Key takeaways
Understand your disclosure obligations early
Clear knowledge avoids criticism and legal risk.
Section 21 notices carry serious consequences
Non-compliance can lead to criminal liability.
Rule 9 requests require careful attention
Provide accurate statements and supporting documents promptly.
Disclosure to a public inquiry
Public inquiries will clearly require the disclosure of a whole raft of documentation from individuals and organisations. It is important for those involved, either on the sidelines or directly, to clearly understand their obligations to produce documents to try and avoid any criticism.
There are two main ways for an inquiry to request disclosure from an individual or organisation:
Section 21 Notice, or a
Rule 9 Request as part of a request for a witness statement.
Section 21 of the Inquiries Act 2005
Section 21 outlines the powers the Chair holds to compel the provision of documents.
The legal test states that the Chair of an inquiry may, by notice, require a person attend at a time and place stated in the notice:
To give evidence;
To produce any documents in their custody or under their control; or
To produce any other thing in their custody or under their control for inspection, examination or testing by or on behalf of the inquiry panel.
Failure to comply with a Section 21 Notice without reasonable excuse, distorting or altering the evidence or intentionally supressing or concealing a document is a criminal offence under Section 35 of the Inquiries Act 2005.
To disclose or not to disclose?
Like with anything in law, there are exceptions:
Where unable to do so, i.e. does not hold the document (however, it is always helpful to tell the inquiry who may hold the document, if known); or
Where it is unreasonable to do so, i.e. the material is unlikely to assist the inquiry or time difficulties.
Section 22 of the Inquiries Act 2005 also provides exceptions to the need to disclose documents if they are legally privileged although legal privilege can be waived in exceptional circumstances.
An inquiry cannot compel the production of documents that fall outside the scope of its Terms of Reference.
Therefore, an individual or organisation must carefully review the material held to determine whether it needs to be disclosed to the inquiry.
Rule 9 Requests
The Chair, or the inquiry legal team of behalf of the Chair, will write to individuals or organisations requesting disclosure under Rule 9 of the Inquiry Rule 2006.
Rule 9 sets out that:
The inquiry panel must send a written request for a written statement to any person from whom the inquiry panel proposes to take evidence.
The inquiry panel must send a written request to any person that it wishes to produce any document or any other thing.
The inquiry panel may make a written request for further evidence, being either a written statement or oral evidence.
Any request for a written statement must include a description of the matters or issues to be covered in the statement.
A Rule 9 Request is a less formal step to the production of documents as it does not have the power to compel documents.
Responding to a request
If it is suspected or as soon as a public inquiry is announced where an individual or organisation may hold relevant material, steps should be taken to ensure that the relevant material is preserved. Communications should be sent to individuals to tell them to retain hardcopy materials such as handwritten notes and to ensure emails or electronic documents are not deleted.
Redactions
inquiries typically request documents are provided without redactions, but rest assured, before an inquiry shares the material provided with other Core Participants a Material Provider Review process will be undertaken. In first instance, the inquiry will review documents provided and make redactions where relevant and then send them to the individual or organisation who provided them for their review and input.
Each inquiry will produce its own redaction protocol. However, inquiries will typically redact personal information such as personal phone numbers and email addresses together with wet signatures.
Key takeaways
Operating a proper disclosure regime which identifies and preserves key material is crucial. It is important to comply with a notice for disclosure to ensure an individual or organisations obligation is discharged and no criminal offences are committed. Whilst the disclosure process can seem like a big task, it is extremely helpful as it inadvertently makes an individual or organisation aware of the material held and its exposure and role within the public inquiry.
If your organisation (and your staff) or you are asked to assist with a public inquiry and would like support with the disclosure process, please get in touch with our specialist lawyers.
