In Summers, the First-Tier Tribunal has revisited the application of the national security exemption which was previously examined in the case of Kalman v IC (application of s. 24 to airport security arrangements – see my earlier post on the Kalman case). The principal issue in Summers was whether the IC had erred in concluding that information comprising the total amount spent by the Metropolitan Police’s Royal Protection Unit in a particular year was exempt from disclosure under s. 24 FOIA. In a robust judgment, the Tribunal held that the Commissioner had been right to conclude both that s. 24 was engaged in respect of the information and that the public interest balance weighed in favour of maintaining the exemption. Notably, the Tribunal rejected the Appellant’s case that the Royal Family was not integral to our domestic constitutional arrangements and, hence, could not give rise to national security considerations. In reaching this conclusion, the Tribunal adopted the broad approach to construing the concept of national security approved in Kalman. The Tribunal also found that, whilst taken in isolation the information may not be significant, when placed within a larger mosaic of information already available within the public domain, the information could be of use to terrorists and other criminals wishing to target members of the Royal Family (see further the discussion of the ‘mosaic effect’ at paras. 73 et seq). The Tribunal went on to conclude that, in all the circumstances, the public interest balance weighed firmly in favour of the s. 24 exemption being maintained. The Tribunal also considered the application of the exemptions provided for in ss. 31 (prevention of crime) and 38 (health and safety). It found that the information was also exempt under these sections.

Finally, the Tribunal was asked to consider whether the public interest considerations applicable to all three exemptions should be aggregated together, as per Ofcom v IC (Case C-71/10 (ECJ)). The Tribunal held that the issue was strictly academic as it had found that the information was exempt under each of the three individual exemptions in any event. However, it went on to comment obiter that, had aggregation been in issue, it would have ‘unhesitatingly’ held that the aggregated interests in maintaining the exemptions outweighed the public interests in disclosure (para. 96).