Icebergs Avoided: Navigating the s23 Case Law

Anyone who has had a FOIA case in the national security space will have faced the near-impossible task of trying to work out what on earth Corderoy & Ahmed v Information Commissioner & Attorney General & Cabinet Office [2017] UKUT 495 (AAC) means; a front-runner for most impenetrable Upper Tribunal decision on FOIA. Now Judge Markus QC has had a go at squaring the circle in Lownie v Information Commissioner & Foreign and Commonwealth Office & The National Archives [2020] UKUT 32 (AAC).

The Lownie case concerned a request to The National Archives (“TNA”) for various closed FCO files relating to Guy Burgess and Donald Maclean, two of the notorious Cambridge Five spy ring, including one concerned with the vetting of a particular individual. Because the file had been transferred to TNA, the effect of s64(2) FOIA is that s23 is rendered a qualified rather than an absolute exemption. Sections 23 (security bodies), 24 (national security) and 38 (health and safety) were relied on: all were therefore qualified exemptions in this context.

The first ground advanced by Mr Lownie on the appeal concerned the continued vexed question of what “relates to” means in s23(1) FOIA. In this context, the approach in Corderoy and in APPGER v Information Commissioner & Foreign and Commonwealth Office [2016] UKUT 377 (AAC) had to be considered and reconciled. This Judge Markus QC found understandably difficult. She expressed agreed at [42] with the ‘back door’ concern accepted in both previous cases: “What appears to an outsider, including the FTT, anodyne, uninformative and lacking in interest may in fact, to those ‘in the know’, provide information about matters related to a security body”. She reiterated that Corderoy had accepted the guidance in APPGER that the statutory language was key, and Parliament’s intention was that that language be applied to the facts of any particular case: at [44]. She also reiterated, rightly, that Corderoy had not qualified or doubted the core reasoning in APPGER that ‘relates to’ should not be construed narrowly and was to be used in a wide sense to shut the ‘back door’, and that there should be no judicial gloss on the statutory test: at [47]. There was no linguistic warrant to read ‘relates to’ as meaning ‘directly relates to’ and that would not provide clarity in any event: at [59]-[60].

At [45], Judge Markus commented that “as a matter of general principle, the fact that information might come within the scope of a qualified exemption cannot of itself be an answer to the question whether it is within the scope of a different absolute exemption”. That seems (to me at least) to be obviously right, and Judge Markus was there treading a diplomatic line in righting the course of the law when Corderoy appeared, quite plainly, to have said something entirely the opposite for no discernible good reason. Her analysis at [46] is a polite way of saying Corderoy should be considered as a case on its own specific facts. That too is probably the best way to deal with this particular black jurisprudential sheep.

Section 23 is not to be interpreted by reference to the perceived role of s24, but to give effect to the policy imperatives driving s23; the s24 safety net in fact reinforces the wide scope of s23: at [52]. It is irrelevant whether or not the information is, or is thought to be, anodyne; there is no prejudice test: at [54]-[55]. Nor is it necessary to ask whether the information ‘says something’ about the security body and its activities; that question may be useful and even determinative in some cases, but it is not the only question: at [56]-[57]. Judge Markus QC accepted that there might come a point at which the relation was too remote (a concept considered useful by the FTT from time to time, but not in Corderoy for reasons again not explained), but that was a value judgment to be made in a particular case having regard to the legislative purpose: at [62].

On the facts, a vetting file of a civil servant plainly had a connection to the security bodies: at [67]. In this case, even the name of the individual was itself related to security bodies: at [70]-[71].

Unusually, because of the application of s64 FOIA, s23 also required a public interest test to be applied and this too was subject to an appeal. Mr Lownie argued that the FTT had wrongly ascribed an inherent weight to the protection of s23 material. The Upper Tribunal did not agree. It held that the starting point was that Parliament had decided that the need to withhold security body information was so powerful as to be absolute, save in the case of historical records, and that that policy concern did not evaporate in historical records cases. Although the scales might start empty, some interests “weigh more heavily than others”; that reflected the legislative policy choices: at [83]-[84]. The FTT had not made any error in finding that the public interest favoured maintaining the exemption.

Any FOIA user who needs to consider s23 will now probably find that Lownie is single most useful authority (and certainly easiest to understand), steering a sensible course through the undoubted mess left by Corderoy after APPGER. All praise to Judge Markus QC for her approach, and her diplomacy in doing so.

The Upper Tribunal also considered an argument advanced by Mr Lownie that because the FCO/TNA had only made clear that they were arguing that s23 applied to the whole of the file in their skeleton argument for the hearing, the FTT should only have permitted this argument in its discretion upon the application of the relief from sanctions principles set out in Denton v TH White Ltd [2014] EWCA Civ 906. The argument did not arise on the facts, because the Upper Tribunal was satisfied that s23 had been sufficiently pleaded, as of right, in the Response. But in any event, Judge Markus QC declined to apply those principles as “wholly inconsistent with the investigatory role of the FTT in information rights proceedings”: at [30]. She did not accept that the Supreme Court’s application of then to the FTT (Tax Chamber) in BPP Holdings Ltd v HMRC [2017] UKSC 55 required her to apply them in the information rights context. There would have been no reasonable basis to prevent the FCO/TNA relying on s23 in relation to the whole file in the circumstances. Thank goodness for that: no-one needs to start worrying about Denton in FOIA cases!

 Christopher Knight