Disclosure: a spell in the limelight
The unglamorous (but essential) issue of disclosure enjoyed a spell in the limelight last week via the All-Party Parliamentary Group on Coronavirus. The APPGC heard that, with the Covid-19 Inquiry not yet formally set up, there is currently no legal duty to preserve documents relevant to the future Inquiry’s Terms of Reference (currently in draft form).
The offences under s. 35 of the Inquiries Act 2005 (‘IA 2005’), which concern (among other things) the intentional destruction, concealment or suppression of document known to be relevant to the inquiry are applicable only to acts done “during the course of an inquiry”. If there is no inquiry, there is no offence. Understandably, concerns were raised with the APPGC that documentation may already be “going missing”.
Even where these offences do not apply, any person or organisation who knowingly does what section 35 IA 2005 prohibits (even absent a live inquiry) will likely be castigated by the Inquiry (once set up), not to mention in the court of public opinion. Trying to exploit this perceived loophole in the legislation would be a very bad idea, which (one hopes) will go some way to deter the destruction of evidence.With this ‘what not to do’ out of the way, here are some steps which future Providers of Documents (‘PoDs’–whether future Core Participants or not) can do to get disclosure right, take advantage of this silence before the storm (an ideal time to collate and organise information) and avoid a panicked rush once the newly established Inquiry makes its disclosure requests:
- If not done already, place formal ‘holds’ on documentation (digital or physical) which may be relevant to the Inquiry’s Terms of Reference (not yet confirmed, but the draft provides a fair idea of what they will be). The hold should override normal document retention/destruction policies and ensure relevant documents are preserved. Do not forget about sub-contractors who may hold documents the client organisation no longer has. Those gigabytes/terabytes of storage will be costly, but not as costly as having the Chief Executive being cross-examined by Counsel to the Inquiry on why documents had been improperly shredded;
- Establish what the key document repositories are (those documenting decision-making will be particularly important), where they are, who controls them and how they can be most efficiently reviewed for relevance;
- Secure an e-disclosure platform and a review resource. Some law firms are able to stand up a review team of experienced paralegals (and a Disclosure Manager) quite quickly, but training on Inquiry-specific issues to the team will be beneficial;
- Prepare a Protocol (or similar document) to govern the review/disclosure process, which will cover matters such as search terms, relevance assessment and legal advice privilege. This is a document which benefits from counsel input and will ensure consistency across reviewers (but some Quality Assurance via sampling will often be necessary). Ensure that there is a clear process for reviewers to flag important/key documents as soon as possible;
- The Inquiry will likely want to receive documents in unredacted form, but set up its own protocol for redactions and for PoDs to make representations about sensitive matters. It is worth noting, during the PoD’s review, documents which may be particularly sensitive (for data protection, commercial sensitivity or other such reasons);
- The first disclosure request from the Inquiry may be quite wide (e.g. ‘please disclose all documents you hold which are relevant to the Terms of Reference’), followed by more focused follow-up requests. Given the public and media pressure for the Inquiry’s work to progress quickly, a deadline of 2-3 months may well be imposed on PoDs. An Inquiry Team will usually entertain requests for short extensions in respect of disclosure responses, but it is good practice to provide a properly reasoned request together with relevant information (e.g. the number of documents that need to be reviewed by the PoD);
- To lessen the review burden following receipt of the first request, the PoD may wish to liaise with the Inquiry Team to explore narrowing the initial request to identify truly relevant documents (for example with reference to key words, a data range, the level of individuals involved etc.) The Inquiry Team (which will have little time to review a huge volume of initial disclosure from numerous PoDs) will not thank a PoD for providing 100 gigabytes of e-mails deemed relevant merely because they include the word ‘Covid’;
- Keep a clear audit trail of the searches done and the disclosure process. The Inquiry Team may ask for a detailed witness statement explaining the process adopted.
Putting in the work on disclosure now and setting up the systems necessary to deal with the Inquiry’s requests when they come in will ensure organisations will not be at the receiving end of a s. 21 IA 2005 notice (to compel production of documents) and keep the Inquiry Team (reasonably) happy. It also ensures that the organisation is aware of any key documents/evidence in good time before the Inquiry hearings start in 2023 and can properly deal with them via witness evidence (a subject for another blog post!)
[Link to news item re APPGC:
click here]
