Directions in relation to late disclosure from Post Office Limited
1. On 5 June 2023, the Inquiry wrote to Post Office Limited (‘the Post Office’) care of their legal representatives, Herbert Smith Freehills, to make a formal request for a witness statement under Rule 9 of the Inquiry Rules 2006. The request stipulated that an appropriate person from the Post Office provide full and detailed responses to five questions relating, in summary, to certain documents that the Post Office disclosed to the Inquiry on 30 May 2023, but which it had provided to a member of the public in response to a request under the Freedom of Information Act 2000 (‘FOIA’) on 19 May 2023. One of the documents was labelled ‘Identification Codes’ (also known as ‘Appendix 6’) and contained racist and offensive language regarding the identification of individuals subject to investigation by the Post Office. The Identification Codes document had been the subject of widespread media coverage over 27 and 28 May 2023.
2. The documents disclosed in response to the FOI Request, including the Identification Codes document, were clearly relevant to the Inquiry’s Terms of Reference and List of Issues. In my view, all of these documents ought to have been disclosed to the Inquiry in response to earlier requests the Inquiry made to the Post Office on 28 February 2022 and 15 June 2022.
3. In those circumstances, it was not clear to me why the documents, including the Identification Codes document, had been provided in response to a FOIA request, but not to the Inquiry in response to the much earlier requests made under the Inquiry Rules 2006.
4. On 14 June 2023, the Post Office responded to the formal request by filing a witness statement by Post Office Group General Counsel, Benjamin Foat, and related exhibits. On 20 June 2023, a copy of the statement was circulated to the Inquiry’s Core Participants and an announcement was published on the Inquiry website, noting that I would hold an urgent evidence session in relation to Mr Foat’s witness statement on 4 July 2023 prior to the commencement of Phase 4 hearings.
5. On 4 July 2023, I heard oral evidence from Mr Foat following questions by Counsel to the Inquiry, Jason Beer KC. In summary, I understand from that evidence that the Post Office’s failure to disclose the Identification Codes document to the Inquiry prior to 30 May 2023 was as a result of the following three issues:
a. Search terms: In broad terms, the Post Office only reviewed documents if those documents contained specific search terms. This meant that if a document did not contain a specific term or word, it was not reviewed and thereafter disclosed to the Inquiry. While I have been informed that the use of search terms may be common when undertaking large-scale document review exercises, this meant that, in this case, the Identification Codes document was not reviewed as it did not contain certain words. This is despite the Identification Codes document (and others within its ‘family’) being directly relevant to the Inquiry’s Terms of Reference and the Inquiry’s requests from February and June 2022.
b. Family documents: I understand that a document can exist in a document management system in one of two ways – as a standalone document or in a ‘family’.
Mr Foat provided an example of a family, being an email and three attachments – the email is the ‘parent’ and the attachments are the ‘children’. While only one document within a family could contain certain search terms, the family would necessarily provide a reviewer with context to that document, and family members may also be relevant in their own right (that is, even if they do not contain the specific search term(s)). In this particular instance, the Post Office reviewed the documents with a search term hit (the Guide) in isolation, even though the document had other relevant family members - including the Identification Code document. Mr Beer KC asked Mr Foat if he had investigated the content of instructions that were given to document reviewers that enabled them to discard documents within a family, on the basis that the other documents did not contain a search term. Mr Foat noted this was an ongoing question for remediation, but agreed with Mr Beer KC that this was a rather mechanistic approach to disclosure.
c. De-duplication: The Post Office de-duplicated documents when those documents were not, in fact, the same. This meant that relevant documents were not provided to reviewers and thereafter disclosed to the Inquiry. Mr Foat explained that copies of the Guide existed in duplicate or near duplicate on the database over which the Post Office had conducted their search terms. Some of the duplicate versions of the Guide had family members, including the Identification Codes document. However, those duplicate versions, and their family members, were incorrectly considered to be duplicates, and as a result of their incorrect duplicate status, they were not considered necessary to review. This meant that, in this instance, the Identification Codes document was not reviewed or thereafter disclosed to the Inquiry until after its disclosure in response to the FOIA request.
6. Mr Foat stated that, had the Post Office’s approach to search terms, family documents and de-duplication been right, the Identification Codes document would have been identified. I understand this to mean that, had the Post Office’s approach to the above three matters been right, then the Inquiry would have been provided with the Identification Codes document in response to its much earlier requests under Rule 9 of the Inquiry Rules, and prior to 30 May 2023.
7. The Inquiry has, of course, sent the Post Office a large number of requests under Rule 9 of the Inquiry Rules 2006 since the Inquiry was converted to a statutory inquiry in June 2021. The issues that Mr Foat’s evidence has uncovered are of obvious concern to me, particularly given the commencement of Phase 4 hearings. I am dissatisfied by the approach that has been taken by the Post Office; in my view, their approach demonstrates a lack of clear thinking about the disclosure obligations owed to the Inquiry with which the Post Office must comply and the means by which their obligations can be fulfilled.
8. Mr Foat repeatedly stated that the Post Office is absolutely committed to making sure that there is full disclosure to the Inquiry, that the Post Office team, and their legal and other representatives, were working hard to make sure that the Post Office provided this, and that the Post Office and its representatives would remediate any disclosure issues that come to light. Whilst neither Herbert Smith Freehill’s original covering letter of 30 May 2023 nor Mr Foat’s witness statement contained any apology for the errors in the disclosure process, Mr Foat did belatedly apologise in his oral evidence.
9. I want to make one point clear. It is not sufficient to comply with the obligation to produce or provide documents pursuant to section 21 Inquiries Act 2005 and/or rule 9 of the Inquiry Rules 2006 to simply state a desire or commitment to provide disclosure of documents that relate to a matter in question at an inquiry. As Mr Foat’s evidence has shown, document providers must put in place systems and processes to facilitate that disclosure. Responding to a request for documents or information is about more than just devising search terms – it requires a common-sense approach and, in some circumstances, an understanding of a document provider’s corporate history, key personnel and document archives, and considering documents in their full context.
10. Furthermore, as has been shown in relation to the delay to the oral evidence of Mr Jenkins, late disclosure of documents that should have been provided in response to earlier requests has the potential to jeopardise the smooth running of the Inquiry. This causes inconvenience to witnesses, to Core Participants, to the Inquiry team and to the public at large. It wastes public funds, it delays the provision of answers to those who were affected and delays the learning of lessons through the recommendations that I will in due course make.
11. Since the start of the Inquiry’s Phase 2 hearings in October 2022, I made it clear that if I reach a conclusion that there is either accidental or deliberate non-disclosure of relevant documents, I would use all powers at my disposal to obtain the documents that have not been disclosed. I made it clear that everyone should understand that proper and prompt disclosure is crucial to the success of the Inquiry.
12. In addition to this, the Terms of Reference I am to fulfil require that the Inquiry must investigate past disclosure failures by the Post Office. In those circumstances, and as noted by Mr Beer KC, while disclosure obligations fall on all document providers, the Post Office’s disclosure obligations in this Inquiry are further heightened. This makes the errors highlighted by Mr Foat’s evidence all the more inexcusable and unacceptable.
13. In light of the matters above, I make the following directions to the Post Office.
Any documents that relate to a Phase 4 witness that are disclosed as a result of the Post Office’s remediation of search terms, family documents or de-duplication issues (as the case may be) must be provided to the Inquiry as follows:
1. For all witnesses who are due to give oral evidence to the Inquiry up to and including 28 July 2023, no later than 2 clear1 working days before the date on which that witness is due to give evidence.
2. For future phase 4 witnesses, no later than 14 August 2023 (the Inquiry will shortly publish an indicative timetable).
For all documents provided as above, the Post Office must clearly identify the witness(es), request(s) and/or notice(s) to which the documents are said to relate.
Any documents that are disclosed as a result of the Post Office’s remediation of search terms, family documents or de-duplication issues (as the case may be) and otherwise respond to the Inquiry’s requests issued under Rule 9 of the Inquiry Rules or Section 21 of the Inquiries Act 2005 (as the case may be) and relate to Phase 4 must be provided to the Inquiry no later than 14 August 2023 (this does not affect any existing deadlines set by specific Rule 9 requests or related correspondence). The Post Office must clearly identify the request(s) or notice(s) to which the document is said to responsive.
I make clear that the periods identified above (in particular in respect of the first direction) may in some cases only allow the Inquiry’s legal team an opportunity to consider whether it remains possible to call the relevant witness on the date that has been fixed. Where the numbers of documents are small or of tangential relevance, it is more likely that the hearing will be able to proceed. However, the Post Office (and any other document providers) should be in no doubt that I will take any further delay caused by late disclosure of relevant documents (or a failure to provide disclosure of relevant documents) extremely seriously and I will not hesitate to continue to call those responsible to give evidence to the Inquiry to account for any failings.
Sir Wyn Williams
6 July 2023
1 - ‘clear days’ means that in computing the number of days (a) the day on which the period begins; and (b) if the end of the period is defined by reference to an event, the day on which that event occurs are not included.