'Cyphers and Secret Documents: Safe Custody Reports and Handing Over Certificates for Secret Documents' [‎87r] (178/523)

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further principle which has been adopted in certain cases, namely, that it is
not desirable to produce either official documents or copies thereof or to
permit their inspection, except in the course of legal proceedings actually
instituted (see Annex IV, Cases Nos. 1-3). The argument here is that the
obligation (except where the public interest forbids it) to produce or permit
the inspection of documents, or copies of documents, derives solely from the
duty of furthering the ends of justice, a question which normally can arise
only when legal proceedings have actually been started. This principle is,
^ however, it is thought, too widely stated, and does not accord with actual practice,
at any rate as regards permitting inspection of documents or supplying copies of
them. The latter question being entirely within the discretion of the Secretary
of State (see paragraph 16 (1) below), everything depends on the nature and
importance of the documents. In the case of certain documents it is the practice
to allow inspection by or to furnish copies of them to any person who shows
reasonable grounds for wanting to see them. In the case of more important
documents it may well be desirable to withhold copies or refuse permission to
^inspect except where litigation has been started. Even in such cases, however
(see below, paragraph 17), it may be possible and desirable, while withholding
the document, to furnish information as to its contents before proceedings have
actually been commenced.
(B) Cases in which Privilege may be Claimed in the Public Interest.
6. The question what are the documents for which privilege can properly
^ be claimed is not one to which any definite general answer can be given. It is a
question of fact depending on the nature of the document and the circumstances
of the case, and each request or demand for production must be treated on its
merits. Nevertheless, certain general principles may be noticed :—
(1) As already indicated (paragraph 4) the mere fact that documents are
official or confidential is not a ground for withholding them, at any rate once a
subpoena for their production in court has been issued.( 7 ) For a further discussion
of this see Annex V, paragraph 4. It has been stated that the foundation of the
Crown's privilege " is that the information cannot be disclosed without injury
to the public interest and not that the documents are confidential or official, which
alone is no reason for their non-production."( 8 )
(2) There are, broadly speaking, three classes of official documents
involved :—
(i) Documents the very existence (let alone the contents) of which it would
be injurious to the public interest to disclose. An example is afforded by the secret
treaties of the pre-war period. All treaties have now to be registered with the
^Secretariat of the League of Nations, but other documents of this character may
exist. Ex hypothesis however, no question in regard to this class of document
can arise in private litigation since the existence of the document is unknown to
the parties.
(ii) Documents the contents {though not the existence) of which it would be
contrary to the public interest to disclose. Whether a given document is of this
character can only be decided in the light of all the circumstances of the case.
(iii) Documents which, as a class, are privileged from production, even
though the actual contents of the particular document are innocuous. Documents
of this character are of the following kinds :—
[a) In the first place, with the exception of documents of a purely formal
character or written expressly for publication, they include official minutes
(Cabinet or departmental); reports or despatches written by officials in the course
( 7 ) It may be otherwise where it is a question of allowing inspection, or supplying copies, of
documents to private litigants (see paragraph 16 (2) below). The position may also be different in
certain cases regarding correspondence with other Governments (see below, paragraphs 6 (2) (iii) (b)
and 13).
( 8 ) Per Swinfen Eady L.J.. in Asiatic Petroleum Company v. Anglo-Persian Oil Company
(1916, l.K.B. 822 at p. 830); and see also Smith v. the East India Company (1841, 1 Ph. 50).
Private persons who have in their possession documents the disclosure of which would be contrarv
to the public interest, may, of course, also claim privilege for them, and may be instructed to do
so by a Government Department; the Crown can apply independently to the court if a private
party fails to claim privilege for them (see below, paragraph 11). The most authoritative judicial
statement is now to be found in Duncan v. Cammell Laird and Co. (see Annex VI).
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