Tag: First-tier tribunal

ICO cannot have a second go

Posted on | by Robin Hopkins

Okay, the following points are mainly about procedure, but they are nonetheless quite important for those involved in FOIA litigation before the Tribunals. These points come from a pair of recent Upper Tribunal decisions, both arising out of requests from the same requester.

One is IC v Bell [2014] UKUT 0106 (AAC): Bell UT s58. Question: suppose the First-Tier Tribunal thinks the ICO got it wrong in its decision notice. Can it remit the matter to the ICO for him to think again and issue another decision notice on the same complaint? Answer: no, it can’t; it must dispose of the appeal itself. There are some exceptions, but that is the general view with which parties should approach Tribunal litigation.

That Bell decision also comments on the importance, in relevant circumstances, of the Tribunal ensuring that it gets the input of the public authority and not just of the ICO, as there will be cases where only the public authority can really provide the answers to questions that arise at the Tribunal stage.

That same Bell decision also explores this point, for those with an interest in FOIA and statutory construction (surely there are some of you?): under s. 58 of FOIA, unless the Tribunal is going to dismiss an appeal, it must “allow the appeal or substitute such other notice as could have been served by the Commissioner” (my emphasis). That is curious. Quite often, Tribunals do both of those things at the same time. What to make of this? Judge Jacobs explains in the Bell decision.

There was also a second Bell appeal on the same day: Bell UT s14. Same Bell, different public authority and separate case: IC and MOD v Bell (GIA/1384/2013). This was about s. 14 of FOIA (vexatious requests). The public authority had provided lots of detail about the background to the series of requests to make good its case under s. 14. But there was a paper hearing rather than an oral one and the Tribunal appears to have overlooked some of that detail and it found that s. 14 had been improperly applied.

Judge Jacobs overturned that decision. One reason was this: when a binding and decisive new judgment (here, Dransfield) appears between the date of a hearing and the date of the Tribunal’s final deliberations, justice requires that the parties be given an opportunity to make submissions on the application of that judgment.

Another was that the Tribunal had failed properly to engage with the documentary evidence before it. “That is why the papers were provided: to be read. A tribunal is not entitled to rely on the parties to point to the passages that it should read and to look at nothing else” (my emphasis). This underlined point is obviously of general application to Tribunal litigation.

Robin Hopkins @hopkinsrobin

Closed material and closed proceedings in FOIA litigation: authoritative guidance from the Upper Tribunal

Posted on | by Robin Hopkins

Closed material and closed proceedings are commonplace in FOIA litigation. As regards the disputed information itself, the need is self-explanatory. But what about closed material other than the disputed information, such as evidence in support of a public authority’s reliance on exemptions? To what extent is it appropriate for FOIA proceedings to be determined by reference to such material which the requester is unable to see and challenge? Also, if the public authority’s concern is with public disclosure of such material, is the solution to be found in a readiness to bring the requester’s legal representatives into a ‘confidentiality ring’? In other words, do natural and open justice demand that requesters’ legal representatives be allowed to attend the closed part of the hearing and see the closed material?

These questions are fundamental to the fair and thorough determination of disputes about the rights conferred by FOIA. In a very important recent decision, the Upper Tribunal has given its answers.

The case

Browning v IC and Department for Business, Innovation & Skills (GIA 25/12) was heard by Mr Justice Charles, Mr Justice Mitting and Upper Tribunal (UT) Judge Andrew Bartlett QC. The decision is available here: Browning GIA 25 12.

The case concerned a request from a Bloomberg journalist for information from the Export Control Organisation (for which DBIS is the relevant public authority) in connection with licences issued for the exporting to Iran of “controlled goods” – explained as “mainly military, dual use (potentially military), equipment designed for torture or repression or sources of radio-activity”. DBIS relied on sections 41 and 43 FOIA. The IC found for the requester but, upon sight of further evidence, supported DBIS’ appeal before the First-Tier Tribunal (FTT). In decision EA/2011/0044, the FTT allowed DBIS’ appeal. In reaching its decision the FTT considered closed material and part of the hearing was closed.

The closed material comprised not only the disputed information, but DBIS’ evidence supporting its reliance on the exemptions. In particular, DBIS had written to applicants for such licences to obtain their views about disclosure, and it relied on their (confidential) responses in closed. Four or five of the 92 responses had been provided to Mr Browning in an anonymised, re-typed and redacted form prior to the hearing before the FTT, so as to illuminate to a degree the nature of the closed evidence being relied upon.

Mr Browning had not asked for more of the closed evidence to be made available to him in that way. Rather, a without-notice application was made at the FTT hearing for his legal representative(s) to see the closed material and attend the closed hearing in order to put the case on his behalf. The FTT refused the application. It summarised the approach taken in other FTT decisions, whereby such applications “will succeed only if there are exceptional circumstances specific to the appeal… The use of special counsel, as an alternative, is likewise exceptional.”

Mr Browning’s first ground of appeal before the UT was against the FTT’s refusal of that application.

Reliance on closed material

Mr Browning understandably contended that “the principles of open and natural justice and of fairness require, or strongly support the conclusion, that their application in the context of adversarial civil litigation should be departed from to the least extent possible… in the determination of an appeal to the FTT under FOIA” (para 48).

The UT said, however, that those principles admit of some context-sensitive flexibility. FOIA appeals are materially dissimilar from criminal and adversarial civil litigation. At paras 59-60, it said that:

“FOIA and its underlying purposes mean that, when a disputed request for information reaches the First-tier Tribunal pursuant to the statutory scheme put in place by FOIA, the relevant background and landscape of rights, interests and duties is materially different from that which obtains in criminal and civil litigation in the courts… It follows from the points we have made about the purposes of FOIA that, in our view, to characterise the First–tier Tribunal’s function, within the statutory scheme established by FOIA, as or equating to ordinary civil and therefore adversarial litigation because it is deciding a dispute between the parties before it, or deciding whether to vindicate a right claimed by the applicant, is an inadequate and inaccurate description; rather, its function is investigatory and is to see that FOIA is properly applied to the circumstances. This involves consideration, in the manner provided by FOIA, of the right which is given by s. 1(1) in pursuance of the interests served by the release of information, together with the assessment of countervailing public and private interests in accordance with the terms of the exemptions.”

Closed proceedings are thus intrinsic to FOIA litigation. The UT has confirmed the right to rely on closed evidence other than the disputed information (though see below for procedural caveats). See paras 59-60:

“(i) it is clear that Parliament did not intend that there should be such a “back door” route to information in respect of which a FOIA exemption could be claimed.  It follows that there is a need to protect it from disclosure to a requester that is equivalent to that which exists in respect of the information he or she has requested, and

(ii) it is also apparent that Parliament did not intend to spawn disproportionate and satellite disputes on whether an exemption applies to information put forward to establish a claimed exemption, and this is a reason why it chose an investigatory appeal process to a tribunal comprising persons with relevant expertise.”

The UT concluded that (para 71):

“The exercise by the First-tier Tribunal of its discretion under the 2009 Rules to consider closed material and to hold a closed hearing is not governed directly, or by analogy, by the approach taken by the civil courts to the disclosure of relevant material and we therefore reject Mr Browning’s central argument that it should be exercised to achieve a result that departs to the least extent possible from the approach taken in adversarial civil litigation.”

Applications for representatives to see closed material/attend closed hearings

The UT reviewed the jurisprudence on this issue (which has not favoured the granting of such applications) and discussed the problems that would arise if such an application were granted. There is a risk of accidental disclosure. It can be difficult for the representative to police neat lines between what he can and cannot say to his client or in open session. More generally, there would be very problematic limitations on taking instructions, such that (para 76) “the value added of the approach over that of suggesting lines of enquiry to the First-tier Tribunal and the Information Commissioner is likely to be limited to what the representative knows of his client’s position before he takes part in the closed process.” In any event, what to do about unrepresented requesters?

At paras 80-81, the UT set outs its conclusions:

“… a First-tier Tribunal should not direct that a representative of an excluded party should see closed material or attend a closed hearing unless it has concluded that, if it does not does so: it cannot carry out its investigatory function of considering and testing the closed material and give appropriate reasons for its decision on a sufficiently informed basis and so fairly and effectively in the given case having regard to the competing rights and interests involved.

81.          We also acknowledge and confirm that this approach will lead to the result that it will only be in exceptional and so rare cases that a representative of a party seeking information under FOIA will be permitted to see closed material and attend at a closed part of the hearing.  Indeed, we have not been able to identify circumstances in which we think that this would be appropriate, but acknowledge that it cannot be said that this should never be done.”

It also considered that Article 6 ECHR was not engaged, and that its engagement would not dislodge the above conclusions in any event.

Mr Browning’s first ground of appeal therefore failed. The UT did, however, have more to say on how to approach reliance on closed material. All parties involved in FOIA litigation should pay careful attention to these points.

The Practice Note and other observations on the use of closed material

The UT had misgivings about the limited extent of the anonymised closed material which had been made available to Mr Browning on an open basis. It noted, however, that this limited disclosure had for a vigorous and partially successful challenging of the evidence by the requester’s counsel. “During the period leading up to the hearing and when it began Mr Browning and his legal representatives had ample opportunity to seek by way of agreement or further direction additional information about the extent, content and nature of the Closed Exemption Evidence and they did not do so”.

Strictly speaking, the UT has declined to issue general guidance on the approach to allowing reliance on closed material at FTT level, but it has made a number of important points.

It observed (para 42) that “the need to avoid disclosure of the requested information is an obvious and good reason for there being closed material and a closed hearing, but in some cases this may not be the only reason that justifies a First-tier Tribunal considering closed material and holding a closed hearing”.

The FTT’s Practice Note on Closed Material in Information Rights Cases (issued in May 2012) was also considered. The UT said this (para 17):

“This does not have the force of a rule of law or a practice direction, and this judgment should not be taken as comprehensively endorsing it, but we do consider that it is something that First-tier Tribunals should take into account and, if they do not apply it in a given case, they should explain why they have not done so.  In particular, in our judgment, if no written and reasoned application for there to be closed material and a closed hearing has been made pursuant to that Practice Note, First–tier Tribunals should explain why they have proceeded without one.”

It added this on the FTT’s approach to closed material in general (para 18):

“More generally, we comment that First-tier Tribunals should consider and give appropriately detailed directions and reasons (i) setting out the nature and subject matter of any closed material and hearing, (ii) why they have accepted that they should consider evidence advanced by a public authority (or anyone else) and argument on a closed basis, and (iii) why further information relating to their content has not been provided.  If this is done it will provide clarity as to what will be, and has been, considered on a closed basis and why, for example, evidence provided to support an exemption has been so considered and more of it, or about it, has not been disclosed.”

Finally, the UT was clear as to the ongoing nature of these duties (para 39): “throughout the proceedings a tribunal carrying out its investigatory function must keep under review whether information about closed material should be provided to an excluded party in, for example, an anonymised form”.

Clearly, all FTT proceedings involving closed should be conducted in light of the points made above.

Other grounds of appeal: sections 41 and 43 of FOIA

Mr Browning’s other grounds of appeal also failed before the UT. Some of those grounds concerned the FTT’s findings on section 41 of FOIA (actionable breach of confidence). Mr Browning that the disputed information had not been “obtained” from outside the public authority, that the name of a licence applicant does not have the necessary quality of confidence, and that applicants had not imparted licence information in circumstances importing an obligation of confidence. All of those grounds of appeal were dismissed.

More broadly, on the approach to section 41 of FOIA, the UT has said this (para 30):

“It was also common ground before the FTT, and not an issue that was raised or argued before us, that the consideration of whether disclosure would constitute a breach of confidence that is “actionable” incorporates all parts of the breach of confidence action, including the absence of a public interest defence.  This accords with existing First-tier Tribunal decisions (see for example, Gurry on Breach of Confidence 2nd edit para 13.130 and in particular HCFC v IC & Guardian News and Media EA 2009/0036).  On that approach, the point that s. 41 is an absolute exemption is not as significant as it might first appear because within it there is a need to weigh the competing public interests, and as pointed out in a footnote to that paragraph in Gurry, the reverse approach to weighing the public interest in respect of a breach of confidence to that set out in s. 2 of FOIA in respect of a qualified exemption, if anything, makes it easier to establish the s. 41 exemption but is unlikely to become a determinative factor.”

Mr Browning also challenged the FTT’s conclusions on the detriment likely to arise from disclosure and argued that it had not identified the prejudice to commercial interests or the likelihood of that prejudice (for section 43(2) FOIA purposes).

The UT did have misgivings about the FTT’s comments about ‘chilling effect’ arguments on the evidence, but found that it there had been an error of law, it was at most a makeweight finding which did not suffice to overturn the FTT’s decision.

Ben Hooper acted for the Information Commissioner.

Robin Hopkins

Information “reasonably accessible” despite hefty charge

Posted on | by Charles Bourne

In Davis v ICO and Health and Social Care Information Centre (case no. EA/2012/0175, judgment 24 January 2013) the First-Tier Tribunal applied the absolute exemption under section 21 of FOIA 2000 for information which is reasonably accessible to an applicant other than under section 1. The requested information consisted of health statistics which the public authority was willing to provide to the appellant under its publication scheme for a charge of £1,550. The appellant argued that the charge meant the information could not be considered to be reasonably accessible to a person of ordinary means.

 Section 19 of FOIA requires public authorities to adopt publication schemes, subject to approval by the Information Commissioner, for the dissemination of information with or without charge. Section 20 provides for the ICO to approve model publication schemes which public authorities may adopt without further approval.

 The critical provision in this case was section 21(3) which provides that information is “not to be regarded as reasonably accessible to the applicant merely because it is available from the public authority on request, unless the information is made available in accordance with the authority’s publication scheme and any payment required is specified in, or determined in accordance with, the scheme”.

 The Tribunal interpreted this provision as meaning that if a scheme has the ICO’s approval and if the charge is specified in the scheme or ascertainable from it, the ICO and the Tribunal are required – rather than merely empowered – to regard the information as reasonably accessible.

 There was therefore no scope for the ICO or the Tribunal to judge the accessibility of the information by reference to the charge or any other factor. The ICO’s approval of the model scheme was conclusive. The Tribunal was persuaded that the ICO is indeed the appropriate authority to determine whether access is reasonable, and that it was hard to see why Parliament should enact a detailed system for approval of publication schemes and notification of charges “if compliance simply made the authority`s published information eligible for an assessment as to whether it was reasonably accessible”.

 It seems that the only remedy for an applicant who is deterred by charges is to draw the matter to the ICO’s attention. The ICO is empowered to revoke his approval on notice and, as the Tribunal noted, might take such a step if there was evidence of charges deterring information requests.

 Charles Bourne

Local authorities and NHS Trusts (2): unusual appeals ahead

Posted on | by Robin Hopkins

I blogged earlier (see below) about the sorts of information law issues that arise routinely for local authorities and NHS Trusts. On a more unusual note, it is worth noting that the First-Tier Tribunal is due to hear appeals against notices other than the usual decision notices issued by the Information Commissioner under s. 50 of FOIA.

The first ever appeal against a monetary penalty notice issued for breaches of the Data Protection Act 1998 will be heard on 3-5 December of this year: Central London Community Healthcare NHS Trust v IC (EA/2012/0111). The Trust was fined £90,000 for faxing patient lists containing sensitive personal data to the wrong number. The Commissioner’s press release is available here.

Secondly, Southampton City Council is appealing against a decision by the Commissioner that a licensing policy under which all licensed taxis must use surveillance equipment consisting of CCTV and audio-recording facilities, both of which must operate whenever the vehicle is in motion, breached the first data protection principle. The Commissioner issued an enforcement notice against the Council (his press release is here).

The appeals will feature my fellow Panopticonners Anya Proops (for the Commissioner in both cases) and Tim Pitt-Payne QC (for the appellants in both cases).

Robin Hopkins

UPDATE ON RECENT TRIBUNAL DECISIONS

Posted on | by Rachel Kamm

The First Tier Tribunal (Information Rights) has had a busy start to 2012, with 7 decisions on its website already.

The first judgment out was Herbert v ICO and West Dorset District Council, EA/2011/0157. The appellant sought correspondence concerning the transfer to the Council of property previously owned by Lyme Regis Borough Council. The Council refused the request on ground that it was vexatious. The history of this case related to incidents and disputes regarding a different matter, between the appellant and the Council dating back to 1992, which culminated in 1996 when the Council revoked a license held by the appellant. The ICO agreed that the request was vexatious. The appellant submitted that he had a genuine interest in the history of Lyme Regis and that he believed that some historical documents were missing from the National Archives and that they had been retained by the Council because they related to illegally acquired property. The Council had previously allowed him to research their archives on another matter and he wished to be able to do so again to look for these missing documents. He said that he had expected the ICO to contact him so that he could put forward further arguments. The FTT agreed with the ICO and the Council that the request had been made under FOIA (and not the EIRs). The FTT set out the key principles that have been applied by Tribunals in considering whether requests were vexatious under s14 FOIA. The FTT considered the background and found that the appellant’s request was obsessive. Further, the request had the effect of harassing the Council (even though the language was not hostile), as allegations of illegality and impropriety were made at the same time as the requests and there was a context of a high volume of correspondence. The Council had made extraordinary efforts to accommodate the appellant’s requests over a considerable period of time and valuable resources of time and effort have been used which could otherwise have been used more productively. In the view of the FTT, to accommodate this request would constitute a further and significant burden on the Council. The FTT concluded that the request was vexatious.

The next decision to be promulgated was King v ICO, EA/2010/0126. The appellant sought from the ICO records of complaints where Crawley Borough Council had failed to comply with FOIA/EIRs and the ICO never served a ‘decision notice’. The ICO refused the request on ground that the information  consisted of ‘third party information’ that was exempt from the requirements of disclosure. It did not identify the exemption relied on for refusing to disclose the information. However, it did provide the appellant with a summary of the information requested. Further information was provided by the ICO in response to the appellant’s request for a review of the decision. The appellant then asked for the information with just the personal details of individuals removed. The ICO refused, citing s.44 FOIA, as exempting information that is prohibited from disclosure under another Act, namely s.59 DPA (which prevents disclosure of information collected in the course of an investigation where there is no lawful authority to do so). The appellant requested  review of this decision. In subsequent correspondence, the ICO  relied on s.40 FOIA (the data protection exemption). The appellant then asked the ICO to make a decision under s.50 FOIA as to whether it had complied with the Act. Having previously been acting in its capacity as a body which was itself subject to FOIA, the ICO then changed back to its normal hat. The ICO said that it was reversing its decision and it provided the appellant with the  letters which had been sent to the Council in the cases alleging non-compliance with FOIA, with personal data redacted. The appellant disputed that this resolved his request; he also wanted the documents from the individuals making complaints and from the Council. The ICO denied that these had been within the scope of his original request. The ICO subsequently issued a decision notice stating that it had provided the appellant with the information requested, but that it had breached FOIA (including by not holding an internal review at the right stage, by not providing the information at the outcome of the internal review and by not acting within the time-scales in the Act). The appellant appealed, arguing that the ICO had not provided all information which fell within the scope of his request, had misinterpreted his request and had breached the duty to provide advice and assistance. In relation to the scope of the request, the FTT criticised the ICO for not having properly analysed the request but found that in fact it had provided all information that fell within the scope of the request. The appeal therefore failed. The FTT also found that the ICO was not in breach of the duty to provide advice and assistance; the appellant argued that the ICO should have asked him to clarify his request, but the FTT found that this was not necessary because the request was in any event clear and adequately specified the information sought. This case very much turned on its facts, but it is interesting to see the application of FOIA to the ICO as a public authority and it is also a useful reminder to carefully read the request from the outset.

The third decision out in 2012 was Newcastle Upon Tyne Hospital NHS Foundation Trust v ICO, EA/2011/0236. This appeal was struck out because the judge considered that there was no reasonable prospect of it succeeding. The disputed information was statistics about the number of people dismissed over a three year period. The Trust refused to provide the information, on ground that it was reasonably accessible (s.21 FOIA) by way of an application in the employment tribunal litigation. The Trust subsequently provided the information voluntarily. The ICO found that the Trust had misapplied s.21 FOIA. The Trust appealed, arguing that “The point at issue is one of prioritising the correct forum by which information is provided. The Trust point is that once proceedings are issued, the correct forum lies within the proceedings that have been issued, in this case the Employment Tribunal“. Not surprisingly, the judge found that this argument had no reasonable prospect of success. FOIA rights are not put on hold if there is litigation between the parties. Further, information obtained under FOIA can be used for any purpose whereas information obtained in litigation can only be used for that purpose and so litigation disclosure is not an answer.

Cross v ICO, EA/2011/025 is also a strike out decision. The appellant sought from Havant Borough Council a building control decision notice, plans and inspection records relating to a loft conversion to his home carried out in 1987. The Council refused the request under the EIRs, on ground that it was not held at the time of receipt of the request. The appellant believed that he had seen these documents on a visit to the Council and that, whilst it was possible that they had subsequently disappeared, his appeal should not be struck out. However, the Council had conducted a six day trawl for the information and the judge found that it was obviously willing to provide the information if it could be found. The appeal was therefore struck out as having no reasonable prospect of success.

Finally, in Martyres v ICO and NHS Cambridgeshire, EA/2011/020, the FTT dismissed an appeal by an appellant who sought all information held by NHS Cambridgeshire (and its relevant community services provider), in respect of her deceased mother who had died on 29 August 2009 including information about the care received by her mother at a care home she was staying at prior to her death. The appellant argued that she was the next of kin, proposed executor and trustee of one of the Wills and had a valid claim against her mother’s estate under the intestacy  rules. In relation to s.41 (FOIA), the FTT found that the information was obtained from another person (social care professionals), it possessed the necessary quality of confidence and disclosure would constitute such an actionable breach of confidence. The FTT further concluded that s.21 FOIA did not apply, in that the appellant would not have been able to obtain the disputed information under the Access to Health Record Act 1980 (as the appellant claimed); whilst she was the nearest relative, she was not the personal representative. The FTT also dismissed the appellant’s arguments under the Human Rights Act 1998.

Rachel Kamm

FROM NAKED PHOTOS TO NUCLEAR ENRICHMENT: ROUNDUP OF NEW TRIBUNAL DECISIONS

Posted on | by Robin Hopkins

The past week saw a slew of new decisions from the First-Tier Tribunal. Here is Panopticon’s highlights package.

Sections 41 (information obtained in confidence) and 43 (commercial prejudice)

In DBIS v IC and Browning (EA/2011/0044), the requester (a Bloomberg journalist) had sought information from the Export Control Organisation in connection with licences issued for the exporting to Iran of “controlled goods” – explained by the Tribunal as “mainly military, dual use (potentially military), equipment designed for torture or repression or sources of radio-activity”. The relevant public authority, the Department for Business, Innovation & Skills, refused the request, relying on sections 41 and 43. The IC found for the requester on the narrow basis that, whilst disclosure would result in a breach of confidence, no commercial detriment would be suffered by the licence applicants as a result. Subsequent evidence from the Department persuaded the IC to change position and support the appeal, which was resisted by the applicant. In a decision which turned on the evidence, the Tribunal allowed the appeal, and found both sections 41(1) and 43(2) to be effective.

Section 42 (legal professional privilege)

Two recent decisions on this exemption. Both saw the Tribunal uphold the refusal, applying the established approach under which this exemption has a strong in-built public interest. Szucs v IC (EA/2011/0072) involved an FOIA request about an earlier FOIA request (the appellant requested the legal advice and associated documents provided to the Intellectual Property Office about how to deal with a previous FOIA request made by the appellant’s husband). Davis v IC and the Board of Trustees of the Tate Gallery (EA/2010/0185) is eye-catching primarily because it concerned the Tate’s legal advice concerning the inclusion in an exhibition of a photograph of the actress Brooke Shields, aged ten, naked, entitled “The Spirit of America” (the Tate had initially proposed to include this in an exhibition, but ultimately withdrew the photograph).

Section 40 (personal data)

Beckles v IC (EA/2011/0073 & 0074) concerned the identifiability of individuals from small sample sizes, in the context of information about dismissals, compromise agreements and out-of-court settlements. The appellant asked Cambridge University for information on (among other things) the number of employees who received post-dismissal settlements. The answer was a low number. He asked for further details concerning the settlement amounts, rounded to some appropriate non-exact figure. This, said the Tribunal (applying the Common Services Agency/Department of Health approach to identifiability from otherwise anonymous figures) was personal data, the disclosure of which would be unfair. Its reasoning is summed up in this extract:

“Information as to the settlement of a claim made by an identified individual relating to his or her employment is undoubtedly personal data. The question is whether the four individuals or any of them could be identified if the information requested were disclosed, even in approximated form…. Cambridge University is made up of a large number of much smaller academic or collegiate communities. It is likely that a number of colleagues or friends will be aware that a particular individual settled a claim with the University within the time-scale specified. They will be aware of the general nature of that person`s employment. This is a small group of claims in a relatively short period. In the form originally requested it is readily foreseeable that one or more of the four will be identified.”

Sections 24 (national security) and 27 (international relations)

Burt v IC and MOD (EA/2011/0004) concerned information gathered by staff of the UK Atomic Weapons Establishment on an inspection visit to a United States atomic energy facility, as a learning exercise regarding the proposed development of an enriched uranium facility at Aldermaston. The US had expressed its desire to maintain proper confidence in what it regarded as a sensitive area. The MOD refused the request, relying on sections 27 and 24. By the time of the appeal, only a small amount of information had not been disclosed. This was primarily of a technical nature, containing observations about the operation of plant, machinery, procedures and processes at the US facility.

The Tribunal upheld the MOD and Commissioner’s case as regards the outstanding material. As regards section 27, the Tribunal applied the principles from Campaign against the Arms Trade v IC and MOD (EA/2006/00040). It observed, however, that confidential information obtained from another country would not always be protected by section 27: it was “perhaps axiomatic that the foreign State will take the United Kingdom as it finds it including but not limited to the effect of its own domestic disclosure laws. It follows that there may well be cases where information otherwise imparted in confidence from a foreign State to a United Kingdom authority would need to be considered on its own merits as to whether some form of disclosure should be made or ordered whether under FOIA or under similar analogous legislation or principles such as the UK data protection principles.”

As regards section 24, the Tribunal applied Kalman v IC and Department of Transport (EA/2009/0111) (recourse to the exemption should be “reasonably necessary” for the purpose of safeguarding national security), and Secretary of State for the Home Department v Rehman [2003] 1 A 153 (the threat to national security need not be immediate or direct).

Burt is also an example of a “mosaic effect” case: taken in isolation, the disputed information may appear anodyne, but the concern is with how it might be pieced together with other publicly available information.

Section 14(1) FOIA (vexatious requests)

Dransfield v IC (EA/2011/0079) is an example of the Tribunal overturning the Commissioner’s decision that section 14(1) had been engaged (for another recent example, see my post here). As with many such cases, the history and context were pivotal. Given that it is the request, rather than the requester, which must be adjudged to be vexatious, how should the context be factored in? The Tribunal gave this useful guidance:

“There is, however, an important distinction to be drawn between taking into account the history and context of a request, as in the cases referred to above, and taking into account the history and context of other requests made by a requester or other dealings between the requester and the public authority. The former is an entirely proper and valid consideration. The latter risks crossing the line from treating the request as vexatious, to treating the requester is vexatious. That line, in our view, was crossed in the present case.”

Robin Hopkins