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Protecting information
Some of the complaints the Tribunal considers inevitably involve sensitive information. One of the advantages of the way the Tribunal works is that it can review highly sensitive material which is not in the public domain. This does however mean that in some cases, the Tribunal is unable to disclose some of this information.
Section 69(6)(b) of RIPA sets out stringent restrictions preventing disclosure of sensitive information. Tribunal Rule 7(1) provides that the Tribunal must ensure that information is not disclosed if it is contrary to the public interest, prejudicial to national security, or the prevention or detection of serious crime, or the economic well-being of the United Kingdom, or the continued discharge of the functions of the intelligence services. You can find information about its main provisions here.
Protecting complainant’s information during our inquiries
The Tribunal Rules prevent the Tribunal from disclosing the details of any complaint made to it or any information or document provided by the complainant to anyone else, without the complainant’s consent. All that may be provided to a respondent is the name, address and date of birth of a complainant.
However, where the Tribunal is going to investigate the complaint it will usually need to disclose information about the complaint to the respondent to allow them to investigate. The Tribunal can only disclose such information if the complainant consents. That is why the complaint forms provide for the complainant to tick a box giving the Tribunal permission to disclose details of the complaint to enable investigation to be made by the relevant body.
Protecting the respondent’s information
The Tribunal may not disclose to the complainant or any other person, other than counsel to the Tribunal, any information or documents provided to the Tribunal in the course of the investigation or any hearing without the consent of the person who disclosed the information, usually the respondent. Where the respondent refuses to consent to the disclosure of a document, or a gist of it, the Tribunal, may after considering representations, direct the respondent to disclose the document, or provide a gist or summary of it.
The respondent is not obliged to comply with the direction. Where however the respondent does not comply the Tribunal has a number of powers to ensure that the complainant’s case is not adversely affected. These include directing that the respondent may not rely on such points in the respondent’s case or that the respondent must make appropriate concessions.
Protecting sensitive information once our inquiries are concluded
If the Tribunal makes a determination in a complainant’s favour it must, subject to the general duty imposed by Rule 7(1), provide a determination to both the complainant and the respondent, including any findings of fact.
If the Tribunal makes a determination, which is not a determination in favour of the complainant it must, if it considers it necessary to do so, provide the complainant and the respondent with a summary of the determination. In any case where the Tribunal determines that the complaint is frivolous or vexatious, or brought out of time or that the complainant does not have the right to bring a complaint or proceedings under section 7 HRA, it must notify the complainant of that fact and any reasoning it considers appropriate.
Rule 7–(1) The Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services.
(2) Without prejudice to this general duty, but subject to paragraphs (3) to (6), the Tribunal may not disclose to the complainant or to any other person other than Counsel to the Tribunal:
(a) any information or document disclosed or provided to the Tribunal in the course of a hearing under rule 10(1)(c);
(b) any information or document otherwise disclosed or provided to the Tribunal by any person pursuant to Section 68(6) of the Act or provided voluntarily by a person specified in Section 68(7)(a);
(c) any information, document or opinion provided to the Tribunal by a Commissioner pursuant to Section 68(2) of the Act;
(d) the fact that any information, document or opinion has been disclosed or provided in the circumstances mentioned in sub-paragraphs (a) to (c);
(e) the identity of any witness at a hearing under rule 10(1)(c) or the fact that any witness was called.
(3) The Tribunal may disclose anything described in paragraph (2) with the consent of:
(a) in the case of sub-paragraphs (a) and (b), the person who disclosed or provided the information or document;
(b) in the case of sub-paragraph (c), a relevant Commissioner and, to the extent that the information, document or opinion includes information provided to a relevant Commissioner by another person, that other person;
(c) in the case of sub-paragraph (d), the person whose consent is required under this rule for disclosure of the information, document or opinion in question;
(d) in the case of sub-paragraph (e), the witness.
(4) Paragraphs (5) and (6) apply where:
(a) the Tribunal is prohibited by paragraph (2) from disclosing to the complainant something falling within sub-paragraph (a), (b), (d) or (e) of that paragraph, and
(b) the respondent refuses to consent to such disclosure, or a gist or summary thereof.
(5) The Tribunal may direct the respondent to make representations to the Tribunal which provide their reasons for withholding any document or information from the complainant.
(6) The Tribunal may, after considering any such representations, direct the respondent:
(a) to disclose to the complainant documents or information supplied to the Tribunal by the respondent, or
(b) to provide the complainant a gist or summary of such documents or information.
(7) Where the Tribunal has directed the respondent under paragraph (6):
(a) the respondent is not required to disclose to the complainant documents or information or (as the case may be) provide to the complainant a gist or summary, but
(b) if the respondent does not do so the Tribunal may
(i) if they consider that anything required to be disclosed or provided might adversely affect the respondent’s case, direct that the respondent is not to rely on such points in the respondent’s case, or that the respondent must make such concessions or take such other steps, as the Tribunal may specify, and
(ii) in any other case, direct that the respondent must not rely in the proceedings on anything required to be disclosed or provided. ]
