By Peter Burt*
8 December 2022
The Information Commissioner has ruled that the UK's relations with NATO trump the public's right to know how NATO values the UK's contribution to the alliance's military capabilities following a two year freedom of information battle.
My request (on behalf of NATO Watch) to release a section of NATO's Defence Planning Capability Review relating to the UK's contribution to NATO was turned down by the information watchdog even though the Commissioner accepted that there was a “clear public interest” in releasing the information. The request followed publication by the Danish government of the corresponding section of the NATO document relating to Denmark.
Every two years NATO publishes a Defence Planning Capability Review to assess the degree to which the alliance’s forces and capabilities are able to meet political guidance and ambitions. The review is conducted by the NATO International Staff with support from NATO's Strategic Commands and scrutinises and assesses allies’ defence policies and plans, including financial plans, with an emphasis on capability development and the implementation of NATO capability targets. The review includes a 'country overview' for each NATO member state, giving the candid views of NATO planners on the state of the country's military capabilities, how they contribute to NATO forces overall, and how the country might improve its capabilities.
In 2018 and 2020 the Danish Ministry of Defence published the country overview section of the annual NATO capability review on its website. This attracted considerable comment and questions from defence hawks concerned about the security implications of releasing it, but also triggered a healthy public debate about Denmark's contribution to NATO. Despite the fears of critics, publication of the documents did not undermine Danish national security or its role in NATO in any obvious or tangible way, and the documents remain online.
If Denmark can undertake such a step in the interests of openness and transparency there seemed no reason why the United Kingdom should not do likewise, and so in November 2020 NATO Watch submitted a freedom of information request to the UK Ministry of Defence asking for 'a copy of the United Kingdom Overview section from the NATO Defence Planning Capability Review 2019/2020'. Unsurprisingly the request was turned down by the Ministry of Defence at both the initial request stage and appeal stage, so the case was referred to the Information Commissioner's Office – the UK's information watchdog – for a decision.
NATO Watch argued that there was a strong public interest in allowing Parliamentarians, policy makers, and the public to have an understanding of the UK capabilities and practices which the UK's allies consider to be valuable contributions to the NATO alliance, and that this would help to ensure that money is directed appropriately in future defence budgets. If the document revealed shortcomings in the UK's defence capabilities (as it did in the Danish case), this would contribute to pressure on the government to explain and, if necessary, rectify the situation.
The Ministry of Defence had argued in refusing to release the document that the information should not be published on the grounds that it might compromise national security, defence, and the UK's international relations, and that it contained information relating to security organisations. The Information Commissioner only considered one of these aspects in determining the case - the argument that the information was exempt from release because of its possible impact on international relations.
The MOD argued that release of the document would be likely to prejudice UK relations with allies within NATO and relations with the NATO International Staff because disclosure of NATO information without NATO’s consent to do so would be been seen as “a serious breach of trust” by NATO International Staff and by NATO allies. The NATO Defence Planning Capability Review was written by NATO staff as a classified document and its release “would make relations between the UK and NATO more difficult”.
The Ministry of Defence argued that the Danish overview section of the review was originally written by NATO as an unclassified document from the start at the request of the Danish Government, but that the UK and other NATO member states took a different approach, requesting “a candid assessment of national capability at a NATO classified level that is not intended for public release”.
The Information Commissioner accepted that disclosure of the document without NATO’s permission or authorisation would be likely to impact on relations between the UK and NATO because the Danish document was specifically written with the intention that it would be placed in the public domain whereas the UK document was not.
One small positive outcome from the case was that both the Ministry of Defence and the Information Commissioner agreed with NATO Watch that there was a public interest in the release of the information in the interests of openness and transparency, as disclosure would improve the public’s understanding about the UK’s contribution to NATO and that, in the words of the Commissioner, “the public interest in disclosure of the information should not be underestimated”. However, ultimately the Commissioner felt there was greater public interest in ensuring that “the UK’s relationship with the NATO, and its reputation within the alliance, are not undermined”, and that the document should not, therefore, be released.
Regrettably, but perhaps not surprisingly, it does not appear to have occurred to the Ministry of Defence at any stage in the process to ask NATO for permission to release a copy of the document (with any sensitive details redacted out as necessary), or to follow the example of the Danish government and ask NATO to prepare an unclassified version of the UK country overview from the planning capability review for public release.
* Peter Burt is a researcher at Drone Wars UK where he works on issues relating to newly emerging military technologies. Previously he was Director of the Nuclear Information Service, undertaking research into the costs and risks of the UK’s nuclear weapons programme