Appendix 5: Freedom of information and Parliamentary debate

Freedom of information request

Prior to the appointment of the Hillsborough Independent Panel, the BBC had made a freedom of information (FOI) request to access Cabinet papers covering the days following the Hillsborough disaster. This had been refused and the BBC appealed to the Information Commissioner.

In July 2011 the Commissioner, Christopher Graham, ruled that 'the specific content of the information in question would add to public knowledge and understanding about the reaction of various parties to that event, including the government of the day, in the early aftermath'. His ruling provoked concern that information had been purposefully withheld from public scrutiny.

He considered it irrelevant that the Panel was engaged in negotiating disclosure of documents, noting that the initial request had been made before the Panel's appointment. The Cabinet Office appealed the Commissioner's ruling, stating 'the government's view is that it is in the public interest for the process that is under way through the Hillsborough Independent Panel be allowed to take its course', including the established principle 'to disclose information to the Hillsborough families first'.

Given that it was negotiating the disclosure of all Cabinet and government documents relating to Hillsborough, the Panel was concerned to safeguard the principle of researching all disclosed documents in context. Whereas the BBC's application covered a period of less than a month, the Panel's commitment to disclosure extended over two decades.

The Panel issued the following statement on 21 August 2011:

Following recent media coverage of the Cabinet Office's decision to appeal the release of Cabinet Office papers concerning the Hillsborough disaster, the Hillsborough Independent Panel affirms its independence of government in carrying out its research, publishing an analytical report and establishing a comprehensive public archive of documents and other materials. The Panel is grateful for the continuing support of the Hillsborough families in taking forward its unique and important work. 

The statement also included the following explanatory note:

The Panel's terms of reference commit to maximum public disclosure of all documents and materials relating to the context, circumstances and aftermath of the disaster and to providing direction on the establishment of a public archive of those documents and materials. A guiding principle within the Panel's Terms of Reference is that full disclosure will be made first to the Hillsborough families followed by release to the wider public. This principle has been applied to all documents received by the Panel from organisations.

The Panel is responsible for publishing a Report that will 'illustrate how the information disclosed adds to public understanding of the tragedy and its aftermath'. At present the Panel has received the cooperation of all organisations believed to hold relevant material, including the Cabinet Office, in securing access to documents and materials. The documents are undergoing detailed analysis by the Panel's researchers under the direction of a Panel sub-group and led by Professor Phil Scraton, a member of the Panel.
 
The Cabinet Office documents are one element of a highly complex range of material accessed from organisations and digitised for eventual release into the public domain as part of the comprehensive archive. They will be analysed in that context and will form an essential foundation to the Panel's Report scheduled for Spring 2012.

On 24 August Professor Phil Scraton commented on the Panel's collective position:

The Panel is not a gatekeeper. Our role is not to determine what is or is not published, our responsibility is full public disclosure. Our role is not to filter information but to secure access to documents that otherwise would have been restricted for years to come. We are engaged in an unprecedented process and our priorities are the families, the survivors and the broader public interest.

In response to a letter from Andy Burnham MP, the Prime Minister affirmed the Coalition Government's support for the work of the Hillsborough Independent Panel. He stated that 'the Government is wholly committed to full disclosure of the Hillsborough information that it holds', and further that 'Cabinet papers, along with other relevant government papers, have been released to the Hillsborough independent panel'.

He continued:

I am keen to ensure that the panel and indeed the families were treated with the upmost respect in this process. We have therefore proposed that the panel will ensure that disclosure takes place initially to the Hillsborough families, prior to wider publication. There seems to me to be complete agreement on the need for full and public disclosure, initially to the families. I hope we can all now agree that we should be joining forces in helping the Panel complete its important work.

E-petition and parliamentary debate

Meanwhile, an e-petition was launched requesting 'Full government disclosure and publication of all documents, discussions and reports relating to the 1989 Hillsborough disaster'. It received well over 100,000 signatures and Steve Rotheram, MP for Liverpool Walton, introduced a Backbench Business debate in the House of Commons on 17 October 2011.[1]

In her reply the Home Secretary, Theresa May, stated that the Government 'firmly believe that the right way to release the papers is through the Hillsborough independent panel - to the families first and then to the public'. She stated:

The families should have the papers, and they should not have them filtered through politicians or the media. We therefore support the Hillsborough independent panel and today's motion. We want full disclosure to the panel of all documents relating to Hillsborough, including Cabinet minutes. Those documents should be uncensored and unredacted. Indeed, the full unredacted Cabinet Office papers on Hillsborough have already been made available to the panel. That includes minutes of the meetings of the Cabinet immediately following the disaster.

She stated further that the 'principle is clear: full publication and minimal redaction, and the panel seeing all of the papers, uncensored and unredacted - as the families have rightly demanded: the whole loaf, not snippets. I stand ready to do anything I can to aid the independent panel in completing its task'.

Following an extensive and moving debate the motion was carried without opposition:

That this House calls for the full disclosure of all Government-related documents, including Cabinet minutes, relating to the 1989 Hillsborough disaster; requires that such documentation be uncensored and without redaction; and further calls for the families of the 96 and the Hillsborough Independent Panel to have unrestricted access to that information.

BBC disclosure of Cabinet papers

On 15 March 2012, soon after the Panel announced that it would be presenting its Report in the Autumn of 2012, the BBC disclosed documents it had initially sought. It appears that the documents were leaked and their contents limited to the immediate aftermath, the period covered by the BBC's initial FOI request.

[1] Hansard, 17 October 2011, Col 662-724.