A week into the Chilcot Inquiry, the government’s witnesses are doing their best to present a sanitised version of how Britain went to war and the inquiry is doing its best to make it possible. The inquiry is either unwilling or able to publish the evidence that would challenge the witnesses’ version of events. Neither is it able to quote from this evidence. The government has control not only over what the inquiry can publish but what questions it can ask. In the absence of real evidence, leaked documents are once more making the running.

Four weeks ago, the Cabinet Office published a protocol setting out the rules for disclosing government information and for the publication of such information by the inquiry. I commented at the time that the process by which the inquiry had to seek permission for every piece of information it wanted to publish, with the government having the final say, made the type of mass publication carried out by the Hutton Inquiry unlikely.

Now that the hearings have started, the inquiry has not put a single new document into the public domain and the only new information has come, once again, from leaks to Sunday newspapers. Last week Liberal Democrat leader Nick Clegg criticised Gordon Brown on this issue, accusing him of “suffocating” the inquiry. But it’s worse than that. The inquiry is being gagged.

What few people have yet realised is that the government’s veto over what the inquiry can disclose extends to the questions it can ask. The protocol states that:

“Where the inquiry decides that any information provided to it by HMG, or reference to such information, constitutes relevant information which it wishes to include in its final report or at any point in its proceedings, it shall first follow the procedure set out for agreeing with HMG the form in which the information is made public or referred to publicly.”

So if the inquiry wants to make reference “at any point in its proceedings” to information provided by the government, it needs permission. It apparently does not have such permission. This undermines inquiry chairman Sir John Chilcot’s claim that witnesses will not bother misleading the inquiry because, “the stuff is there on paper anyway”.

The result is that the Committee is giving witnesses an easy ride. Yesterday’s (Monday) session with Sir David Manning, formerly Tony Blair’s foreign policy adviser is a case in point. Manning denied that Blair agreed in March 2002 to join the US plan for regime change in Iraq, but he set out a fallback position that regime change didn’t actually mean overthrowing the regime. Yet documents exist that easily disprove these assertions. A memo from Manning to Blair in March 2002 records that Manning told the then US national security adviser Condoleezza Rice that Blair “would not budge” in his support for regime change. An “Iraq Options” paper of the same month — produced from within Manning’s section of the Cabinet Office — concludes that “the use of overridng force in a ground campaign” should be the government’s policy on Iraq.

Yet, although these documents have long been in the public domain and have undoubtedly been given to the inquiry, they have not been published and not once did the inquiry members raise them. Neither did they raise another allegedly revealing document from Manning, a note of a meeting between Blair and George Bush in January 2003, in which Blair is said to have promised support for the invasion whatever the outcome of the UN inspections that were taking place at the time.

Dr Brian Jones, formerly of the Defence Intelligence Staff and a contributor to Iraq Inquiry Digest, called the panel’s performance “pitiful”.

He said: “They didn’t get close to exploring the implications of what was in the documents we know about. They pointed up but did not explore differences between Christopher Meyer and David Manning’s evidence, and most importantly they did not pursue “Iraq: Options” of 8 March 2002 which laid out a blueprint of how to get to military action. It was written by the Overseas and Defence Secretariat which reported to Manning, and was, I am almost certain, seen by the Butler Review. Perhaps Chilcot is not covering what he sees as old ground covered by previous inquiries but that hardly adheres to one of the main objectives of a public inquiry – convincing the public that things are being done thoroughly and forensically.”

There are some occasions when the witnesses refer to the document themselves, which seems to liberate the panel to refer to them, however briefly. But they do not quote their contents and their comments are easily batted away by the witnesses.

At the time the protocol was published, the inquiry claimed that the panel was able to answer whatever questions it chose to ask. But the panel’s failure to quote from the documents contradict this. I have since asked the inquiry’s media spokesperson why it has not so far published any documents, whether it has plans to do, whether it has asked permission to disclose their contents and whether the panel have so far asked any questions deriving from them.

I got a single answer that merely replicates the statement on the Inquiry website: “As we’ve said all along, the Committee intends to publish the key evidence with its report at the end of the inquiry. It may also publish material on the website as the inquiry progresses where this will help increase public understanding of its work.” The inquiry clearly recognises that publishing documents might increase public understanding but seems to have no immediate plans to do so.

The widespread mistrust of previous inquiries into Iraq stems partly from the subsequent disclosure, through leaks or freedom of information requests, of documents that contradict the government’s version of events. Now that leaked versions of some of these documents are in the public domain, people feel that the job of the inquiry is to acknowledge these documents and confront government witnesses with them. If they won’t — or can’t — do this and simply accept government claims at face value, they may as well not bother.

Justine Greening MP is asking John Bercow, who was elected as Speaker last month, to ensure that MPs receive accurate and complete answers. She told him: “The need for transparency and accountability of ministers and Parliament has never been higher.”

In her letter, Greening, MP for Putney and shadow minister for London, listed five examples of written parliamentary answers where ministers either failed to answer her questions or provided answers that have subsequently been shown to be untrue.

Four of the five cases concern plans to expand Heathrow airport. The most recent involves a letter that BAA chief executive Colin Matthews sent Hoon last November. At the time, BAA issued a press release stating that it would ask the government to appoint an independent assessor to ensure that an expanded airport would only increase flights if it operated within environmental limits — a policy that was adopted by Hoon in January.

But the letter itself was not published. I made a freedom of information (FOI) request for it in March. The Department for Transport (DfT) refused to release it, citing an obscure section of the Environmental Information Regulations (EIR) and claiming that the letter’s contents were set out in BAA’s press release. Greening then tabled a parliamentary question asking for the letter to be placed in the House of Commons library. The government refused, also on the grounds that the press release contained “the substance of the letter”.

When Greening tabled a further question, asking for an explanation of this refusal, aviation minister Paul Clark, claimed that the contents of the letter were covered “in full” in BAA’s press release.

But I have obtained a copy of the letter from BAA [click here to read]. It contains a number of elements that were not in the press release, including an admission from Matthews that “for many people the environmental consequences of expanding Heathrow remain a major concern, and some have serious questions around how the noise and air quality limits will be met.”

The letter also included technical information that was not disclosed by the press release. It linked the role of the independent assessor for the third runway plans with an earlier proposal that a reformed slot allocation system would be the method used to limit flights. This would make the assessor’s findings independently enforceable. It also revealed that BAA had made this earlier proposal in February last year, in its response to the official consultation. That response — and therefore the earlier proposal — is no longer in the public domain, and the press release made no reference to the proposal.

The DfT’s response to my request raises questions about the tactics that the department is prepared to employ to block the release of information, in stark contrast to Gordon Brown’s recent promises of more transparency.

Both the FOI Act and the Environmental Information Regulations include exemptions that allow public authorities to refuse to disclose information that is available elsewhere. In its response to my request for a review of the DfT’s decision, a senior official asserted that because the letter and the press release covered the proposal for an independent assessor in the same terms, “the information contained within the two documents is the same”. She also offered reassurance that all the “relevant” information was in the public domain.

The DfT’s approach in this case concerns Maurice Frankel, director of the Campaign for Freedom of Information. He told me: “It was unnecessary and pedantic, and not releasing the letter was bound to create suspicion. They shouldn’t be assessing what you need to know. The regulation cited does not allow any information to be withheld, however insignificant or irrelevant it may be or be judged to be.”

A DfT spokesperson said: “This decision, made under EIR rules, was that the information requested was publicly available and easily accessible already, as it was contained in a BAA press notice issued in November 2008. The decision was internally reviewed and upheld.”

Another case in which Greening says a minister gave a misleading answer to a question also involves BAA’s lobbying over the new runway.

Ian Pearson, then a minister at the Department for Business, had appeared to claim that ministers had not met the aviation industry to discuss Heathrow expansion. But a letter from Peter Mandelson to Matthews revealed that business minister Baroness Vadera had met the BAA chief executive to discuss new runway capacity. The Department for Business claimed that Pearson had not answered inaccurately because no specific meetings about Heathrow had taken place.

But Greening disputes this. She told Bercow: “MPs should not need a degree in law to be able to word parliamentary questions to get adequate answers or to be able to ascertain the exact nature of a Ministerial response.

“The alternative of using the FOI route is cumbersome and deliberately dragged out by departments, but that is increasingly the route I take because I find that too often I cannot rely on the adequacy or accuracy of ministerial answers to my parliamentary questions.”

Yesterday the Observer, said the obvious conclusion from the events of recent weeks is that transparency matters. It could have said that transparency now matters to the wider public and is no longer just the obsession of a few journalists, freedom of information (FOI) campaigners and other anoraks.

Having seen what secrecy lets the political class get away with, people are very tuned in to it and want more than ever to exercise their right to know. A number of news outlets, including the BBC and the Guardian, invited members of the public to do their own investigations and the Guardian says today that 20,000 people have so far taken part in what it calls “a groundbreaking crowd sourcing exercise”.

The raw material for the exercise is the version of MPs’ expenses claims that House of Commons authorities were finally forced to publish under the FOI Act, with huge parts blacked out.

Here traditional journalism has the advantage and has had a huge headstart. The Telegraph had published or was able to publish the unredacted versions of the same document. It became apparent very quickly what a farce MPs’ attempt at openness was. People now know not only what redaction is but why it is done –– not always for the reasons claimed. As Labour’s Tony Wright said on Friday’s Newsnight, MPs’ “capacity for making it worse is infinite”.

The fact that the information came into the public domain quicker and in a fuller form via a leak shows the limitations of the FOI apartus and in the Telegraph’s view justifies decision to pay a large amount of money via an intermediary for personal data that has effectively been stolen. Anyone denying that exposing the scandal was in the public interest would get no further than the doomed suggestion that the police might investigate the leak. Data theft, fuelled by chequebook journalism, has become the lesser of two evils.

Instead, it is the actions of a select number of MPs that will be the focus of an investigation by the Metroplitan Police’s Economic and Specialist Crime Command.

But which was the greater political blunder –– the redaction of MPs’ expenses claims or Brown’s abortive attempt at a secret Iraq inquiry? However little the prime minister had to do with the former, he is likely to get a lot of the blame, as this month’s elections showed. The attempted Iraq cover-up was all his own work, but it showed the same failure to grasp that the rules of the game have changed.

As I pointed out last week, after the expenses scandal the idea that secrecy is being used to protect the reputation of public figures was bound to provoke more suspicion. I certainly did not predict how quickly it would all unravel. It was revealed at the weekend that one public figure whose need for secrecy was being accommodated was Tony Blair. Within a week, not only has the cover-up unraveled but leaks have revealed the cover-up itself.

Watching Brown’s statement last Monday, I noticed that he used the word “private” rather than “secret” to describe his inquiry, in the way that both he and Blair never talk about going to war but “into conflict”. He persuaded the BBC, amongst others, to use his language.

Secrecy has become a dirtier word than ever, but it is not interchangeable with privacy and public interest is not the same as “the public interest”. With both the expenses scandal and the Iraq inquiry, secrecy has failed and a mixture of public interest and the public interest has trumped claims to privacy. Untangling all the implications will take a while yet.

Allowing his long-promised inquiry to be labelled a cover-up already looks like another of Brown’s classic misjudgments. It is astonishing that the prime minister has announced an inquiry in a form that is opposed by both the Conservatives and the Liberal Democrats. If you are going to go for an establishment stitch-up, at least get the establishment on board.

At a meeting of the Commons public administration select committee last Thursday the great and the good were in near unanimous agreement that the inquiry should take place largely in public, and that Brown would not get away with a secret one. He might have done 20 years ago, but after the Hutton Inquiry and the expenses scandal, the public just won’t wear it.

Brown says his secret inquiry will be able to see all the papers, but this is a red herring. Hutton had access to many sensitive papers and published most — but not all — of them. He even questioned witnesses in public about the content of documents that were not published.

There is in any case a danger of exaggerating the extent to which the inquiry will need to look at new documents that are truly sensitive, as opposed to embarrassing. At least as far as the pre-war deception is concerned, many of the key papers are already in the public domain, for example the joint intelligence committee assessments that were in large part published in the Butler report and the “Downing Street documents” that give a good idea of what happened from the spring of 2002 onwards, when Tony Blair let George Bush know that he was fully signed up to regime change.

The problem is precisely that Tony Blair said: if only you could see the very secret intelligence that I see. In claiming that preserving national security precludes any semblance of openness, Brown is playing the same trick.

Just as there are only so many times you can cry wolf, there are only so many times you can play the national security card. Earlier this year, the government had to disclose a memo from a Cabinet Office official, suggesting that the September 2002 Iraq dossier might make a better case without the caveats and qualifications that would appear in a genuine intelligence assessment. The government had blocked disclosure for over three years, claiming that national security was at stake.

Brown has also claimed that people will speak more frankly to a “private” inquiry. The proposition may or may not be true, but it is just as likely that witnesses giving evidence in public will justify their actions with excuses and versions of events that would not stand up to public scrutiny. In any case, after the expenses scandal, the idea that secrecy is being used to protect the reputation of public figures will engender more suspicion.

The prime minister also implied that the alternative to a wholly private inquiry is a wholly public one, but he knows that all kinds of inquiries, courts and select committees, manage to operate mainly in public and then go into closed session when necessary.

In reality, the arguments are probably less important to Brown than the cold hard politics. There was no way that he was going to allow his government’s dirty washing to be aired every day between now and the election.

But the downside could be just as bad. Both opposition parties and many Labour MPs are now coming out against him. Relatives of dead British service personnel have threatened to march on Downing Street. This morning’s papers are universally critical of his decision.

A secret inquiry is also storing up trouble. A fairly reliable rule of politics is that the more you are seen to be hiding something, the more likely it becomes that it will come out. A secret inquiry will increase the value of the information of which the public is being deprived and journalists, myself included, will redouble our efforts to obtain it. Evidence and papers are bound to leak, probably to resurface just before the election.

Brown has clearly learned nothing from the expenses scandal, in which the Commons speaker was forced out of his job largely because he was seen as the man who tried to hide the truth. He now risks becoming the Michael Martin of the Iraq cover-up.

The MoJ claims cock-up rather than conspiracy. Either way, the department responsible for the Freedom of Information Act (FOI) has an appalling record of non-compliance with its provisions. Not to mention that it was Straw who did severe damage to the Act by blocking release of the pre-Iraq war cabinet minutes.

On Friday last week the MoJ published a list of 76 sites it had considered for the new supersize jails, which were to house up to 2,500 prisoners each. The disclosure was ordered last month by Richard Thomas, the Information Commissioner. Under Thomas’s ruling the MoJ was required to publish the list by Thursday at the latest, and risked court proceedings for contempt by failing to comply.

But the list was published only after media outlets had been briefed that plans for Titan prisons had been abandoned, to be replaced by five new jails holding 1,500 prisoners each.

The information was requested by Tory MP John Baron a year ago. Baron told me: ‘We should have had this information on Thursday. They seem to have been spinning in the media before complying with the ruling.’

When Straw formally announced the policy change in the House of Commons on Monday, he confirmed that he had deliberately chosen to withhold the list of potential sites to avoid controversy, ‘precisely so as not unnecessarily to worry local residents’. The tactic was not entirely successful, as a number of local newspapers assumed that sites named in the list might host the new jails.

Baron was not called to speak in the debate, but Straw was criticised by shadow Justice Secretary Dominic Grieve, who expressed his ‘disappointment’ that the government had once again ‘trailed a major policy announcement in the weekend press, with the Government’s usual disdain for this House.’

In response, Straw claimed that, had Grieve been in his department, it would have been ‘palpable’ that Straw ‘did not appreciate the leaks’. But on Friday the Independent had quoted ‘government sources’ as insisting ‘that Mr Straw decided to retreat because of the strong objections raised by penal reform groups as well as local opposition…’. These were the same reasons given by Straw on Monday.

The Ministry of Justice has tried to distance itself from the leaks, but — like Straw — has declined to make an on-the-record statement denying responsibility. A spokesperson told me that the information was released in good faith and that failure to comply with Thomas’s ruling was ‘an administrative error’.

The Information Commissioner’s Office said that the apparent breach would be brought to the attention of its enforcement and good practice team.

The MoJ has a very poor record on compliance with the FOI act, which Straw was responsible for introducing when he was Home Secretary. Ironically, on the very day that it should have published the information on Titan prisons, the MoJ did publish the latest statistics showing levels of compliance with the Act among government departments and other state bodies. These statistics did not reflect well on the MoJ.

The department managed to answer only 51 per cent of requests within the time guidline, compared to an average of 87 per cent for all monitored bodies. It also had a very poor record of releasing information as requested, granting only 33 per cent of requests in full, compared to an average of 57 per cent.

Last year, Thomas crtitcised the National Offender Management Service, which runs the prisons system, for its poor record on FOI.

Baron has written to Straw complaining about the late release of the information on Titan prisons and asking him to look into ‘whether there is a systemic problem within the Ministry of Justice when it comes to making information available’.

Either way, the MoJ’s non-compliance with the legislation for which it is responsible does not look good, and its parallel efforts to manage the media only make things worse.

Two weeks ago, I described here how I had acquired a previously secret list of documents that the Information Commissioner had allowed to be withheld or censored as part of an FOI release. These documents commented on an early draft of the September 2002 dossier on Iraq’s ‘weapons of mass destruction’. They included a letter from the UK mission to the United Nations, from which the comments of an official of an international organisation had been ‘redacted’.

According to the Commissioner’s decision notice, the Cabinet Office had cited the exemption under Section 27 of the FOI Act, relating to damage to international relations. Officials had asserted that the comments were given in confidence and that publishing them would provide evidence that Britain does not protect confidential information, leading to an erosion of trust.

I said that the government had not previously disclosed that any such organisation had commented on the dossier. This was not quite true, and I hold my hand up to my error, although admittedly, I did not have all the information. When the Cabinet Office subsequently disclosed the identity of the letter’s author, a quick Google search revealed that Jack Straw, then foreign secretary, had already published it in full. The comments in the letter were from no less a figure than former UN weapons inspector Hans Blix.

In 2004, having to announce the withdrawal of the notorious ’45 minutes’ claim, Straw was clutching at, well, straws. He claimed that ‘the evidence that we put forward was a view that was widely shared at the time by other foreign intelligence agencies, as well, as it happened, by Dr. Blix’. He quoted Blix, as reported in the letter, saying that the dossier ‘did not exaggerate the facts, nor revert to rhetoric, probably both desirable for its credibility’.

This was both misleading and unfair to Blix. As Straw admitted, Blix was shown an early draft of the dossier. Recently published documents have confirmed that it was deliberately hardened up between the draft in question, dated 10 September 2002, and the publication of the final document on 24 September. The 45 minutes claim was sexed-up and caveats and qualifications were removed. As Blix once put it, question marks were replaced with exclamation marks.

But did Straw also breach Blix’s confidence? It appears not, although he did not make this clear at the time, telling Parliament only that he had informed Blix of his intention to publish his comments. To an outside observer, it appeared that Straw was not only being cavalier with confidential information, but using it against the person who supplied it. In fact, Blix has told me that he could have objected to the disclosure, but did not.

Behind the farce of a government trying to suppress a document it had already published lies an important question. If Straw could obtain such consent as was required to make a political point, why could not the Cabinet Office have done something similar in relation to my FOI request?

The answer is that there is an acute double standard when it comes to confidential information. A government that can claim damage to international relations to suppress evidence of torture and cite cabinet confidentiality to withhold cabinet minutes will find a way around such concerns when it suits its own interests.

Last week the Cabinet Office confirmed that it is invoking the same FOI exemption to withhold another Iraq-related document, in this case an email that intelligence chief John Scarlett sent to the head of the post-war Iraq Survey Group, asking him to include false claims about Iraq’s WMD. Even though the information was generated by a British official, the government still claims confidentiality.

The Blix episode does not reflect very well on the Information Commissioner’s office (ICO) either. It does not appear to have checked that the letter was not already published or to have asked whether the Cabinet Office had taken the basic step of seeking Blix’s permission to disclose it.

But it was thanks to the efforts of the ICO’s solicitors that the full story was eventually revealed. Initially the Cabinet Office disclosed the information in question by typing the text of emails and letters into a new document rather than releasing the documents themselves. This was full of errors and withheld the identity of the Blix document’s author. When I complained, the ICO ensured that I got an accurate account of the information.

There are lessons for everyone involved in this saga. Most importantly it has shown everyone, including the Information Commissioner, the double standard that the government applies to the release of confidential information.

Two weeks ago the Cabinet Office finally released a batch of memos and emails commenting on a single draft of the dossier. These came mainly from the defence intelligence staff (DIS) at the Ministry of Defence and showed the derision with which intelligence experts treated the dossier’s allegations about Saddam Hussein’s alleged weapons of mass destruction. As I wrote here, the Cabinet Office had delayed releasing the documents following a ruling in September from the Information Commissioner, Richard Thomas.

When the Cabinet Office appealed to the Information Tribunal, it sent me — apparently by mistake — a secret list of which documents the commissioner ordered to be fully or partially disclosed or withheld altogether on ‘national security’ grounds.

Put together with what we already know, the suppressed documents are potentially as revealing as those that were released. They include a further seven emails sent to or from the DIS analysts on one day. In total, the published and unpublished documents suggest over 20 emails were sent over the course of four working days, some of which raised multiple issues about the draft dossier. Neither the Hutton nor Butler inquiries gave any indication of this level of debate.

Dr Brian Jones, formerly a manager in the DIS, told the Hutton and Butler inquiries about his analysts’ very serious concerns over the dossier’s ‘over-egged’ claims. He says: ‘The missing documents might reveal something more specific about the nature of the pressure that was being put on the analysts to come up with the “right” answer.’

Jones was one of the whistleblowers who gave evidence to the public administration select committee last week. Unlike Katherine Gun and Derek Pasquill, who sat beside him, Jones did not leak information to the media. When the dossier was published, he was surprised that neither the media nor MPs noticed the differences between its claims and the even more exaggerated assertions made by Blair. ‘I thought the intelligence services were going to be crucified,’ he told the committee.

Also appearing, by videolink from New York, was former diplomat Carne Ross, who said that a large number of very revealing documents remain buried in Whitehall. Ross also told the committee: ‘There should be a full public inquiry or parliamentary inquiry into the decision-making that took place. Hutton and Butler are by no means sufficient to that purpose and it is disgraceful the government pretends they are.’

Ross was at one time first secretary at the UK mission to the United Nations in New York, and saw the early stages of what became the dossier before leaving in 2002. One of the documents released this month contains comments on the dossier sent from the mission to the Foreign Office in September 2002. Part of this document has been removed from the published version, but the Information Commissioner’s decision made clear that it related to comments on the dossier from a member of an ‘international organisation’. The government has never disclosed that it consulted the UN or any related agency over the dossier.

The influence of the Bush administration is much clearer. The list of unpublished documents provides more evidence of the extent to which the dossier’s drafters sought to match its claims with those in a forthcoming CIA ‘dossier’. One of the emails described on the list attached a copy of a Bush speech, ‘to compare with UK dossier claims’. In total, at least seven documents make or invite comparison with existing or forthcoming US claims, with no evident concern for the accuracy of those claims.

Leaked documents have revealed that Sir Richard Dearlove, then head of MI6, told a meeting at 10 Downing Street in July 2002 that the US was fixing ‘the facts around the policy’. In spite, or perhaps because of this, Alastair Campbell, Blair’s top spin doctor
invited Scarlett to ensure that the UK dossier would complement rather than conflict with US claims. This request was made just two days before the first of the new documents and was evidently passed on to the dossier’s drafters.

In the spirit of openness, I am publishing the list on my Iraq dossier website. As for the unpublished documents themselves, we will probably have to wait for someone to leak those. We can neither rely on Gordon Brown to set up a genuine inquiry nor on any inquiry to grasp the accumulating evidence of Tony Blair’s Iraq deception.

Greening famously obtained proof that BAA helped the DfT to ‘reverse-engineer’ its forecasts to show that a new runway would meet ministers’ ‘strict environmental tests’. This evidence came from a request for disclosure of communications between the two organisations. But the DfT has refused two almost identical requests from Greening covering later periods. The Information Commissioner, Richard Thomas, is expected to rule shortly on her complaints.

Many of the papers the DfT is withholding cover the period immediately before it launched its consultation document on Heathrow expansion in November 2007. The department has disclosed that they include around 30 exchanges, which ‘without exception… relate to the preparation of the final supporting technical reports (all since published) or to BAA technical input to the main consultation document’. The two reasons it has given for withholding these exchanges have already been rejected by Thomas.

The main reason cited by the DfT, using provisions in the environmental information regulations rather than the very similar FOI Act, are that they are ‘unfinished’. Thomas has already ruled in an earlier case — albeit one that the DfT is appealing — that this provision simply does not apply to early versions of papers that have since been published.

The DfT’s reason for concluding that the balance of public interest requires suppression of the documents is even more clearly against both the spirit of FOI laws and the letter of Thomas’s published guidance. Although the department has admitted that the papers ‘could give insight into how the final documents were developed’, it has claimed that this would lead to a ‘distorted view of how the final documents developed’ and to ‘ill-informed’ speculation.

If not a direct admission that the papers are damaging, this is as close as you will ever see in a refusal notice to such an admission. This type of negative approach to information requests has been specifically ruled out in guidance published by Thomas, who says that the answer to ‘ill-informed’ speculation is more, not less, information.

But the DfT seems unable to conjure up any reason to refuse Greenpeace’s request. The environmental campaign group previously obtained the department’s risk register documents for the airport expansion project, which showed how officials said one thing in private and something very different in public, particularly as ministers prepared to launch the consultation. Last October it put in a new request for later versions of the same documents.

Four months on, the DfT has yet to provide a substantive response, in spite of a statutory requirement to do so within 20 working days.

Ben Stewart, Greenpeace’s head of press, who made the request, says the official handling it initially told him that it would be straightforward, requiring only an assessment of which parts of the documents needed to be ‘redacted’, meaning censored.

But then things became complicated. The case was linked with one from another requester, later said to be Greening, in which an internal review was said to be ongoing. Although there is no provision in the FOI Act for delay on these grounds, delay is what the DfT has done ever since.

Stewart says: ‘I thought it would be straightforward to ask for and get the latest in a series of documents that had already been released. As it is, over the past few months, I have had some of the most bizarre conversations of my life with DfT officials, who seem incapable of abiding by a single aspect of the FOI regulations. First they simply ignored my request, then they promised me the documents by the end of the week, every week.

‘They then dispensed with serial misrepresentation and went instead for the silent treatment, replying to every question with the phrase ‘I will only discuss this with you in writing’, even when I asked them how they were. So I wrote, and they didn’t reply. I phoned to ask if there was an information rights team at the DfT — as there is at most Whitehall departments — but this question was addressed as if it was a matter of national security. They simply couldn’t talk about the existence or otherwise of such a team.’

The DfT has declined to comment on the grounds that the case is still under consideration. But the Information Commissioner’s office has now written to the department twice about the case, including a letter in December from the assistant commissioner, Gerard Tracey.

Last week Stewart received a call from the information rights department at the DfT — which does indeed exist — to apologise for the treatment he has received. But, unsurprisingly for a spin doctor, he is quick to point to an obvious conclusion: ‘I’m wondering, if Hoon’s case for a third runway is so strong, what is he hiding?’

Writing for the Guardian today, Reid, Afghanistan researcher for Human Rights Watch, accuses the MoD of whispering into the ear of the Sun newspaper. She points out that the most insidious part of the spin coming out of the government machine is the suggestion that she had a personal relationship with McNally, ‘in a country where a woman’s reputation can mean her life’.

The MoD has yet to comment on the counter-allegations but, given today’s adverse publicity on the case, it looks like it’s been caught in a fairly ham-fisted attempt to manage the news. In this case the issue is civilian casualties in Afghanistan. A world in which civilian casualties are an official secret is a strange one, but it’s easy to see why the MoD would want to keep a lid on the figures. Reid says she has received legal advice that the type of information she received was not covered by the OSA.

The case takes place in the context of ongoing attempts from the highest level of the MoD to keep a lid on politically damaging news, particularly in the run up to the next general election. Insiders are saying that the controls on serving military personnel and civil servants speaking and writing publicly are the tightest for a generation.

The MoD says its guidance on talking to the media has not changed since the summer. But its attempts to gag officials of the PCS union over the defence training review (DTR), show it taking a pretty tough line.

The DTR is potentially New Labour’s biggest ever private finance initiative (PFI). The idea is to centralise the MoD’s specialist training at a privately-run academy in the Vale of Glamorgan. Ministers want to give a £12 billion, 30-year contract to build and run the academy to a consortium called Metrix, led by arms company Qinetiq.

The part-privatisation was already controversial before the credit crunch pushed up the cost of borrowing and inflated the price of the contract by £1 billionn. It has been strongly opposed by the Public and Commercial Services (PCS) union, whose members would be given the choice of transferring to Metrix and moving to Wales or losing their jobs.

The PCS has claimed that the MoD has tried to ‘gag’ its representatives, who have engaged in a pretty robust media campaign against the PFI. The union points out that what it is doing is quite within the department’s own rules.

An MoD spokesperson told me that the PCS was not accusing the department of trying to gag it but was responding to a request from minister Bob Ainsworth for sensitive information to be handled accordingly. In fact, the item on the union’s website is headed: ‘MoD seeks to gag PCS representatives from speaking to the press. PCS responds.’

The MoD is of course happy to break the rules if it can get away with it. On Monday, John Hutton was forced to apologise to the House of Commons when news of a recruiting cap on foreign soldiers was leaked.
He claimed that: ‘The unauthorised leak to the media of this story went directly against our intention that this House should be the first to hear of the issue.’

But another recent MoD leak was very definitely authorised and very much undermined the government’s promise that major announcements would be made first to Parliament. In December, all the main media outlets quoted ‘a senior defence source’ giving some fairly precise details of plans to withdraw UK troops from Iraq. It’s hard to see how such a leak was not a breach of the OSA, but there was no sign of an inquiry or anyone being arrested.

The lessons from these mixed messages are fairly obvious. Leaks that work in the government’s interests are neither leaks nor criminal. Putting the wrong information into the public domain will get a swift and ruthless response. There is hypocrisy at the highest level of the MoD.

The email was sent in March 2004 by John Scarlett, then chairman of the Joint Intelligence Committee, to the head of the Iraq Survey Group (ISG), Charles Duelfer. The ISG was tasked with finding evidence that Saddam Hussein had weapons of mass destruction – as alleged in the September 2002 dossier produced by Scarlett. According to Rod Barton, an Australian intelligence official and former weapons inspector who was a special adviser to the ISG, Scarlett asked for additional material to be added to the group’s report.

The Cabinet Office has admitted that it still has a copy of the email but blocked my request to release it last month. It has cited the exemption under Section 27 of the FOIA, ‘prejudice to international relations’, claiming that disclosure would damage Britain’s ability to protect and promote its interests abroad. It has not explained why such damage would occur, nor has it acknowledged the specific public interest in releasing the document.

In response to this refusal, Barton has told me: ‘I don’t see how the disclosure of the email would cause damage to international relations. I imagine their argument would be that it was commenting on an ally’s document and as a matter of course, such comments could not be released.’ But he pointed out that the email was commenting on a draft report that he had largely written himself, and of which large parts were subsequently published by the ISG.

Barton said he thought the Cabinet Office had refused to release the email ‘because of the embarrassment it would cause, particularly to one individual’. When the document’s existence was first revealed in August 2004, Number 10 failed to deny that Scarlett had asked the ISG to produce a misleading report. Instead it denied that there had been any question of ‘seeking to mislead the ISG’.

The Cabinet Office’s decision is the latest in a series of cases in which the government has used Section 27 to block release of potentially embarrassing documents. In some cases it has directly admitted that disclosure would cause embarrassment while in others it has argued that disclosure of information supplied by other countries or international organisations would have an adverse effect on future co-operation.

In February, it emerged that the information tribunal had allowed the Foreign Office to remove a reference to Israel’s weapons of mass destruction from the draft of the Iraq dossier written by FCO press secretary John Williams. The FCO’s evidence to the tribunal – and therefore the existence of the reference – was disclosed by the Guardian.

Following the tribunal’s decision, the information commissioner has allowed the Cabinet Office to censor two further documents relating to the Iraq dossier. One was part of a memorandum from Scarlett which appears to show the involvement of another country on the drafting process. The commissioner accepted the Cabinet Office’s claim that disclosure might damage ‘the trust within which confidential exchanges between the United Kingdom and other Governments takes (sic) place’.

The commissioner also decided in 2006 that elements of the paper trail showing how the attorney general came to decide that the Iraq war was lawful were exempt under Section 27.

Last week the tribunal ordered the FCO to publish documents going back to the 1960s showing the involvement of British diplomats in bribing Saudi officials and ministers to secure arms deals. But the tribunal allowed the FCO to conceal the names of the Saudis involved, some of whom remain in government today. It ruled that there was a ‘greater sensitivity’ around information relating ‘directly to those involved in the [Saudi Arabian Government]’. It accepted the FCO’s case that the documents may ‘continue to be directly relevant to those currently in power.’ Disclosure could therefore prejudice Britain’s ‘promotion or protection’ of its interests, including arms sales.

The case followed the tribunal’s decision that the Ministry of Defence was entitled to withhold three memorandums of understanding between Britain and Saudi Arabia, relating to the huge Al Yamamah arms deal. It ruled that the prejudice to international relations and UK interests abroad that would result from disclosure outweighed the public interest in releasing the documents.

The government’s increasing reliance on Section 27 follows a succession of decisions rejecting its use of the exemptions under Sections 35 and 36 of the act. These relate respectively to the government’s decision-making process and the potential of disclosure to inhibit free and frank behind-the-scenes advice. Both the commissioner and the tribunal appear happy to see ministers and officials embarrassed but unwilling to challenge them when they play the ‘national interest’ card.