Protocol on Documents

1. the holding of potentially relevant documents;
2. the provision of such documents to the Inquiry; and
3. their receipt and handling by the Inquiry.

3. 1. the Inquiry’s Protocol on Restriction Orders, Redaction, Anonymity and Special Measures;
   2. its Privacy Information Notice and Appropriate Policy Document; and
   3. the Chair’s Statement of Approach in relation to Redaction, Data Protection and Privacy and Restriction Order No.12.

4. This Protocol is not intended to cover every eventuality or procedural issue that may arise. In certain cases, the Chair may also consider that she needs to make a decision about the procedures or conduct of the Inquiry that does not accord with this Protocol, to uphold her statutory duties to act fairly and to avoid unnecessary cost.

Definitions

5. In this Protocol, the term “document” is to be interpreted widely. It means anything in which information of any description is recorded, whether in paper or electronic form. This will include, but is not limited to: statements, records, correspondence, emails (internal and external), other electronic messages (such as WhatsApps), reports, reviews, board/committee minutes, meeting/attendance notes, manuscript notes, memoranda, circulars, governing/constitutional documents, contract documents, guides/codes of conduct, policy documents/statements, articles, photographs, video and audio recordings (including CCTV footage), physical evidence, and any other tangible record of information or data.

6. “Relevant” and “potentially relevant” documents are those which, having regard to the Inquiry’s Terms of Reference, the Chair (if aware of their existence) would wish to be provided with.

7. “Material Provider” means any person, organisation or entity that has been asked to provide or has provided relevant or potentially relevant documents to the Inquiry, whether voluntarily, by request or by requirement.

Provision of Documents to the Inquiry

8. The Chair encourages anyone who might hold potentially relevant documents to contact the Inquiry as soon as possible. This can be done by phone on 020 7972 3500 (leaving a voicemail), by email at Contact@LampardInquiry.org.uk, or by post – The Lampard Inquiry, PO Box 78136, London, SW1P 9WW. Arrangements will then be made for receipt of any such documents.

9. As a general rule, the Inquiry will approach a person, organisation or entity who may have potentially relevant documents by making a request under Rule 9 of the Inquiry Rules 2006 (the Inquiry Rules). This is known as a “Rule 9 Request”.

10. Rule 9 Requests will be issued in writing by the Inquiry team on behalf of the Chair. They will be sent directly to the person, organisation or entity being asked to provide the required documentation, unless they have appointed a qualified lawyer to act on their behalf and the Chair has designated the lawyer as that person, organisation or entity’s Recognised Legal Representative (RLR). In those circumstances, the Rule 9 Request will be sent to the RLR.

11. In a Rule 9 Request, the Inquiry may ask for potentially relevant documents to be provided by a particular date. It may also ask for the person, organisation or entity to provide a written statement. Any request for a written statement will include a description of the matters or issues that should be covered. More information and guidance on this part of the process can be found in the Inquiry’s Protocol on Witness Statements, accessible here.

12. The Chair expects that any person, organisation or entity to whom a Rule 9 Request is sent will voluntarily co-operate with the Inquiry and provide all potentially relevant documentation within the specified time frame.

13. However, if a Rule 9 Request is ignored, refused, or where a response appears to the Chair to be incomplete and therefore insufficient, the Chair may exercise her powers of compulsion by issuing a notice under Section 21 of the Inquiries Act (a Section 21 Notice).

14. A Section 21 Notice could require the person, organisation or entity to whom the initial Rule 9 Request was made to:
    
    1. give evidence, either by way of a written statement and/or at hearing; and/or
    2. produce to the Inquiry potentially relevant documents in their custody or control.

15. The Chair welcomes and encourages information, documents and evidence from the family and friends of those who have died, and from patients and former patients. The Chair has confirmed that she will not exercise her powers under section 21 against any person falling into these categories, save for in exceptional circumstances. Their engagement with the Inquiry is entirely voluntary. This means that no such individual will, at any stage, be compelled to provide any documents or information to the Inquiry, to provide a written statement, or to give evidence at any Inquiry hearing. Further information on this can be found in the Inquiry’s Note on the Chair’s decision regarding Section 21 of the Inquiries Act, which can be accessed here.

16. Any person, organisation or entity receiving a Section 21 Notice may claim, pursuant to section 21(4) of the Inquiries Act, that they are unable to comply with the Notice or that it is not reasonable in all the circumstances for them to comply. Any claim of this kind should be set out in writing to the Chair as soon as possible. She will then decide whether to revoke or vary the Notice.

17. If a person, organisation or entity fails, without reasonable excuse, to comply with a Section 21 Notice issued by the Chair, they may be guilty of an offence under section 35 of the Inquiries Act.

18. In certain circumstances, such as for example where a witness has concerns regarding the disclosure to the Inquiry of particularly sensitive or special category data within a witness statement or documents exhibited to a witness statement, the witness may wish to request a Section 21 Notice. Any such requests should be made as soon as possible following the receipt of a Rule 9 Request and will be issued with the agreement of the Chair.

Instructions for Material Providers

19. Material Providers are expected to produce all documents specified by the Chair promptly, and in compliance with any deadline stated in the Request or Notice. If further potentially relevant documents, not falling within the scope of a Rule 9 Request, are identified, the existence of such documents should be disclosed to the Inquiry, together with a brief description of what the documents contain.

20. Should a person, organisation or entity require an extension of time for the provision of any document requested or required by the Inquiry, a written application should be made to the Chair as soon as possible and, in any event, before the period of time to respond (as specified in the Rule 9 Request) expires. If there is a good reason why a person, organisation or entity would not be able to comply by the deadline, the Inquiry may agree to extend the date.

21. Material Providers are expected to undertake comprehensive, thorough and rigorous searches in response to any request or requirement for the production of documents. Any organisation who is a Material Provider (this includes health care providers and other corporate entities) should also keep a contemporaneous written record of searches carried out and should be ready to provide this record to the Inquiry upon request. The Inquiry may wish to carry out checks on the disclosure exercises being completed by Material Providers, including by attending to inspect documents.

22. In certain circumstances, to be decided by the Chair, the Inquiry may ask a Material Provider to make a disclosure statement to the Inquiry. The purpose of any disclosure statement will be for a Material Provider to explain its search methodology, provide clear assurance that the Inquiry’s request has been met so far as is reasonable in all of the circumstances or explain, in greater detail, what has become of any information that cannot be produced.

23. The following standards should also be adhered to:
    
    1. All documents provided to the Inquiry must be electronic and scanned. In limited circumstances, the Inquiry will accept hard copy original documents. If an original copy is not available, then the best available copy should be provided to the Inquiry with an explanation as to why the original cannot be scanned and produced.
    2. Electronic documents should be provided in their native format (e.g. Microsoft Word, Microsoft Excel, MSG email files), with original file names and any attachments. Where possible, such documents should also be text searchable.
    3. Documents should be submitted at document level i.e. multiple documents should not be grouped into one large PDF. Similarly, a document should not be scanned as individual pages, but as a single PDF.
    4. Scanning of documents should be undertaken at a standard of 300dpi (number of dots per inch as scanned). Documents should be scanned in colour where it is critical to the legibility of the document, or where highlighting would not otherwise be seen.
    5. Scanned (PDF) images of paper should show all information on the paper, including all corners and both sides of the paper (where information is contained on two sides) and any annotations. No data should be cut off during the scanning process. If the paper that is being scanned has any attachment (e.g. a sticky paper note) or cover sheet, it should be scanned twice, both with and without the attached note.
    6. All scanned documents should be named appropriately.
    7. Where any material update or change is made to a document after its provision to the Inquiry, and the Material Provider becomes aware of this, it should promptly inform the Inquiry and provide a revised copy.

24. On each occasion that documents are provided to the Inquiry, they should be accompanied by an Exhibits List. A template Exhibits List has been published alongside this Protocol. It should be used to:
    
    1. state whether any redactions will be sought, identifying the information to be redacted and summarising the basis for seeking to redact the information;
    2. state whether any redactions have been applied for legal professional privilege or on the basis of any other legal bar to disclosure; and
    3. if certain documents have not been provided or cannot be located, state clear reasons why they have not been provided or an explanation about why they cannot be located.

25. Each Exhibits List must be signed by or under the authority of the Material Provider; a lawyer acting for the Material Provider should not be the signatory. The Inquiry can assist Material Providers who do not have legal representation to complete an Exhibits List.

26. No potential application for redaction or restriction should delay or impede the production of documents in the first instance.

Distortion, Retention and Destruction by Material Providers

27. Once potentially relevant documents have been identified, any person, organisation or entity holding those documents must take great care to ensure that all such documents are preserved in their original form.

28. By way of sole exception, legal professional privilege or another legal bar to disclosure to the Inquiry might be asserted in respect of a document or a part of a document. Where that is the case, Material Providers may wish to consider whether they should waive privilege to assist the Inquiry in its work in the public interest. Where they choose not to do so, Material Providers will need to set out in writing to the Inquiry why they believe that any legal rule prohibiting disclosure to the Inquiry applies, identifying each document or part of a document to which they say that prohibition attaches.

29. Save for in such circumstances, under section 35 of the Inquiries Act it is an offence to do anything which is intended to have the effect of:
    
    1. distorting or otherwise altering any evidence, document or other thing that is given, produced or provided to the Inquiry; or
    2. preventing any evidence, document or other thing from being given, produced or provided to the Inquiry, or to do anything which the person knows or believes is likely to have that effect.

30. It is also an offence for a person to:
    
    1. intentionally suppress or conceal a document that is, and that they know or believe to be, a relevant document; or
    2. intentionally alter or destroy such a document.

31. Holders of potentially relevant documents should take a careful approach to the handling and retention of material. Any original copies of documents provided to or by the Inquiry (whether electronic or in hard copy) should be retained by Material Providers and must not be destroyed during the course of the Inquiry, unless express permission is granted by the Chair. Any applications for permission to destroy potentially relevant documents must be made to the Chair in writing.
32. Material Providers are expected to comply with their own data retention policies after the conclusion of the Inquiry in respect of any documents or information in their possession. [Please refer to section 14 of the Inquiries Act 2005 for when an inquiry comes to an end.]
33. For more information, the Inquiry’s Prohibition on the Destruction of Documents can be accessed here.

The Handling of Documents by the Inquiry

34. Upon receiving documents from Material Providers, the Inquiry will acknowledge receipt, review accompanying Exhibits Lists, and initiate a process for secure document handling. All documents will be uploaded to the Inquiry’s secure document management platform and assigned unique identifiers for tracking and reference.

35. Any original documents provided to the Inquiry in hard copy will be scanned and uploaded to the Inquiry’s secure document management platform. Where there is no question as to the authenticity of a document, and the scan is considered sufficient by the Inquiry team, the original will be returned to the Material Provider. Where a question is raised as to either of these two issues, the document may be retained until the end of the Inquiry.

36. The Inquiry seeks to be as transparent as possible in its handling of documents: once reviewed, any document or information contained in a document may be disclosed to Core Participants or published on the Inquiry website. Documents or parts of documents provided to the Inquiry may therefore end up in the public domain.

37. However, at all stages, the Inquiry will ensure that personal and sensitive information provided to the Inquiry is carefully and appropriately handled. Any information that is personal or sensitive will only be shared with Core Participants or made public as is necessary and proportionate for the Inquiry to fulfil its Terms of Reference. For further information, the Inquiry’s Protocol on Restriction Orders, Redaction, Anonymity and Special Measures can be accessed here.

38. Any objection by Material Providers to specific documents or categories of documents being disclosed or published should be outlined at the time they are provided to the Inquiry in the Exhibits List.

39. In every case, prior to the publication of documents or information by the Inquiry, Material Providers will be given the opportunity to review and comment on any redaction(s) that have been made to the document(s) supplied.
40. All Core Participants to the Inquiry, as well as witnesses and others to whom material is disclosed, will be required to sign confidentiality undertakings. These require individuals to keep documents provided to them by the Inquiry safe and secure, and any information contained within them confidential until such time as the documents are made public by the Inquiry. Care should therefore be taken – documents should not, for example, be printed out and left in locations where they may be accessible to members of the public. Any information contained in a document that is disclosed by the Inquiry must also not be shown to, or discussed with, anyone, unless they have signed a confidentiality undertaking and permission has been granted by the Inquiry. Any information that has been provided under the Inquiry’s confidentiality undertaking and which is not made publicly accessible must continue to be treated as confidential up to and after the conclusion of the Inquiry.

41. The Inquiry will process all personal data in accordance with its obligations under the Data Protection Act 2018 and UK GDPR. In the event that this regime applies to a Material Provider, that Material Provider will be expected to comply with its own obligations when sharing material with, and receiving information and documents from, the Inquiry. Material providers should take such advice as is necessary to ensure compliance with their obligations.

42. The Inquiry is not a public authority for the purposes of the Freedom of Information Act 2000 (“FOIA”) and will not disclose material in response to requests made pursuant to the FOIA.

43. At the conclusion of the Inquiry, documents will be handled in one or more of the following ways:
    
    1. transferred to the National Archives and/or government sponsoring department;
    2. returned to the original provider(s); or
    3. disposed of under the terms of the Public Records Act 1958.

Point of Contact

44. If you have any queries about this Protocol, you can contact the Inquiry by phone on 020 7972 3500 (leaving a voicemail), by email at Contact@LampardInquiry.org.uk, or by post – The Lampard Inquiry, PO Box 78136, London, SW1P 9WW. All written correspondence should be addressed to the Solicitor to the Inquiry.

Review

45. If this Protocol requires amendment during the course of the Inquiry, an updated version will be published on the Inquiry’s website at the earliest opportunity. Any amendments will be subject to the review and approval of the Chair.