The Tribunal has considered the scope of the absolute exemption in section 23 FOIA, where information relates to one of a number of specified security bodies (Dowling v Information Commissioner and the Police Service for Northern Ireland, EA/2011/ 0118).

The requester, a journalist, asked the Police Service for Northern Ireland to provide him with a copy of a report known as Stevens III. The summary of this report by Mr John Stevens (as he then was) had been published in 2003 and recorded that he had found “collusion between the RUC and loyalist groups, whereby RUC agents were allowed to engage in terrorist attacks, indeed murder, evidence of such attacks was mishandled by investigators, important intelligence was suppressed and warnings of threatened attacks were provided to Catholic targets much less frequently than to Loyalist. Agents were allowed to operate beyond any control. Sir John concluded that his investigations had been subject to widespread obstruction both by RUC and army personnel, even involving arson. Lives, including the lives of Finucane and Lambert, could have been saved and serious crimes prosecuted to conviction but for such disgraceful misconduct” (judgment at [8]). The full report had not been published due to security concerns.

The Police Service for Northern Ireland refused the request, relying on a number of exemptions (including the absolute exemption in section 23). The issue for the Tribunal was the meaning of “relates to” in section 23. It found that the section 23 exemption “has nothing to do with any direct damage to national security (see s.24). It expressly protects any direct or indirect security source of requested information but goes much further” (judgment at [18]). “Information describing a [specified security body] or its activities is clearly covered but “relates to” plainly extends beyond that” (judgment at [19]). It concluded that “any significant connection between such a body and such information is caught” (judgment at [20]).

Interestingly, the Tribunal commented that “As the appellant observes in his grounds and as has been said in Parliament, it is difficult to conceive of more serious charges made against organs of the state than those contained in the published Stevens III” (judgment at [8]) … “Whilst the personality and motives of a requester under FOIA are immaterial, it is hard to imagine a subject in which the Irish public, hence Irish journalists, could have a greater legitimate interest than the full content of Stevens III, recording, as it does, the conduct of certain elements of the police and the security forces. That said, the public interest is not an issue here since the exemption under scrutiny is absolute” (judgment at [9]). Given these comments, it may be that this was a case where the Tribunal would have welcomed some discretion.

Rachel Kamm, 11KBW