The First Tier Tribunal (Information Rights) has been considering international relations in Campaign Against Arms Trade v Information Commissioner and Ministry of Defence, EA/2011/0109.

The Campaign Against Arms Trade contacted The National Archive by email on 22 May 2009 to request access to files held under reference nos. DEFE68/133 and DEFE68/136. File 133 was entitled or described as relating to the “[MOD]: Central Staff: Registered Files and Branch Folders: sale of arms to Saudi Arabia”. The file was said to be made up predominantly of “telegrams, memos and general correspondence to deal with the negotiations which took place during 1971/72 regarding the Saudi Arabian Air Defence Program (SADAP)”. File 136 was stated as dealing with the follow-up to the Saudi decision not to renew a contract for the training and maintenance of aircraft operated by the Royal Saudi Air Force with the British firm, Airwork, but to give it to the Pakistani Air Force instead.

The National Archive released the files with redactions and invoked section 27(1) and section 27(2) of the Freedom of Information Act 2000 (FOIA).  Section 27(1) provides that “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, (c) the interests of the United Kingdom abroad, or (d) the promotion or protection by the United Kingdom of its interests abroad.” The MoD relied on (a), (c) and (d) of section 27(1). They also relied section 27(2), which provides that  “Information is also exempt information if it is confidential information obtained from a State other than the United Kingdom or from an international organisation or international court”. Both of these are qualified exemptions.

The Information Commissioner found that the exemptions in sections 27(1)(a), (c) and (d) and also section 27(2) were engaged. Having considered the balance of the public interest, he ordered limited disclosure of the previously redacted material. The appellant did not challenge this decision with respect to section 27(2) and therefore the Tribunal’s decision is only concerned with section 27(1).

The Tribunal considered the decision of Gilby v Information Commissioner and Foreign & Commonwealth Office (EA/2007/0071, 0078 and 0079).  The Tribunal commented that it was not bound by Gilby but that it was following the same general approach: “If corrupt activities on the part of UK officials are evident from the papers, as defined in paragraph 59 of the Gilby decision, there is a strong public interest in disclosure“. However, it had “real difficulty in applying a workable and justifiable approach to partial disclosure of documents through redaction“.

The Tribunal concluded that section 27(1) was engaged and that the Commissioner had properly applied the public interest considerations. It rejected the argument that, given the level and extent of disclosure in the wake of the Gilby decision and indeed in another context, disclosure of much although not all of the requested information would not necessarily lead to an unfavourable reaction on the part of Saudi Arabia.

Interestingly, the Tribunal commented on its approach where the parties have agreed to an appeal being determined on the papers without a hearing. Where the parties so consent, the Tribunal “is firmly of the view that it must therefore approach this appeal with a proper sense of proportion and also with a due sense and degree of proportionality. The costs which would be attendant on a more protracted exercise means that a minute dissection of what is a substantial body of information cannot properly be justified at least in the present case and the Tribunal so finds“. The parties should bear this comment in mind, when deciding whether or not to request an oral hearing of an appeal.