When to assess the public interest in a FOIA request? Four years ago says Upper Tribunal in Maurizi

October 23rd, 2019

Heading off the FOIA equivalent of a zombie apocalpyse, the Upper Tribunal has driven a stake through the heart of the contention (long presumed dead) that the public interest in a FOIA request is to be assessed at a time other than when the public authority first refused the request.

For four years, Italian journalist Stefania Maurizi has been fighting a FOIA battle for the release of correspondence held by the CPS concerning Wikileaks founder, Julian Assange.

The CPS has responsibility for conducting extradition proceedings on behalf of other States. The evident purpose of the request (made in 2015) was to assess the risk of Mr Assange being extradited if he was to leave his Ecuadorian-subsidised Knightsbridge digs.

Much has changed since 2015. Mr Assange has been evicted by his Latin American landlords and has taken up residency at one of Her Majesty’s less reputable establishments. An extradition request by the US is now public knowledge.

One might be forgiven for concluding that information rights lawyers had the most to gain from Ms Maurizi’s Upper Tribunal appeal (Maurizi v The Information Commissioner & The Crown Prosecution Service [2019] UKUT 262 (AAC)).

The timing for the assessment of public interest

To begin with, the judgment seeks to put “finally to rest” any debate about the date at which the public interest weighing exercise for a qualifying exemption should be carried out. The answer? The date that the public authority finally refuses the request.

Any suggestion that a ground of exemption could be relied upon at a later point in the FOIA appeals process where that exemption could not have applied at the time of refusal was also firmly squashed (§182).

The Upper Tribunal’s conclusion was perhaps unsurprising given that this is precisely the view expressed (obiter) by Lord Neuberger (with whom two Lords agreed) in R (Evans) v Attorney-General [2015] UKSC 21 at §73 and the approach taken by the Upper Tribunal in All Party Parliamentary Group on Extraordinary Rendition (APPGER) v The Information Commissioner and the Foreign & Commonwealth Office [2015] UKUT 377 (constituted by three judges).

UTJ Mitchell considered that APPGER was binding on him (§184), but he would have reached the same result without reference to authority in any event (§§168, 185).

Qualified exemptions and the duty to confirm or deny

One of Ms Maurizi’s grounds of appeal challenged the way that the First-tier Tribunal carried out the public interest balancing exercise in the context of deciding whether to confirm or deny holding the information (see FOIA ss 2(1) and, in this case s 30(3)). This test calls for the public interest to be assessed against a hypothetically constructed set of information that might be held by the authority rather than information in fact held.

Ms Maurizi’s criticism was that the FTT had wrongly confined the hypothetically held information to information that it had concluded the CPS was likely to hold (here – correspondence about extradition), rather than assuming it held a wider range of information that could fall within her request ie. any correspondence between the CPS and Ecuador.

The Upper Tribunal concluded (§200) that it was appropriate for the FTT to adopt a hypothesis based upon a factual finding that the only information the CPS would have held and it was not required to assume that a potentially broader range of information (as described in the request) was held.

A public interest in not being deprived of information relating to oneself?

Finally, in conducting the public interest balancing exercise, is the public interest in not being deprived of information relating to oneself a matter to be taken into account?

Ms Maurizi claimed there was and insisted that it was not taken into account by the FTT.

Accepting that there was, in a general sense, such a public interest – the Upper Tribunal found it was either not a public interest consideration to be taken into account for the purpose of determining whether to confirm or deny holding the information, or not one that should attract more than a “minimal weighting” (§203). Amongst other things, obtaining information relating to oneself was the domain of the GDPR and the DPA 2018.

Given FOIA s 40(1) provides that the personal data of requestors is not disclosable under FOIA, it is difficult to see why this conclusion would not apply to a public interest balancing exercise in determining whether to disclose information to the requestor as well.

Robin Hopkins appeared for the Information Commissioner.

Christopher Parkin @parkinchris

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