Some you win - Some you lose……

An aviation mishap?

The Information Commissioner appears to be getting a hurry on in his bid to clear the backlog of outstanding appeals – and two of my cases have recently come through the system.

The first which was lodged against the Foreign Office was ruled on in my favour and the documents were disclosed, the second in relation to the Civil Aviation Authority (CAA) ended up with a Decision Notice in favour of the public authority.

In the CAA case I had asked for details of Mandatory Occurrence Report forms, which are basically accident or potential accident reports, submitted by XL airlines in the 12 months before they went out of business.

I knew the CAA would claim a S.44 (legal prohibition on disclosure) because the documents are covered by S.23 of the Civil Aviation Act. However, I thought I had found a chink in this legislation as it states it does NOT apply if “…the body corporate has ceased to exist or, whether an individual or a body corporate, cannot be found after all reasonable enquiries have been made…”

The ruling was on a relatively simple point I claimed that as XL was defunct it no longer counted as a “body corporate” and the information should be released. The CAA on the other hand said XL was still in existence in that it was in administration and the administrators had been contacted and did not want the information released.

I still feel a little cheated at this decision and cannot believe that the people who drafted the Civil Aviation Act did so with the intention of protecting companies that have in all meaningful laws ceased to exist. If you want to have a look at the ruling you can see it here. [link]

In the other case I had asked for any Foreign Office briefing notes prepared by British embassy staff that offered any insight on who they thought might win the US elections. I wanted to see the documents as I thought that it would be an interesting story if our highly-paid diplomats had called the election incorrectly.

My journalistic juices started to run when the Foreign Office refused to let me see the document claiming it was covered by a S.27 (international relations) exemption. I took the case to the Commissioner who settled the case without the need for a decision notice and I received an e-mail with the briefing notes, which I post up here.

What makes this interesting in a perverse way is that if you read the document the embassy officials can’t really be criticised. They give an intelligent, insightful and fair appraisal of the state of the election at the time and the candidates’ relative chances of success.

Because of this it makes me wonder why the Foreign Office were so reluctant to release the document as it actually paints a rather good light on the work of its embassy staff.

However, what remains unanswered is the “what if” question. What if the assessment document had been completely wrong, and painted the Foreign Office as a bunch of gin-swilling incompetents? What then? Would that strengthen the power of S.27 to save the Government’s embarrassment, or would the public interest also have been strengthened to allow disclosure.

This case has parallels with the Madeleine McCann investigation e-mails request in which S.27 was deemed to have been engaged for comments made by the UK ambassador in Portugal on the competence of the local police force investigating the child’s disappearance. There was something in those e-mails which were so damning that the exemption was allowed to stay in place. See [Maddy search e-mails to remain secret].

Those of us on the outside of the decision-making process will, I am afraid to say, not be any the wiser as to what engages S.27 and what doesn’t until one day perhaps we might catch sight of what lies inside one of those secret documents so that we can compare and contrast.