16 December 2009

Freedom of Information Act: A Kafkaesque Foray into British Bureaucracy



A Freedom of Expression Foray
by Albert Moisiu

So, what has the 'old fart' got to say this time?

With respect to the Maddie Case the term "Freedom of Expression" has been getting an extensive airing in recent weeks (November/December 2009), not least, to my mind, the McCann's seemingly distorted perspective thereof, but, putting that to one side, I was asked a while ago to write something on a sightly different, though related, venture – some might think 'adventure' – using the UK Freedom of Information Act.

While the story as written here is fairly short (for those who may be familiar with my previous epistles) volume is made up in spades with the appendices which arose during the nearly 500 days that passed during the venture.

I have not included all the documents that went back and forth between the various agencies and myself during that period, limiting this tale to only those that still give me reason to pause and consider their content. The initial summary shows 'hyper-links' to attachments.

I have also removed certain of my personal particulars, and reduced the names of the persons in the other agencies to initials because – even though they are all well known in the FOI public arena (and I have confirmed that) - I have not sought their specific permission to disclose the identities in public.

"How to tell a story: Begin at the beginning, … "

The journey began back on 11 August 2008 when I submitted an FOI request to the UK Home Office entitled "Freedom of Information Request: Press reporting gag in the case of Madeleine Beth McCann.". [1]

Some might recall the various FOIA templates that I posted on the 3A forum around that date, and this was one of them. Those people might also recall the seemingly interminable wait for an intelligible response between August and December as opposed to the monthly "Please Wait until the 'Public Interest Test' is completed."

On 28 January 2009 I received, as did many other people, the eventual response. [2]

On 31 January, I submitted a request for an Internal Review. [3]

Over the ensuing five calendar months there were promises to deliver the report of the Internal Review, followed by corresponding failures to execute those promises, prompting me, on 2 July 2009, to submit a formal complaint to the Information Commissioner's Office (ICO). [4]

Interspersed with a little more information [5], and some additional prompting from me, by 20 October 2009 the ICO had managed to elicit yet more promises for the delivery of the Internal Review [6], the first versions of which came to light on 23 and 30 October 2009. [7]

Although aghast at what I read in those missives I withheld my views at that time, not wishing to jeopardise the tenuous link with the Home Office. The following week, however, yet again having received none of the promised responses from them, when I received the ICO communication of 5 November 2009 [8] in which, while not compromising their independence, the ICO appeared to be unimpressed with handling of the entire matter by the Home Office agents, my response (7 November 2009) was unequivocal. [9]

I admit it. I had finally come to the point of losing my composure.

"… continue until you reach the end, ..."

Said reaction on my part appeared to shake the tree, with confirmation from the ICO [10] that yet another date had been given to them by the Home Office, and this time, finally, on 27 November 2009 I received the Home Office response [11] that I had fully expected to receive back in September 2008.

"… then stop."

So, why do I not stop here? Have I not received the answer that I expected?

As regards my expectation, I was not surprised by the final response because I have always held the belief that any limitations in media reporting would be due to owner/editor edict within the media operation concerned. The question posed to the Home Office was to test that belief.

As to the receipt of information, the simple answer is "Yes", but I have, in fact, received quite a bit more information than expected and this, when coupled with some additional factors in hindsight, prompts some further thought.

At the outset this was a fairly simple question, which may or may not have had some minor relevance in the Public Interest Test, but certainly it was one that should have been put to bed in a secure manner (unlike Ocean Club Apartment 5A) so that the 'adults' in the Home Office could go off to 'wine and dine' (and maybe take in a blue-film or two) on the more pressing matter of the impending MPs 'Tapas Bar' revelations later publicised via the Daily Telegraph.

Instead of settling this trivial matter quickly and quietly, in the same way as the dozen-or-so other FOI requests I had submitted to various agencies had been settled, it was allowed to become 'abducted' for some reason, or in some way, and that – he says, donning his conspiracy hat for a moment – is perplexing in itself.

Was this 'abduction' of the original question – like in Praia da Luz – a result of sheer stupidity on someone's part? Possible but unlikely, in my view.

Did the excessively flowery wording (verbose legalistic character, if you wish) of the original request cause certain panties to pad or knickers to knot, perhaps? Again, I think not.

Was it simply a lack of attention during the period of movement of ministers (McNutty and Jackboot Jacqui being the most well-publicised), along with the likely preparations being made in readiness for the Expenses' backlash? A distinct possibility, I feel, and something that might have affected many other requests for information during that same period.

Conversely, had the close-shave that had arisen from the 'FCO diplomatic e-mail' revelations that had gone all the way to the Tribunal via the ICO caused all remaining unanswered requests to be vetted multiple times over? Another distinct possibility, I feel.

Or, worst case (conspiracy-alert), was at least part of the delay, not to mention the eventual rationale provided by the Home Office on 30 October 2009, intended to convey that there was, indeed, some 'fire' emitting 'smoke' with respect to the failure of UK authorities to communicate information to the Portuguese authorities?

If such a thing were intended, and the 'fire' was barely containable within the ambit of the original request – that is, had the request been worded in a slightly different way then the existence of the 'fire' would have to have been be fully revealed – then that certainly would be food for further thought.

So, what was behind the 'defined' question?

As I intimated in my diatribe of 7 November 2009, just how did a supposedly highly intelligent and literate bunch of media-savvy political careerists manage to convert a question about a "Press reporting gag" on the British media into a question about "any restrictions that might have been placed on the sharing of information with the Portuguese authorities following a formal request for Mutual Legal Assistance (MLA) from them."

Re-reading the documents I could venture a few ideas, but they would be little more than mere points of semantics and supposition.

Alternatively, I could let enough time pass to avoid being labelled 'vexatious' and pose this question to the people concerned, but, really, in the context of the case, I feel the point is already moot and, anyway, I do not think that I could wait another 480 days for an answer.

Albert Moisiu
December 2009


Appendix 1
11 August 2008

Home Office
Direct Communications Unit
2 Marsham Street
London
SW1P 4DF


Dear Sir

Freedom of Information Request: Press reporting gag in the case of Madeleine Beth McCann.

With the current suspension of the inquiry into the disappearance of Madeleine Beth McCann, who reportedly disappeared from her bedroom in Praia da Luz, Algarve, Portugal some time between 21:00 and 22:00 on the night of 3 May 2007, and the consequent release in Portugal of the detailed papers from the inquiry case file, the grossly unbalanced reporting of the British 'media' evidenced by the failure to fairly present even the most basic facts uncovered by the joint Anglo-Portuguese Inquiry team has given rise to thoughts about there being a restriction order having been placed on the British press, specifically in respect of those persons who, while not directly or biologically related to Madeleine Beth McCann, were nevertheless directly associated with her disappearance, namely Dr David Payne and his partner, Fiona Payne; Dr Russell O'Brien and his partner, Jane Tanner; Dr Matthew Oldfield and his partner, Rachel Mampilly Oldfield.

This is a request for information, namely for any and all records or documents or extracts thereof reporting or evidencing that at any time on or after 4 May 2007 any form of limitation or restriction or injunction or moratorium over the free and fair and unfettered disclosure of any aspect whatsoever of, or any detail whatsoever of, the Inquiry into the disappearance of Madeleine Beth McCann and/or over any information pertaining to any persons directly associated with that disappearance and/or directly associated with the Inquiry, was requested, instructed and/or obtained by any person, or persons, whether employed at any level within or providing any service within the Home Office or any of its ancillary operations, including, but not limited to, the Central Office of Information.

It seeks further:
(a) the identity, or identities, of any and all the persons by whom,
(b) the date and time at which, and
(c) the means of communication through which, any such limitation or restriction or injunction or moratorium referred to above was requested, instructed and/or obtained.

On an administrative point, I request that I be afforded both an acknowledgement of receipt and a response to the above request for information in accordance with the time prescribed in Section 10 of the Freedom of Information Act 2000.

Further, I request that such acknowledgement of receipt and response be communicated and delivered to my electronic mail address given hereunder, failing which, by letter to the postal address provided below.

Yours faithfully
Albert Moisiu

Appendix 2

Our ref: MLI07/210/2104 – FOI 10041
Date: 28th January 2009

Mr Albert Moisiu
Portugal

Dear Mr Moisiu,
RE: FREEDOM OF INFORMATION ACT REQUEST
HOME OFFICE MATERIAL RELATING TO MADELEINE MCCANN

I am writing further to my correspondence on the 16th December 2008. We are now in a position to offer a full reply to your request. I would like to apologise for the length of time it has taken to respond to your request. This delay has been due to giving full and due consideration to the public interest test together with the necessity to consult with other agencies.

It is noted that your request was to essentially seek information for any and all records or extracts thereof reporting or evidencing that at any time on or after 4th May 2007 any form of limitation or restriction or injunction or moratorium over the free and fair and unfettered disclosure of any aspect whatsoever of, or any detail whatsoever of, the inquiry into the disappearance of Madeleine Beth McCann.

The request was also seeking information pertaining to any persons directly associated with that disappearance and/or directly associated with the Inquiry, was requested, instructed and/or obtained by any person(s) whether employed at any level within or providing any service within the Home Office or any of its ancillary operations, including, but not limited to, the Central Office of Information and the identities of all persons the dates and the means of communication through which such limitation or restriction was obtained.

Your request for information has been considered under the Freedom of Information Act 2000 (the Act) and we are now able to provide you with a substantive response to your request.

Section 1 of the Act places two duties on public authorities when handling requests. The first of these duties, provided at s1(1)(a) is to confirm or deny whether the information requested is actually held by that authority. The second duty is for that information to be disclosed where it has been confirmed that it exists. This is provided under s1(1)(b).

The Home Office can neither confirm nor deny that we hold information relevant to your request as our duty

under s1(1)(a) does not apply by virtue of the following provisions of the Act:
· Section 27(4) – prejudice to International Relations;
· Section 31(3) – prejudice to Law Enforcement activities; and
· Section 38(2) – endangering Health & Safety.

This letter therefore also serves as a refusal notice under s17(1) of the Act.

Furthermore, the Home Office will not comment on any of the information contained in Goncal Amaral’s book, ‘A Verdade da Mentira’ as it would potentially undermine ongoing investigations.

There are a number of sensitivities relevant to your request, given that Madeleine McCann is still missing and the investigation is still ongoing. Confirming or denying whether any information is held could undermine the investigation, prejudice international relations and could endanger the health and safety of members of the public.

We have considered public interest considerations in making our decision and we have attached these to this letter. We believe that, at this time, the public interest strongly favours neither confirming nor denying that the information you have requested is or is not held by the Home Office.

This response should not be taken as conclusive evidence that the information you have requested either does or does not exist.

If you are dissatisfied with this response you may request an independent internal review of our handling of your request by submitting your complaint within two months to the below address quoting reference CR10041

Information Rights Team
Information and Record Management Service
Home Office
4th Floor, Seacole Building
2 Marsham Street
London
SW1P 4DF

Or email: info.access@homeoffice.gsi.gov.uk

During the independent review the department’s handling of your information request will be reassessed by an official that was not involved in providing you with this response. Should you remain dissatisfied after this internal review, you will have a right of complaint to the Information Commissioner as established by section 50 of the Freedom of Information Act.

I realise that you may be disappointed with this response. However we have considered your request with great care, and the Home Office always seeks to provide as much information as it is able to.

Thank you for your interest in the Home Office.

Yours sincerely

L S
Team Leader
UK Central Authority

Public Interest Considerations

s.17 – Refusal of request
(1) A public authority which, in relation to any request for information, is to any extent relying on a claimthat any provision in part II relating to the duty to confirm or deny is relevant to the request or on a claim that information is exempt information must, within the time for complying with section1(1), give the applicant a notice which -
(a) states the fact,
(b) specifies the exemption in question, and
(c) states (if that would not otherwise be apparent) why the exemption applies.

s.27 – International Relations
(1) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice,
(a) relations between the United Kingdom and any other state,
(b) relations between the United Kingdom and any international organisation or international court
(4) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) – (a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1)

s.31 – Law Enforcement
(1) Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice-
(a) the prevention or detection of crime,
(b) the apprehension or prosecution of offenders,
(c) the administration of justice,
(4) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1)

s.38 – Health & Safety
(1) Information is exempt information if its disclosure under this Act would, or would be likely to- (a) endanger the physical or mental health of any individual, or
(b) endanger the safety of any individual.
(4) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1)

Harm and prejudice

The investigation into the disappearance of Madeleine McCann is still ongoing. There are significant unknowns in relation to her disappearance. Leicestershire Constabulary are the lead force in the UK dealing with this investigation but the principle investigation agency is Policia Judiciara (PJ) in Portugal.

We believe that significant harm to the investigation could result from either confirming or denying that we hold the information you have asked for.

Should this investigation lead to a prosecution, saying whether or not this information is or is not held by the Home Office would risk undermining the human rights of any suspect to a fair trial and the rights of a victim, particularly if the prosecution would fail due to such an announcement.

If the Home Office was to either confirm or deny that it did or did not hold any information that was gathered in the course of this investigation, it might risk compromising the conduct of this investigation.

This could ultimately prejudice the administration of justice. In any event, to confirm or deny that any such information that was or was not obtained in the course of a criminal investigation, either voluntarily or through compulsory powers, ought not to be generally disclosed, save as far as it is necessary for the purposes of establishing or defending rights in litigation.

There is consequently a strong public interest in ensuring that evidence is not contaminated for any future trial. In addition there is a strong public interest to preserve relations with the Policia Judiciara (PJ) in Portugal whilst Madeleine remains missing.

Two of the Home Office’s objectives are to support the efficient and effective delivery of justice, and to lead visible, responsive and accountable policing.

The manner in which the Home Office works to support the Police Service as a whole is one of our core business functions.

If the Home Office prejudiced such a high-profile and sensitive investigation by confirming or denying that we either do or do not hold any of the information that you have requested, we would be seen as working against the efforts of both UK and Portuguese policing authorities, undermining their determined efforts to locate Madeline McCann and her assailants. This would not be in the best interests of the public..

Any prejudicial effects to these ongoing investigations could jeopardise the health & safety, of Madeline McCann, in that it might significantly affect the chances of her being found.

There is no actual public interest served in releasing information that may jeopardise the health & safety of any individual.

There is a strong public interest in the UK maintaining the arrangements it currently enjoys with other States in matters of judicial and mutual legal cooperation in criminal and other matters.

Any act that would prejudice this investigation may discourage other States with complying with reasonable requests issued by the UK or from pursuing legitimate investigations in the UK for fear that the product of such requests or investigations may be disclosed to private citizens.

Appendix 3 to Appendix 11, as well as the electronic correspondences can be read on the PDF bellow



I grant permission to Joana Morais and/or Pamalam to publish this article on their respective Internet sites, unedited save for possible website formatting, either in whole or in part, as complete PDF file, formatted web content, or in any other way they deem fit.

All views expressed in the article and correspondence written by me are my own.
Included in the appendices are copies of correspondence which was sent or received by me by way of electronic mail and, in some cases, additional paper copies by registered mail.

All original copies are retained by me.



19 comments:

  1. I was thinking that this was interesting until I read the bit about the health and safety of Madeleine McCann.

    After that I was of the impression that this could have come straight from the pen of Clarrie or the McCanns.

    I'm left wondering just how high does this cover up go? No wonder the UK media have been giving a one sided message if they are receiving information from, and relying on, information these people.

    But if someone is getting a different message please say why.

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  2. Esta informacao devia circular tambem em portugues e ser enviada a toda a imprensa portuguesa, para ver quem tinha a coragem de pegar no assunto e insistir formalmente e visivelmente com o Home Office. TALVEZ SE COMECASSE A ASSUMIR O MENINO EM QUE SE TRANSFORMOU ESTE CASO. Todos sabem que o desaparecimento de Maddie nao apareceu por geracao espontanea, tem na base quem conhecia bem a crianca e com ela se relacionava assiduamente. O RAPTO E A MAIS IMPROVAVEL DAS HIPOTESES, mas o home office nao esta interessado em desvendar o veu e por isso opta por jogar ao esconde-esconde. NESTE JOGO DE ESCONDIDAS, NUNCA TANTA COISA FICOU A MOSTRA: HA, entre os amigos dos Mccann, gente que tambem esta envolvida em algo que a ser revelado podia por em causa a saude e seguranca( sgundo o Home Office) dos envolvidos. UMA PERGUNTA FICA NO AR? O que podera ser tao hediondo, que geraria um comportamento agressivo e de revolta por parte do publico? EU so consigo obter uma resposta: MADELEINE VITIMA DE PEDOFILIA DENTRO DO CIRCULO RESTRICTO DOS PAIS E AMIGOS!!! E asim vai o mundo, onde gentinha gere os destinos de milhoes de criancas com tanta leviandade que optam por proteger pedofilos em vez de fazer justica as vitimas. MERECEM A CONFIANCA DO ELEITORADO E CADA CENTIMO DOS NOSSOS IMPOSTOS, DESPERDICADO NOS SEUS SALRIOS E LUXURIA. Por isso, cada vez mais ficamos em casa a engrossar a ABSTENCAO e o dia das eleicoes se transforma no espelho da vergonha de muitas democracias.

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  3. Just like many abuse and use "o segredo da justica" for their own means in Portugal, England's Home Office has its own laws to hide behind. I chuckle when I read that they are afraid of damaging international relations. If there was such a concern in England shouldn't someone have already stood up in parliament in response to the xenophobic articles that were written in the British press?

    Whose mental or physical stability would be at risk?
    The child is dead, so we know she won't be affected, are they worried about the mental state of the parents if the truth gets out?

    The Portuguese police have supposedly archived the case, the English police are supposedly not interested, so why does the "Home Office" refer to an ongoing investigation?

    Roadblocks everywhere unbelievable.

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  4. Brilliant article - thank you Joana.

    Thank you Albert Moisiu for your efforts in trying to get some sense out of our Home Office regarding justice for a three year old child. It speaks volumes that our media here have not had the guts to do the same. The only other person who can compare with your fortitude is Tony Bennet, and he has been well and truly shut up! You were met with the usual obfuscation from a faceless one paid handsomely by the British Taxpayer. How they can make some outlandish excuse about releasing information putting in peril relations between Portugal and Britain, is beyond me, bearing in mind we have been allies for donkeys years. One wonders who is trying to prevent the truth coming out, and do the parents want the enigma of their daughter's disappearance solved or not?

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  5. Ongoing investigation? What happened to the bag found near Faro airport with a shower curtain, adult and child's clothing and a moderate-3 on scale of 8- match to MMc. The MC's thought it was linked at the time, but denied the stained blue fleece was anything to do with them.. There is a passing reference to it in PJ files, between Teresa Almeida and Interpol.

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  6. Isnt it a bit late to think about Madeleine"s safety and well being?
    What about the twins????? x(
    Yes,Guerra,I agree: if the Portuguese police and the UK police are not interested....why is the Home Office talking about "an ungoing investigation"? What the hell is going on?
    We must continue asking for the re oepening of the case,especially if Madeleine"s safety is at risk....what an awful lot of bollocks,por dios!!!!

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  7. Apertem com o Padre, que ele é humano e tem muito a perder. BRING THE PRIEST!

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  8. Has there ever been such complete secrecy about anything ever before? Someone somewhere apart from the main actors must know the truth of all this, so why hasn't it leaked out? Even Tony Blair, with all the D notices and injunctions available to him, was unable to control the internet from leaking information surrounding his daughter a few years ago, so what is it about this twopenny-halfpenny pair of run of the mill doctors that enables them to dictate to the entire world what they can and cannot know? And why are they all still able to practise as doctors - are there not new rules in Britain about people being barred from working with chidlren and vulnerable adults if the slightest whiff of suspicion has ever been attached to them?

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  9. Perhaps guerra, they are referring to the so called 'investigation' by the McCanns. The McCanns are managing to confuse everybody as they appear to have taken over the investigating themselves.

    They might be getting their information from Clarrie who has been moving in high echelons for a long time.

    If there is an official ongoing investigation, then why is Brown agreeing to see the McCanns on any level 'in order that they can explain their innocence'.

    What does the man think he is doing, there should be no interference from the executive at all, yet I was listening not long ago to an account of an incident where a Law Lord walked out on some of Brown's men who were trying to sway a judicial decision.

    That's New Labour for you. They either don't know or don't care for the rules.

    Did the Blairs or Browns have to be having little chats with the McCanns anyway if they didn't already know these people?

    It is a criminal case for goodness sake. So how many criminal cases are there where they go out of their way to contact the people involved directly? If they were to do that with every case they would be running round in small circes, there are so many criminal cases.

    Why are the McCanns so special?

    Did their offer of helping the McCanns in any way they can, as was said to the McCanns, extend to the request from the McCanns to get the Police Chief on the case removed because they didn't like the way he was not conducting the case as they wanted it conducted?

    This should be made public.

    The whole thing stinks.

    How about the Blairs and Browns having sent a telegram like the Queen does to offer condolences, without all the up close and personal touch?

    Now they wont give a direct answer to anything concerning the McCann case.

    Nobody in authority in UK is going to stick their neck out and rock the boat until Portugal reopens the case and focuses back on the parents.

    Then the gagged UK media will let rip, and the political pals of the McCanns will be backpeddling.

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  10. Hang on a minute, Gerry McCann said they were the only people searching for Madeleine, the file is shelved in Portugal, the Leic. police say it's not investigating anymore, so exactly who is this official force that's investigating? the words BRUSH, UNDER AND CARPET spring to mind, or NOWT TO DO WITH US GOV. or more likely SOD OFF.

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  11. Why did it take so long for an answer?

    Perhaps they couldn't get hold of Clarrie.

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  12. A vast cloud of obfuscation emitted from the nether regions of the Governmental bureaucracy.

    There is an imperative here and it is to keep teh public ignorat of Gordon Brown's involvement in the early stages as Chancellor of the Exchequer.

    So of course they won't give anything.

    I've read this in a rush. It sounds as though Albert hasn't lodged an appeal with the Information Commissioner - might well be worth doing that.

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  13. This is any day more like a KAFKA novel...the problem is that it is real, and authoeities make it in porpose.

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  14. Perhaps the questions they need to answer is what is the relationship between Brown and the McCanns, and can we have a list of all the communications there has been between these parties or their representatives.

    Also, has there been any form of intervention or request made by the UK Government to Portugal, (made personally by Gordon Brown, or his representative), on behalf of the McCanns.

    If so, what is the content of that request and what was the result.

    Even if they didn't wish to answer, at least they would know that questions are being asked.

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  15. Anon at 5

    Perhaps that's their 'stand alone' evidence.

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  16. Dearest Moisiu,

    It's beyond me how anyone in their right mind could equate "British press gag" with "restrictions on sharing of information with Portuguese authorites following a request for Mutual Legal Assistance"...!

    But I'll also say that the fact that such a connection could have been made and persisted with for over a year gives every reason to consider that old adage "Where There Is Smoke There Is Fire".

    Hats off to you for your perseverance and for bringing this matter to our attention

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  17. Well at least the team leader said the search is still ongoing. Perhaps the team leader should let the duo know about it.

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  18. anyone who thinks they can get a question answered that the establishment doesnt like answering are wasting their time

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  19. Perhaps the most telling aspect of this is that the Home Office would not say whether or not there were, "restrictions on sharing of information with Portuguese authorites following a request for Mutual Legal Assistance..." Draw your own conclusions. Was this a civil servant's clever way of drawing your attention to the fact that such a restriction is what really happened, and the biased Press reporting is really only the result of editors' fears of legal action.

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