang a 'Do not disturb!' sign on your door.

Or perhaps the identity risk attaching to release of this 'personal information', initially subsumed under the 'jeopardy to international relations' argument, was that of Madeleine McCann herself. Again, we have been (and continue to be) encouraged to speak out, to come forward with that 'key bit of information.' After two years, indeed after two hours, the more precisely a missing person can be specified to the general public the better. He or she may have some behavioural idiosyncrasy, as opposed to any unique physical trait, which, under certain circumstances, might mark him or her out from the crowd. Basically the more the searchers know about their objective the better. One could be forgiven for harbouring the thought that someone who deliberately withholds information in such a case is less than keen on seeing the person discovered.

In sum, these decisions on the part of the FCO, and latterly the COI, smack of subterfuge.

"If you know something, say something" intones the FindMadeleine website currently, because, "If you stay quiet you're as guilty as those who took her." So, in order to salve my conscience I might 'say something', but to avoid any misunderstanding, accusations of slander, or questions later, I'll put a bucket over my head. That way the listener won’t be able either to understand or to recognize me. Strictly speaking I shall have done what was requested. But will I have done the right thing by Madeleine?

No, Mr Commissioner. Don't hand us tales of protecting the identity of those who have already identified themselves; or of little ones crying out to be identified. Nor claim an unwarranted respect for the convenience and confidentiality of an individual, who is disposed to sharing crucial information with the FCO, but not with anyone else; and that would include the very people in Portugal using their best endeavours to determine the fate of their young relative.

But remember, "It's never too late to do the right thing."

Written by Dr Martin Roberts for mccannfiles