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RETURN TO NEVERLAND? FREEDOM OF INFORMATION AND THE HISTORY OF BRITISH INTELLIGENCE*

  • CHRISTOPHER J. MURPHY (a1) and DANIEL W. B. LOMAS (a1)

Abstract

This article considers the use of the UK Freedom of Information (FOI) Act in order to explore the history of British intelligence. While the intelligence and security agencies are themselves exempt from the Act, releasing only such archival material into the public domain as they see fit, the article will argue that this does not mean that FOI cannot be used productively in this area. Rather, by adopting a wider definition of ‘intelligence’, as advocated by Wesley K. Wark in this journal in 1992, FOI can be used as part of a broader research strategy to secure the release of information that allows the archival study of intelligence to move beyond the material released by the agencies themselves. The article will illustrate this point by drawing on relevant examples of successful FOI requests, while also highlighting some of the related practical challenges and limitations that its use has revealed.

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Corresponding author

School of Humanities, Languages and Social Sciences, University of Salford, Salford, Greater Manchester, M5 4WTc.j.murphy@salford.ac.uk

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*

The authors would like to thank the anonymous referees for their helpful and constructive comments on the draft manuscript.

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References

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1 www.direct.gov.uk/en/governmentcitizensandrights/yourrightsandresponsibilities/dg_4003239. For further information on the origins and development of the Freedom of Information Act, see www.ucl.ac.uk/constitution-unit/research/foi/what-is-foi2.

2 See, for example, the release of information relating to ‘Black Wednesday’; 16 Sept. 1992, when John Major's Conservative government was forced to withdraw the pound from the European Exchange Rate Mechanism. The information was released by the treasury in February 2005, with a general election looming – a point that was not missed by a number of Conservative politicians; Oliver Letwin, then shadow chancellor, suggested that the Act had been used with ‘maximum effect to achieve a propaganda coup’ (Matthew Tempest, ‘Treasury papers reveal cost of Black Wednesday’, Guardian, 9 Feb. 2005; ‘Treasury releases 1992 ERM papers’, BBC News, 9 Feb. 2005, http://news.bbc.co.uk/1/hi/uk_politics/4248855.stm). At one point, the Ministry of Defence received more requests for information on UFOs than any other topic, an administrative burden which was subsequently relieved by the decision in 2007 to declassify the department's entire UFO archive to the National Archives, Kew (‘Files released on UFO sightings’, BBC News, 14 May 2008, http://news.bbc.co.uk/1/hi/7398108.stm>; Nick Pope, ‘UFOs: the (boring) truth is out there’, Guardian, 18 Feb. 2010, http://www.guardian.co.uk/commentisfree/2010/feb/18/ufos-the-boring-truth).

3 McDonald, Andrew, ‘Freedom of information and the historian’, Twentieth Century British History 12 (2001), pp. 93–4, at p. 93; Flinn, Andrew and Jones, Harriet, ‘The Freedom of Information Act in practice: the historian's perspective’, in Flinn, Andrew and Jones, Harriet (eds.), Freedom of information: open access, empty archives? (London, 2009), p. 39.

4 Academics were responsible for 811 from a total of 21,294 FOI requests placed with the Ministry of Defence between January 2005 and August 2011. In contrast, journalist and other media-driven requests account for 2,610. (Information provided by ministry of defence (MOD), 10 Nov. 2011.) A similar pattern can be found elsewhere; between March 2006 and the end of October 2011, the ministry of justice received 2,363 requests from journalists, 1,859 from business and 369 from charities and lobby groups. Academics accounted for just 210 of over 17,000 requests. (Information provided by ministry of justice, 31 Oct. 2011.) Similarly, the Treasury Solicitor's Office received just seven requests from academics out of a total of 619. (Information provided by Treasury Solicitor's Office, 26 Nov. 2011.) Such figures must, however, be considered with two significant caveats. FOI is both applicant and motive ‘blind’; users have no obligation to disclose information regarding their background, or to reveal the purpose of the request. As such, 10,358 requesters logged at the MOD are ‘Not Specified’, a number which could include further requests from historians. In addition, a number of government departments were unwilling to comply with the original request for information on uses of the Act, citing concerns over data protection.

5 Enacted in 1966, the US Freedom of Information Act has become an important tool for studying the history of the US intelligence agencies. On the use of US FOI legislation, see Wasserstein, Bernard, ‘Joys and frustrations of FOIA’, Twentieth Century British History, 12 (2001), pp. 95105, and Lee, Raymond M., ‘Research uses of the U. S. Freedom of Information Act’, Field Methods, 13 (2001), pp. 370–91. Alongside other agencies, the Central Intelligence Agency (CIA) accepts requests under the Act, and makes released material freely available online (see ‘Freedom of Information Act electronic reading room’, www.foia.cia.gov/). The National Security Archive, based at George Washington University's Gelman Library, holds a large collection of documents from the State and Defence Departments, the Central Intelligence Agency (CIA), National Security Agency (NSA), and other government agencies, that have been secured through FOI (see www.gwu.edu/∼nsarchiv/index.html).

6 See ‘Section 23’, www.legislation.giv.uk/ukpga/2000/36/section/23. For further information on the scope of the exemption, see ‘Exempt guidance for freedom of information (FOI)’, www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/exemptions-guidance.

7 Freedom of Information Act (Original as Enacted), www.legislation.gov.uk/ukpga/2000/36/contents.

8 Wark, Wesley K., ‘In never-never land? The British archives on intelligence’, Historical Journal, 35 (1992), pp. 195203, at p. 201. The article was soon followed by a ‘sequel’ that discussed the early results of the Waldegrave Initiative: Aldrich, Richard J., ‘British and American policy on intelligence archive: never-never land and wonderland?’, Contemporary Record, 8 (1994), pp. 132–50.

9 Stafford, David, Britain and the European resistance (Toronto, 1980), p. xi.

10 Andrew, Christopher and Dilks, David, eds., The missing dimension: governments and intelligence in the twentieth century (London, 1984), p. 4.

11 For further discussion of the Waldegrave Initiative, see Aldrich, Richard J., ‘The Waldegrave Initiative and secret service archives: new materials and new policies’, Intelligence and National Security, 10 (1995), pp. 192–7; idem, ‘Did Waldegrave work? The impact of open government upon British history’, Twentieth Century British History, 9 (1998), pp. 111–26.

12 For further information on Security Service file release, retention, and destruction policy, see www.mi5.gov.uk/home/about-us/how-we-operate/managing-information/retention-and-destruction-of-files.html.

13 See, for example, Gill, Peter, ‘Reasserting control: recent changes in the oversight of the UK intelligence community’, Intelligence and National Security, 11 (Apr. 1996), pp. 313–31.

14 While the Security Service releases its own archival material, SIS continues to observe a strict policy of non-disclosure. Government Communications Headquarters (GCHQ) has released considerable material about the work of its predecessor, the Government Code and Cypher School (GC&CS) during the interwar years and the Second World War, but little from its own post-1945 archive. As Bennett notes, ‘Records dating from after VJ day are not normally released, except in cases such as the collaborative contribution to the “Venona” release, or where a story is taken beyond that date in the interests of completeness’ (Bennett, Gill, ‘Declassification and release policies of the UK's intelligence agencies’, Intelligence and National Security, 17 (2002), pp. 2132, at p. 26).

15 Drawing on earlier remarks made by John Lewis Gaddis, Aldrich suggests that his observation that some work in the field ‘is the equivalent of “military buffism” – a kind of secret service train-spotting’ continues to hold true, while Ferris has more bluntly observed that ‘the missing dimension is filled with train-spotters’ ( Aldrich, Richard J., ‘“Grow your own”: Cold War intelligence and history supermarkets’, Intelligence and National Security, 17 (2002), pp. 135–52, at p. 138; Ferris, John, ‘The road to Bletchley Park: the British experience with signals intelligence, 1892–1945’, Intelligence and National Security, 17 (2002), pp. 5384, at p. 54).

16 Ferris, The road to Bletchley Park’, p. 54.

17 Kent, Sherman, Strategic intelligence for American world policy (Hamden, CT, 1965 edn), Introduction, p. xxiii, cited in Herman, Michael, Intelligence power in peace and war (Cambridge, 1996), Introduction, pp. 1–2.

18 Aldrich, ‘Cold War intelligence and history supermarkets’, p. 138; Ferris, ‘The road to Bletchley Park’, p. 55.

19 Aldrich, ‘Cold War intelligence and history supermarkets’, p. 138.

20 Wark, ‘The British archives on intelligence’, p. 202; Hughes, R. Gerald and Scott, Len, ‘“Knowledge is never too dear”: exploring intelligence archives’, in Hughes, R. Gerald, Jackson, Peter, and Scott, Len, eds., Exploring intelligence archives: enquiries into the secret state (Abingdon, 2008), p. 2.

21 Goodman, Michael S., ‘The dog that didn't bark: the Joint Intelligence Committee and the warning of aggression’, Cold War History, 7 (2007), pp. 529–51, at p. 530.

24 ‘Appointment of John Scarlett as head of MI6’. The description continued: ‘This document brings together all records leading up to and concerning the appointment of John Scarlett as the Head of MI6 in June 2004. The Cabinet Office has released the information in response to a request under the Freedom of Information Act.’ This material has since been removed. The gov.uk website now offers a searchable facility for FOI releases felt to be of wider public interest, which covers all central government departments. At the time of writing, this facility dates back only to May 2010. See www.gov.uk/government/publications.

25 While not specifically defined by the Act itself, the Information Commissioner's Office explains being ‘in the public interest’ as ‘something which serves the interests of the public. When applying the test, the public authority is simply deciding whether in any particular case it serves the interests of the public better to withhold or to disclose information’ (Information Commissioner's Office, ‘Freedom of Information Act awareness guidance no 3: the public interest test’, www.ico.org.uk/upload/documents/library/freedom_of_information/detailed_specialist_guides/awareness_guidance_3_-_public_interest_test.pdf.

26 ‘Ministry of justice freedom of information guidance, exemptions guidance Section 23: information supplied by, or relating to, bodies dealing with security matters’, www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s23.pdf (Mar. 2012).

27 Some of the rare insights into such activities have emerged from the private papers and correspondence of senior ministers and officials in government. One notable example was the discovery by Matthew Jones of a joint SIS–CIA plan for covert action in Syria in 1955 (Jones, Matthew, ‘The “preferred plan”: the Anglo-American working group report on covert action in Syria, 1957’, Intelligence and National Security, 19 (2004), pp. 401–15).

28 Jeffery, Keith, MI6: the history of the Secret Intelligence Service, 1909–1949 (London, 2010). For a popular account of the operation, see Bethell, Nicholas, The great betrayal: the untold story of Kim Philby's greatest coup (London, 1984).

29 ‘Policy Towards Albania’, 21 Mar. 1949, The National Archives (TNA), FO 800/437.

30 Menzies to Strang, 4 Mar. 1949, TNA, FO 800/437.

31 ‘Policy towards Albania’, 21 Mar. 1949, TNA, FO 800/437.

32 Aldrich, Richard J., The hidden hand: Britain, America and Cold War secret intelligence (London, 2001), p. 144.

33 Jeffery, MI6, p. 714.

34 AC (H) (51)1, Official Committee on Communism (Home), constitution and terms of reference of the committee, 7 June 1951, TNA, CAB 21/4317.

35 Lashmar, Paul and Oliver, James, Britain's secret propaganda war, 1948–1977 (Stroud, 1998), pp. 105–15.

36 Weiler, Peter, British labour and the Cold War (Stanford, CA, 1988), pp. 190–1.

37 AC (H) (51) 5th meeting, 2 Oct. 1951, TNA, CAB 134/737.

38 AC (H) (52) 1st meeting, 12 Mar. 1952, TNA, CAB 134/737.

39 AC (H) (52) 2nd meeting, 24 Mar. 1952, TNA, CAB 134/737. For more information on IRD's domestic activities, see Lomas, Daniel W. B., ‘Labour ministers, intelligence and domestic anti-Communism, 1945–1951’, Journal of Intelligence History, 12 (2013), pp. 113–33.

40 See Aldrich, Richard J., ‘Policing the past: official history, secrecy and British intelligence since 1945’, English Historical Review, 119 (2004), pp. 922–53; Harrison, E. D. R., ‘J. C. Masterman and the Security Service, 1940–1972’, Intelligence and National Security, 24 (2009), pp. 769804; Moran, Christopher R., Classified: secrecy and the state in modern Britain (Cambridge, 2012); Murphy, Christopher J., ‘The origins of SOE in France’, Historical Journal, 46 (2003), pp. 935–52.

41 ‘The official history of intelligence in World War II and related subjects’. The document has since been released to the National Archives in CAB 103/733.

42 ‘Use of special intelligence by official historians’, JIC(45)223(0)(Final), 20.07.45, Annex 1: draft directive – general directive for safeguarding intelligence sources in compiling official histories, TNA, CAB 103/288.

43 ‘The official history of intelligence in World War II and related subjects’.

44 See TNA, PREM 8/1343 (‘Letter from prime minister to prime ministers of Canada, Australia, New Zealand and South Africa on discussion of security at autumn conference: counter-action of Soviet infiltration methods; conference on security to be held, May 1951; Sir Percy Sillitoe to visit New Zealand’, 1948–51); TNA, PREM 8/1274 (‘Commonwealth security and exchange of information (Part 2)’, 1950); and TNA, PREM 11/349 (‘Commonwealth security conference to be held in London in June 1953: visit by Sir Percy Sillitoe to New Zealand to advise on local security’, 1951–3).

45 Letter from Openness Team, Knowledge and Information Management Unit, Cabinet Office, 9 Feb. 2011.

46 Letter from Historical FOI Team, Information Management Department, FCO, 22 Feb. 2011; letter from head of corporate records, FCO, 22 Feb. 2011.

47 The cost ceiling for central government departments when dealing with FOI requests was initially set at £600; this was based on a calculation that saw work on requests charged at £25 per hour, equating at a maximum of three and a half days work on a request.

48 Letter from the Home Office, 30 Mar. 2005.

49 Email from Historical FOI Team, Information Management Department, FCO, 5 Oct. 2010.

50 Letter from head of corporate records, FCO, 21 Oct. 2010.

51 Maurice Frankel, ‘Freedom of Information Act: don't feel obliged to take no for an answer’, Independent, 5 Feb. 2005.

52 Letter from PA to director of propriety and ethics, Cabinet Office, 27 Oct. 2011.

53 Introduction by Christopher Graham, the information commissioner, during the inaugural ICO Alan Turing Lecture held at the Museum of Science and Industry, Manchester, 11 Sept. 2012, www.youtube.com/watch?v=3k1NbD1n7b0. During 2011/12, the ICO received over 4,500 complaints related to FOI, 24 per cent of which related to central government departments. In nearly half of all FOI cases brought before the ICO, the complaint could be resolved informally, without the need for the commissioner to resort to the issuing of a decision notice, and thereby forcing an authority to release the relevant information requested (information commissioner's annual report and financial statements 2011/12, www.ico.org.uk/about_us/performance/∼/media/documents/library/Corporate/Research_and_reports/annual_report_2012.ashx).

54 Email from Information Commissioner's Office 13 Sept. 2011.

55 Email from Knowledge and Information Management, Cabinet Office, 27 Oct. 2011. The file was subsequently released to the National Archives in October 2012. See ‘Communism committee records released to The National Archives’, www.nationalarchives.gov.uk/news/775.htm.

56 O'Halpin, Eunan, ‘Problems in obtaining and using official records for research in Irish and British history in the twenty-first century’, in Flinn, and Jones, , eds., Freedom of information, p. 148. This is not always the case with the results of FOI requests, which can also result in the release of the material in question to the National Archives.

57 John Crace, ‘Where's the beef?’, Guardian, 11 Jan. 2005.

58 Aldrich, ‘Cold War intelligence and history supermarkets’, pp. 146–7.

59 While certain sensitive material inevitably remains off limits, Kristan Stoddart has noted that FOI has altered research in the field ‘a great deal’, a position supported by Matthew Grant, who notes that FOI has provided a steady ‘stream’ of information since it came into force. Stoddart, Kristan, ‘The British Labour government and the development of Chevaline, 1974–1979’, Cold War History, 10 (2010), pp. 287314, at p. 288; Grant, Matthew, After the bomb: civil defence and nuclear war in Britain, 1945–1968 (Basingstoke, 2010), p. 5. According to the British Nuclear History Study Group based at the Mountbatten Centre for International Studies, Southampton University, the ‘post-Cold War culture of openness and the 2005 Freedom of Information Act’ made ‘a lot more primary-source information … available to researchers’ (‘British Nuclear History’, www.mcis.soton.ac.uk/programmes/bnhistory.php).

60 Section 23 includes an exemption from the Act's requirement to confirm whether or not the information requested is actually held; Section 23(5) ‘allows the public authority to neither confirm nor deny that it holds the information’, known as NCND (see www.ico.org.uk/for_organisations/freedom_of_information/guide/∼/media/documents/library/Freedom_of_Information/Detailed_specialist_guides/security_bodies_section_23_foi.ashx). In response to a request for information on a 1946 Directive issued to MI5's director-general, the Cabinet Office gave the following response: ‘In reliance on the exclusion in Section 23(5) of the Freedom of Information Act, which relates to bodies dealing with security matters, I can neither confirm nor deny whether there is any information held which is subject to Section 23(1) of the Act’ (email from Openness Team, Knowledge and Information Management Unit, Cabinet Office, 19 June 2012). Our own experience with the Act suggests at least that the use of NCND is a somewhat rare occurrence.

* The authors would like to thank the anonymous referees for their helpful and constructive comments on the draft manuscript.

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