Security bodies and legal advice: some Upper Tribunal droning

January 18th, 2018

The Times’ Lawyer of the Week this morning discusses an Upper Tribunal FOIA appeal brought by Rights Watch UK (for whom Daniel Carey, the Lawyer of the Week, acted pro bono), seeking disclosure of the Attorney General’s advice on drone strikes in Syria. The case was Corderoy & Ahmed v IC, AGO, Cabinet Office [2017] UKUT 495 (AAC). Whether you consider it a win, a loss or a draw (and if so for whom) will depend on which side you’re on here and, as counsel on all sides were colleagues at 11KBW, I will attempt a studied neutrality. I confess I have not found all aspects of the judgment easy to follow, but here you go.

The first Appellant was a journalist who made a request to the Attorney General’s Office for correspondence and communications relating to the approval of “the RAF drone attack which killed two Britons, Reyaad Khan and Rahul Amin” in Syria. The second Appellant made two requests on behalf of Rights Watch (UK), one to the Attorney General’s Office and one to the Cabinet Office for the “legal advice to which the Prime Minister referred” when making his announcement to Parliament about the strike.

Both requests were refused, primarily on the basis of exemptions under s. 23 (security bodies), s. 35(1)(c) (Law Officers’ advice) and s. 42 (legal professional privilege) of FOIA. The exemptions were upheld by the ICO and the appeal was fast-tracked straight to the UT.

The UT ruled that the information was exempt under s. 35(1)(c) and s. 42, and so the advice, or the relevant correspondence has not been released. This may come as no surprise to those who read Chris Knight’s post on the UT case of Savic (see here). Savic concerned a request for the Attorney General’s advice on the decision to launch military action in Kosovo. In both of these cases the UT observed that the ordinary factors identified by the courts in favour of the non-disclosure of LPP information provide in themselves “powerful reasons” for a refusal of a FOIA request for privileged material and advice from Law Officers involve additional weighty factors.

It seems from both of these cases that requests under FOIA for the Attorney General’s advice, unless it is historic or tainted by serious impropriety, face uphill struggles.

Despite no further information being disclosed, the UT’s judgment contains a number of notable points in the Appellants’ favour.

Disaggregation

One argument advanced by Rights Watch UK was that the security body information could be disaggregated from the legal analysis. A typical advice from counsel, for example, might contain a section on the relevant legal principles followed by the application of those principles to the facts of the case.

The UT agreed. It held that the circumstances of the drone strike and the part played by the security bodies in any particular operation could be separated from the legal analysis, which could, for example, be “provided as, in effect, a text book or lecture analysis based on hypothetical or possible circumstances”. Whist the former fell squarely within the security body exemption, the latter may not.

Disaggregation is not itself novel. Security body information is in many cases redacted in a document rather than a blanket exemption being applied to the document as a whole. However in this case the AGO and Cabinet Office had agued that all of the information was covered by s. 23 and the judgment will no doubt lead to more carful scrutiny of the extent to which separation can be achieved.

The Security Body exemption

The UT’s reasoning on the application of s. 23 is convoluted and at times contradictory. It observed that, in respect of whether information ‘relates to’ a security body “the judicial language in earlier cases should not be substituted for the statutory language”. Okay then. The UT went on to conclude (at [62]) that:

“although we accept that the Disaggregated Information was and is of interest to security bodies for their statutory purposes and, as a matter of ordinary language, can be said to relate to them, Parliament did not intend such information to be covered by the absolute section 23 exemption.”

The UT also suggested that the following question needs to be considered in any given case (at [55]):

Which exemption or exemptions to the right to be provided with information conferred by FOIA did Parliament intend to apply to the disclosure of particular information by a public authority?”.

In this case, legal analysis, disaggregated from the particular circumstances of the drone strike “falls obviously within the qualified exemptions in sections 35 and 42 as being legal advice on the formulation of Government policy.”

So s. 35(1)(c) and s. 42 were the appropriate exemptions for this disaggregated information, and not s. 23.

How is this new test intended to work? When information falls within more than one exemption, how do you figure out which exemption Parliament intended to be the ‘right’ one? Should, for example, the names of individuals who work for security bodies really be considered under s. 40 of FOIA (personal information) rather than s. 23? It is commonplace for absolute exemptions to be considered before qualified ones, but do we instead need to consider which one is the best ‘fit’, and then focus on that one? What are public authorities, the ICO and the Tribunal supposed to do with this test? The answers are not obvious, to me at least.

The Assurance Letter and the ICO’s scrutiny

Finally, as part of the ICO’s investigation into the Appellants’ complaints, the AGO and Cabinet Office had produced a ‘letter of assurance’, which confirmed that a senior official had read the information and that it was covered by s. 23.

The s. 23 information was not then read by the ICO prior to issuing its Decision Notice. This has been accepted practice in light of the sensitivity of this type of information, but the UT was very critical of this approach. It observed (at [95]):

“We acknowledge the resource difficulties of the Information Commissioner but we consider that the course adopted here of effectively permitting the other two Respondents to be the decision-maker on the challenge to their stance on the application of the absolute exemption in section 23 is unfair.”

If the AGO and Cabinet Office wanted to avoid the logistical and sensitivity difficulties involved with allowing the ICO access to the information, the appropriate route would have been a Ministerial Certificate under s. 23(2) rather than a letter from a senior official.

Anya Proops QC appeared for Rights Watch UK (with Julianne Kerr Morrison), Chris Knight appeared for the ICO and Karen Steyn QC and Julian Blake appeared for the AGO and Cabinet Office.

Robin Hopkins

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