Last week, the Information Tribunal heard an appeal brought by Chris Cole of Drone Wars UK. He had made a request to the Ministry of Defence (MoD), under the Freedom of Information Act (FoIA), for answers to two drones related questions. The first was to ask for the province and month of each weapon launched by the Reaper within Afghanistan. This was refused on the basis of the exemptions at section 26(1)(b) (concerned with defence) and section 27(1)(a) (concerned relations between the United Kingdom and any other State) of the Act. Following an MoD internal review, which upheld the initial decision, Chris Cole submitted an appeal to the Information Commissioner. This was rejected on the basis that the Commissioner was satisfied that the information requested was exempt from disclosure on the basis of section 26(1)(b). As a result of this finding, the Commissioner did not consider the Ministry of Defence’s use of section 27(1)(a). The “other State” in question is the United States.
The second question asked, by year, how many weapons were released from UK Reapers under daily tasking orders, in other words on a pre-planned basis, and how many were released under dynamic tasking procedures, i.e. while in flight. Though a breakdown, by year, of the number of Reaper weapons releases in Afghanistan to date was released following an internal review, the MoD argued that to define these weapons’ releases on the basis of their release would fall within the exemption at section 26(1)(b) of FoIA. This decision was also upheld by the Information Commissioner.
While the failure to provide full responses by the Ministry of Defences undermines the Government’s commitment to develop the debate on drones, what emerged from the hearing as to the approach taken by the MoD to engaging with the United States on the drones issue was worrying. In open session, evidence from the Squadron Leader indicated that the Ministry of Defence had written to the United States to seek their opinion as to whether to provide the information relating to the time and location of UK drone strikes to Chris Cole. The Squadron Leader, in response to a question about whether the UK included its own view within the request made to the US, replied that an open question was put to the US. He went on to comment that the UK could not afford to disclose such information and that if, in this instance, the MoD were to ignore the wishes of the United States, then this would prejudice the UK’s defence capabilities, beyond the Reaper issue. He was not aware of circumstances where the MoD would still release information in the face of a negative response from the US.
The hearing then moved into closed session and Chris Cole, his counsel, and public observers were asked to leave. It subsequently emerged during this session, that the nature of the request made was in fact far from neutral. The email sent to the United States stated
PJHQ has asked me to find a suitable American representative who would be able to give us their, the US, views about the UK releasing the information Mr Cole has requested. The UK is not looking to release the information and is trying to strengthen our arguments for non-disclosure.
In submissions on Day Two of the tribunal, Sam Jacobs, counsel for Chris Cole, highlighted how the weight that the Tribunal should attach to the response from the United States should be limited as it was shaped by a leading question from the MoD. In the MoD’s response, the relevance of s.27 was not really touched upon, with counsel arguing that if Chris Cole was successful on the grounds of s.26, then s.27 did not need to be considered. Further, the MoD were aware that the email in question would be presented to the Tribunal.
However, what this experience also points to is the asymmetric advantage provided to the Government when members of the public seek to review a decision. The exclusion of Chris Cole and his counsel from the closed session ensured that they were reliant on making their case on the basis of the information provided in open session, and arguably more importantly, on the basis that this information was accurate. While the challenges posed by closed sessions are taken into account by the Tribunal, this cannot disguise the vulnerability of applicants within the system.
The Government’s fear of prejudicing relations with another State, in the context of drones this is usually the United States, can also be seen in the withholding of full responses to Parliamentary Questions. For example, the MoD declined to tell Anas Sarwar MP the cost of the Royal Air Force Reaper conversion course, which is provided through a Foreign Military Sales Agreement with the United States Air Force and conducted at Holloman Air Force Base, USA. It also declined to fully answer Rehman Chishti MP’s question on the full cost and operating lifespan of a Reaper and the cost of a Reaper in each of the variants that have been purchased by the armed forces. An FoIA request submitted to the MoD by the APPG, based on a Parliamentary Question about a local psychological study carried out on UK drone pilots, was similarly rejected on the grounds that
While the MOD was provided copies of the report, the report which is within the scope of your request remains the copyright of that other Government. That Government has expressly not given permission for the MOD to release the report, which remains their copyright.
A subsequent appeal, focused on whether a request for disclosure by the MoD was even submitted to the other Government remains trapped in an interminable cycle of the extension of “times to respond”.
The attitude exhibited by the Ministry of Defence seems to confirm that secrecy and obfuscation is the name of the game. Assuming that the MoD were aware that the email was going to be presented to the Tribunal, it seems that this Department has an interesting interpretation of “open” when posing questions to another State. Of course incidences such as these do little for the public perception that the Government is shrouding an already shady weapon in further mystery. Contrary to the commitment set out in the Ministry of Defence’s Joint Doctrine, to facilitate a public debate on drone technology, the Government seems to have little impetus to correct the misinformation and fallacies circulating about this technology.
http://www.tom-watson.co.uk/2013/10/ministry-of-defence-on-drones-a-lesson-on-opacity-and-obfuscation”>Tom Watson MP