If any government authority knows it will always be able to find absolute or qualified statutory exemptions, and there are 23 of them, to refuse freedom of information requests, surely the FOI system is not fit for purpose.
That has been the view of longstanding FOI author Matt Burgess.
It has also been the experience of journalists and publishers since the UK’s Freedom of Information 2000 legislation came into force in 2005.
State information sought will only come your way if there is willingness to release it.
There is a growing consensus that millions of pounds, thousands of reviews, appeals and tribunal hearings are wasted fighting it.
This damages the public interest, democracy and a society and nation’s understanding of itself.
In the last few months I’ve been trying to do what a local weekly newspaper in Chelsea would have been doing if it had not shut down and ceased publication in 1997.
The West London Observer and Chelsea News was the local paper of my childhood. Its offices were in the middle of the King’s Road, not far from Mary Quant’s iconic boutique Bazarre. But both are long gone.
Chelsea lost its own Borough Council in 1963 and has actually been nearly depleted by fifty per cent of the mixed social population it had during my childhood.
I was brought up in a rent protected flat next to a toilet factory- also long gone and all redeveloped for luxury housing.
It doesn’t even have a public facing police station any more- sold off and flattened for a development of luxury apartments.
My home had been the site of a Luftwaffe parachute mine bombing during the Blitz.
In the early hours of Friday 18th April 1941, 16 year old Emma Chandler was fighting for her life in the smouldering wreckage.
Her father had died from a heart attack only a few months before. Her mother, uncle and aunt were killed in what had been 4 Old Church Street. Only her 92 year old grandfather had survived, but he would die in a nursing home two years later.
Comforting Emma and administering morphine to her was a hero of Chelsea- Dr Richard Castillo from Malta.
Dr Castillo was Chelsea’s most well-known and much loved GP. During the Blitz he was usually first on the scene of bombings in a mobile emergency medical unit operating out of St Stephen’s Hospital in the Fulham Road.
Dr Castillo could not save Emma, who died from her injuries. He had also lost his first wife and son when a high explosive bomb destroyed his family home in nearby Bramerton Street on 9th September 1940.
His 14 year old daughter, Mildred, did survive being buried in the wreckage for five days. Her remarkable rescue inspired King George VI to inaugurate the George Cross and medal awards for bravery away from the Front Line.
Dr Castillo remarried and had another daughter.
By the late 1950s he employed an apparent WW2 refugee from Czechoslovakia, Dr Ivan Weisz who then left to set up a rival practice and began poaching Dr Castillo’s patients by denigrating him.
Within weeks of complaining about Weisz in 1961, Dr Castillo, now 72, was lured to a dark alleyway on the Battersea side of the Albert Bridge by a false emergency call, and stabbed to death.
Weisz was a prime suspect according to briefings most likely from detectives to national newspapers.
It would appear his real name was ‘Major Ivan Federovsky’ and he was a defector from the Soviet Union having served during the war in the Red Army’s medical corps.
He was linked to another unsolved stabbing murder of Polish emigrée and concentration camp survivor Countess Teresa Łubieńska at Gloucester Road Underground station in 1957.
Although struck off by the General Medical Council, Weisz later resumed practice as a GP in Hackney, London and Brighton. He died in 1980 and had never been arrested or charged with Dr Castillo’s murder.
So who did kill what Chelsea’s local weekly newspaper described as ‘one of the gentlest and most widely loved men in Chelsea, the last man in the eyes of his hundreds of patients and friends to have met his death by violent murder’?
63 years later there are four Metropolitan Police files at the National Archives which could throw some light on the unsolved murder of Dr Castillo. An FOI request that they should be opened in the public interest has been rejected.
The block is on the basis of three qualified exemptions: that doing so would likely prejudice the apprehension or prosecution of offenders; would likely endanger the physical or mental health of any individual, and contains personal information about a ‘third party’ and by revealing it would break the terms of Data Protection Legislation.
I have challenged these arguments through an internal review. I’ve explained that since the offence took place 63 years ago, and the main suspect is long deceased, there is less likelihood on the basis of probability of any other potential suspect being alive. Were they to have been 20 years old at the time of the crime, they would now be 83 years of age.
The proportion of the inner London and outer London population in 2021 aged between 80 and 84 was around 1.5%.
Only 1.5% of the population of inner London and outer London in the youngest age range that criminologically could have committed the crime is now alive.
There is no likelihood of any suspect being apprehended or prosecuted.
The same point applies to any personal information about third parties. Equally if any information residing in the files remains sensitive and requires protection, there is still recourse to redaction.
Freedom of expression requires the maximum release of public interest information.
I’ve also argued that we need to know if the Metropolitan Police are to carry out a cold case review and reinvestigate Dr Castillo’s murder.
I fear this is the beginning of another long journey of forlorn appeals to the Information Commissioner, the First Tier Tribunal, Upper Tribunal and then what can only be described as FOI exhaustion, censorship and yet another abuse of the state’s monopoly control of the country’s archives.
The struggle to gain access to Metropolitan Police files for a public interest murder case from this time is very similar to that being experienced by the family of Kelso Cochran, the carpenter from Antigua who was the victim of a fatal stabbing during a Parliamentary by-election in North Kensington in 1959.
They have been demanding access to the police file(s) on his unsolved killing. Notting Hill’s Black community believed he was the victim of a racially motivated killing.
Again the Met Police file on the unsolved murder case has been transferred to the National Archives but it will remain closed from public view until 2054.
The BBC reported ‘Far-right groups had become active in the area, including the Union Movement of Sir Oswald Mosley. In spring 1959, another group, the White Defence League, had set up an office in the heart of Notting Hill, saying it would “campaign for white interests.”‘
Kelso Cochran was attacked and stabbed in Southam Street late evening on 16th May 1959 and was declared dead at St Charles’ Hospital at 1 a.m. the following moning.
A BBC R4 documentary, presented by the reporter Sancha Berg, on the case was broadcast 23rd October 2023 and can be heard on BBC Sounds.
It asked the question: ‘Why is one of Britain’s first post-war racist killings still unsolved? Kelso Cochrane’s family prepare for legal action to open the 1950s police files.’
Sancha Berg’s FOI request in 2020 for the Met Police files received similar reasons for rejection as offered in relation to my application for access to the files into the murder of Dr Richard Castillo.
These included the potential emotional distress to surviving family, identifying third parties and undermining any continuing or resumed police investigation.
But as in the Kelso Cochran case these are not likely risks.
I would argue that neither the National Archives, nor the Metropolitan Police can provide actual evidence that there is a likelihood of such harm being created.
This article was first published in the Spring edition of the The Journal published by the Chartered Institute of Journalists in April/May 2024.
Update Monday 15th July 2024
A BBC news report headlined ‘Police knew murder suspect intended to kill a black man’ by Sanchia Berg on Saturday 13th July 2024 indicates that the similar public interest case of Kelso Cochrane from this time has resulted in the release of a Metropolitan Police file at the National Archives, access to which had been previously declared exempt under FOIA for similar reasons. See: https://www.bbc.co.uk/news/articles/c2q0x76e4ppo
The following extracts from the BBC report appear to be relevant:-
‘For years, requests to release the file were rejected but members of Cochrane’s family obtained it through a Freedom of Information request.’
[…]
‘Both prime suspects – Breagan and Digby – are now dead, along with many of the witnesses.
Yet for decades the Metropolitan Police said the case was still open. So even though the files had been transferred to the National Archives, they could not be released because information might prejudice the “detection of crime”, under Section 31 of the Freedom of Information Act.
Over the years many people have tried to get the files open – including me. But the Kelso Cochrane family, with expert legal support, assembled a comprehensive Freedom of Information application. When it was turned down, they appealed and won.’
[…]
‘The police file is being released in sections, as some redactions are being made for data protection reasons. There are several more tranches to come.’
On Monday 15th July 2024 the ICO senior case worker assigned to deal with my FOI complaint, Mr Roger Cawthorne, issued a decision notice supporting the original decision by the National Archives to refuse access to the files.
The formal decision notice has been added to the sequence of decisions below.
-o-
Update Tuesday 24th September 2024
Despite putting in the papers for a First Tier Tribunal (Information Rights) appeal, it became apparent when receiving the legal argument reply of the Information Commissioner, in my opinion, there was no reasonable prospect of a successful appeal.
The ICO outlined High Court authorities which are binding on the lower tribunal system undermining and countering my interpretation of the statutory construction of the Freedom of Information Act’s language ‘would be likely to.’
Consequently, I was not confident I would be able to persuade the FTT Tribunal that the risks cited as justifying keeping the files closed, namely undermining any continuing police investigation, adversely affecting the mental health of anyone, and breaching the privacy of third parties did not reach the threshold required.
This is despite the passage of 63 years since Dr Castillo’s murder.
The High Court authorities challenge the notion that ‘would be likely to’ means ‘more likely than not’ and/or ‘reasonably probable.’
It seemed sensible to withdraw the appeal to the First Tier Tribunal.
This means the four Metropolitan Police files at the National Archives will remain closed to public access until and unless both public authorities decide otherwise, or if a future FOI request is more successful than previous ones.
I am very sorry I have not been able to make any further progress with this.
-o-
I have embedded the sequence of FOI communications, applications and appeals below. As of Thursday 9th May 2024, I have lodged an appeal to the Office of the Information Commissioner which has assigned a case officer to investigate.
Original FOI request to the National Archives. 27th June 2023.
Further communications on the FOI request from the National Archives.
Rejection of the FOI request for the opening and access to the files 4th December 2023.
Application for an internal review of their rejection of the FOI request 9th January 2024.
Rejection of the Internal Review application 22nd March 2024.
Confirmation from the Office of the Information Commissioner that the ICO has assigned a case office and my appeal against the rejections of my FOI request by the National Archives is under investigation. 24th April 2024.
Decision Notice by ICO Monday 15th July 2024. The ICO senior case-worker, Mr Roger Cawthorne, ruled that all the qualified exemptions under FOIA still apply and are not outweighed by the public interest in being made available.
-o-
An appeal was submitted to the First Tier Tribunal 11th August 2024
This was withdrawn 24th September 2024 after the legal response of the Information Commissioner indicated that the appeal was not likely to be successful.
There are now High Court authorities binding on the Tribunal system countering the interpretation of the legal constructon of Freedom of Information Act’s phrase ‘would be likely to’ as meaning ‘more likely than not’ or ‘reasonably probable.’
-o-
The Chelsea Blitz: Chelsea at war between 1939 and 1945 by Tim Crook is coming soon with publication by Kultura Press in 2026.
The book will contain in narrative form all of the postings on Chelsea Blitz history posted and in continuing development in Chelsea History and Studies. Publication is by popular demand from people and online readers wanting to have a book form of this remarkable story of the people’s history of Chelsea during these dramatic years.
It is expected to be the most comprehensive history of Chelsea during the Second World War years to date.
The online postings will remain on open access though with all rights reserved.
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Special thanks to Karen White and Chris Pain whose families lived in Chelsea during World War Two, and Malachy John McCauley, also brought up in Chelsea, who have very kindly encouraged and assisted my research. Special thanks to Marja Giejgo for editorial assistance. Research and archive facilities from Royal Borough of Kensington and Chelsea Council library services, The Imperial War Museum and National Archives at Kew.
If you would like to protect the history and heritage of Chelsea do consider applying to be a member of The Chelsea Society which ‘was founded in 1927 to protect the interests of all who live and work here, and to preserve and enhance the unique character of Chelsea for the public benefit.‘
I am also a great believer in the importance of local libraries for preserving the memory of community and local history. Royal Kensington and Chelsea Borough Council library services were my refuge and temples of learning when I was brought up in Chelsea. They continue to provide outstanding lending and archive services, have been invaluable in my continuing research and writing about the people of Chelsea. I give tribute to all who work in them, use them and support them.
Congratulations to The Chelsea Citizen, a dynamic new hyper-local newspaper launching in the spring 2025. Founder & Editor Rob McGibbon, Chelsea resident for 30 years and 40 years a respected and campaigning journalist. This is a significant and important development in the history of newspapers and journalism in Chelsea. Whole-hearted support from Chelsea History and Studies. Sign up for the Chelsea Citizen Newsletter.
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I think your article on who killed Doctor Castillo, who was my doctor when a child, makes it quite clear who the guilty party was and the motive.
Regarding the murder of Cochran, there was no evidence or genuine suspicion that Oswald Mosley’s Union Movement had anything to do with it. Indeed Mosley said at the time that he began campaigning in North Ken at the time to give locals the opportunity to settle their grievances by the ballot box and not by further violence. True to his word Mosley stood as prospective MP for the area at the next election but was not elected. I once spoke to members of his Movement who claimed that they saw ballot boxes from that election lying under water in the Thames. But of course if you don’t like someone you’re willing to believe anything bad about them.
Dear Jeff, Many thanks for your interesting reply. Most appreciated. Sincerely and respectfully, Tim Crook.
Just to give you some idea about government departments strange secrecy about opening some files: a few years ago I applied to MI5 and the Home Office for the closed file on Commander Charles Hudson to be opened: he was detained in 1940 without charge or trial under Defence Regulation 18B. He remained in prison for several years and died in 1948. They refused to open it even though I sent them Hudson’s death certificate which they at first asked for. I can’t imagine why they wouldn’t open Hudson’s file just like we can’t imagine why Castillo’s file hasn’t been opened.
For many years I worked in the archive at the National Archives where all the historic Metropolitan Police, Special Branch, Home Office and MI5 files were kept. Many of the files in the archives are closed files but Hudson’s was not among them: either kept in the ‘Cage’ which we did not have access to or retained by the department of origin, no doubt along with Doctor Castillo’s!
Dear Jeff, Fascinating message. Many thanks for this. So much is kept secret. When they eventually open the doors to these chambers, they will probably find the papers have disintegrated or been eaten by rodents. Sincerely and respectfully, Tim Crook.