FOIA and security bodies: the definitive principles

February 11th, 2021

My colleague Christopher Knight is a man of principle. In particular, he articulated the “Goldsmith Principles”, a kind of roadmap for dealing with the legitimate interests processing condition under DP law – see the Goldsmith judgment, and the approval of the Goldsmith Principles in Cooper. In a recent judgment from the Upper Tribunal, he has done the same for the security bodies exemption under section 23 of FOIA.

The case is Commissioner of Police for the Metropolis v IC and Martin Rosenbaum (GIA/2230/2019): Met Police IC Rosenbaum UT. Mr R asked the Police for all information held by what was then called Special Branch relating to the far-right extremist group the National Front in 1974, 1975 and 1983. The Met Police gave a “neither confirm nor deny” (NCND) response, relying on section 23(5), which applies where confirmation or denial “would involve the disclosure of any information (whether or not already recorded) which was directly or indirectly supplied to the public authority by, or relates to” any of the listed security bodies. The concern was that confirming or denying whether the requested information was held would disclose whether or not Special Branch had an interest in the National Front and, given the close working relationship between Special Branch and the Security Service, would disclose whether or not there had been any involvement of the Security Service. FOIA is not supposed to be a tool for finding out anything to do with the Security Service.

The ICO liked the Police’s case, the FTT didn’t, and off they all went to debate the point in front of UT Judge Markus QC.

Judge Markus liked it, i.e. she allowed the appeal and concluded that the section 23(5) NCND had been correctly applied. In so doing, she has helpfully clarified the law on section 23 FOIA, resolving the apparent tensions between the previous leading case of APPGER and the subsequent eyebrow-raiser of Corderoy.

Upshot: section 23 is very wide indeed, as a matter of statutory language and Parliament’s intention to keep FOIA away from security bodies’ territory. Avoid putting a gloss on the wide statutory language. “Relates to” is a very wide term; it may sometimes be helpful to consider the synonyms of “some connection”, or “that it touches or stands in some relation to”, or something along those lines. For the full roadmap, see the 14 (yes, 14!) principles from Mr Knight at para 35, endorsed by the UT.

The UT also confirmed that “the fact that information had been placed in the public domain was irrelevant to section 23(5) unless that information had been officially confirmed”.

Robin Hopkins

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