EXTRAORDINARY RENDITION

Robin Hopkins alerted readers recently to the FTT’s decision on a set of requests made by the All Party Parliamentary Group on Extraordinary Rendition (“APPGER”) to the Foreign & Commonwealth Office: APPGER v Information Commissioner and the Foreign and Commonwealth Office EA/2011/0049-0051.

The Tribunal describes  APPGER as concerned in this case to get to the truth of the UK’s involvement (if any) in extraordinary rendition, which is the extra-judicial transfer (usually across state boundaries or between authorities within them) of a detained person for the purpose of interrogation (often in circumstances where they face a real risk of torture). APPGER’s requests were considered together and related to various individuals and concerns:

  1. Mr Bisher al-Rawi and Mr Jamil el-Banna were detained under the Terrorism Act at Gatwick Airport in November 2002 but, having been held and questioned for a few days, were released and flew to the Gambia. There were some communications between the UK and US authorities about the men. They were arrested by the Gambian authorities on arrival in the Gambia, transferred into US custody, flown to Afghanistan and then detained in Guantanemo Bay from 2003 until 2007. Some of APPGER’s requests were an attempt to find out more about the UK’s involvement in the rendition of these men.
  2. Mr Binyam Mohammed was seized in Pakistan in 2002, rendered to Morocco, transported to Afghanistan and then transferred to Guantanemo Bay where he was held from 2004 until his charge in 2008. The US Government did not challenge his account of brutal treatment. Some of the APPGER requests relate to the FCO’s knowledge of the treatment of Mr Mohammed.
  3. On 4 February 2009, the Divisional Court concluded that it was not in the public interest to disclose information in  passages redacted from a judgment relating to Mr Mohammed because of the continuing threat by the US Government in a letter dated 21 August 2008 that disclosure was likely to result in serious damage to US national security and could harm existing intelligence-sharing arrangements between the US and UK Governments. The media published allegations that the letter had been solicited by the FCO from the US State Department. Some of APPGER’s requests were for information relevant to these allegations.

The FCO had provided some information in response to APPGER’s requests. In relation to other information, it confirmed that it held information falling within the scope of the requests but relied on exemptions in sections 23(1), 27(1)(a), 31(1)(a), 31(1)(b), 32(1), 35(1)(a), 35(1)(b), 40(2) and 42(1) FOIA. In relation to parts of the requests, the FCO claimed that the duty to confirm or deny whether it held the information did not apply by virtue of section 23(5) and 24(2) FOIA.

Turning to the exemptions:

Section 23 – absolute exemption for information directly or indirectly supplied by the security services or relating to the security services

The Tribunal considered the test for information falling within the scope of section 23(1). This provides for an absolute exemption for information which was directly or indirectly supplied to the public authority by a specified body (e.g. the security services) or if it relates to any of those specified bodies. Looking at the question of supply, the Tribunal found that it is a question of fact on the balance of probabilities whether information had been directly or indirectly supplied by the security services to the FCO and it was not a requirement that the security services had intended to supply the information to the FCO. As for information relating to the security services, the Tribunal found that it had to apply a broad but purposive approach and decide whether as a matter of fact on the balance of probabilities the content of the information was ‘something to do with’ the security services (subject to a remoteness test). The Tribunal found that the FCO was entitled to rely on section 23(1) in this case and it commented that the FCO could have claimed the exemption for even more information than it had done.

APPGER then submitted that this interpretation of section 23(1) resulted in a breach of the right to receive information in Article 10 ECHR. Regular readers of this blog will be familiar with the arguments that have been run in the domestic courts (see posts here, here and here). On the current authorities, there would be no breach of Article 10 ECHR even though section 23(1) FOIA is an absolute exemption. However, APPGER asked the Tribunal to stay its decision on this issue, given that issue will be considered by the Supreme Court again in the Kennedy v Charity Commission appeal. The Tribunal refused to stay the issue in this case; it found that it was bound by the Court of Appeal decision in Kennedy (applying the Supreme Court decision in Sugar) and that APPGER could preserve its position by appealing to the Upper Tribunal. It commented that in any event, the absolute exemption in section 23(1) FOIA was justified under Article 10(2).

The Tribunal commented on the Information Commissioner’s approach to this issue, given that he had not seen the disputed information whereas the Tribunal had spent two days establishing the facts. The Tribunal commented that it should not instruct the Commissioner how, in general, he should conduct his investigations but it noted that it had some reservations and it recommended that the Commissioner’s office should take note of how the Tribunal had had to establish the facts in this appeal.

Sections 23 and 24 – the duty to confirm or deny

The FCO had refused to confirm or deny whether it held some of the information requested. It followed its usual approach of relying on both section 23(5)  and also on section 24(2) FOIA. Section 23(5) is an absolute exemption which applies where complying with the duty to confirm or deny that information is held would involve the disclosure of information which was directly or indirectly supplied to the FCO (in this case) by the security services or information which relates to the security services. Section 24(2) is a qualified exemption where information did not fall within section 23(1) and where an exemption from the duty to confirm or deny was required for the purposes of safeguarding national security.

The FCO recognised that it could not rely on this exemption if it had already been officially confirmed in the public domain that the security services were involved in relation to a particular request. APPGER challenged the FCO’s reliance on section 23(5) FOIA in this case. The Tribunal considered what information had been officially confirmed in the public domain and found that the public information relied on was generally broader or different to the scope of the request or said nothing about what had been held by FCO as at the date of the request.

APPGER also challenged the FCO’s dual reliance on section 23(5) and section 24(2). APPGER argued that the FCO had to decide which of these applied, given that section 24(2) only applied if the information in question was not exempt by virtue of section 23(1). The Tribunal rejected this argument and found that the FCO was entitled to refer to both sections when refusing to confirm or deny whether it held information. The provisions were not mutually exclusive.

Section 27 – engagement of the qualified exemption for international relations

The FCO relied on the exemption in section 27(1) for information if its disclosure would or would be likely to prejudice relations between the UK and any other State. The Tribunal adopted the approach in Hogan and Oxford City Council v Information Commissioner [2011] 1 Info LR 588, EA/2005/0026, EA/2005/0030Gilby v Information Commissioner and FCO EA/2007/0071 and APPGER v IC and MoD [2011] UKUT 153 (AAC). The exemption will be engaged if there is a real and significant risk (even if it is less than a probability) that disclose would prejudice relations with another State, in the sense of impairing relations or their promotion or protection. Appropriate weight needs to be attached to evidence from the executive about the prejudice likely to be caused. The Foreign Secretary has unrestricted access to full and open advice from his experienced advisors and is accordingly better informed and has far more relevant experience than any judge for this purpose. In this case, the Tribunal had heard evidence from a member of the Diplomatic Service who was a Senior Civil Servant and there was no evidence to seriously contradict his view about the prejudice which would (in some cases) or would be likely to (in other case) prejudice international relations (notwithstanding the clear and strong public interest in issues around extraordinary rendition).

Section 35 – engagement of the qualified exemption for the formulation and development of Government policy etc.

The Tribunal then considered the qualified exemption where information held by a Government department relates to the formulation or development of Government policy, Ministerial communications, the provision of advice by Law Officers or the operation of any Ministerial private office. The Tribunal considered the appropriate weight to be given to each of these four categories of information.

Section 42 – engagement of the qualified exemption for legal professional privileged information

The Tribunal found that the FCO had properly applied this exemption and it commented that the FCO could in fact have claimed that more information was subject to legal professional privilege.

The balance of the public interest

The Tribunal considered the balance of the public interest in relation to the information which engaged one or more of the qualified exemptions. It did not have to apply any public interest test to the information which engaged the absolute exemptions in section 23(1) or section 23(5).

The Tribunal found that there was a very strong public interest in transparency and accountability around the application of the Government’s public policy opposing extraordinary rendition. This interest was heightened where Ministers have had to correct earlier statements made to Parliament about the application of the policy and where there were claims that US extraordinary rendition had helped to foil terrorist plots in the UK. There was a particularly weighty public interest in knowing whether the Government has been involved, and if so the extent of that involvement, in the detention of British nationals and residents, their rendition to Guantanamo Bay and the attempts by the Government to secure their release. There was a strong public interest in knowing whether there was any impropriety by the UK Government in relation to the letter of 21 August 2008 to the Divisional Court.

On the other hand, there was a very strong public interest in the maintenance of the ‘control principle’ governing the use of secret intelligence information supplied to the UK through security and diplomatic channels, so as not to prejudice the supply of intelligence forming part of a ‘mosaic’ enabling a picture of potential terrorist activity, or threats to national security or UK interests abroad to be built up and countered. There was an even weightier public interest where the US was involved, as the UK’s most important bilateral ally and provider of much security information. There was a public interest in protecting from disclosure deliberations within Government on the formulation and development of policy. The strength of that interest depended on whether there was a need to maintain a safe space for such deliberations. There was a weightier public interest for protecting Ministerial communications in relation to detainees at Guantanamo Bay, given the sensitivity of the matter in diplomatic relations with the US. There was a strong public interest in maintaining the expectations of confidence for diplomatic exchanges. There was an inherently strong public interest in maintaining legal professional privilege including Law Officers advice, which was particularly weighty when litigation was continuing on closely related matters.

In relation to the requests involving international relations, the Tribunal found that the public interest in maintaining the exemption outweighed the public interest in disclosure. The public interest went to the willingness of the US to share with the UK all types of secret intelligence material. The reasonableness of the US attitudes was not part of the balancing exercise; it was the fact of the existence of those attitudes which mattered. The Tribunal had considered in closed session whether there was any evidence of impropriety by the FCO in relation to the letter of 21 August 2008 to the Divisional Court and found that there was no such evidence. In relation to other information, the Tribunal satisfied that there was nothing which would add to the public knowledge of the mistreatment of Mr Mohamed. If there had been new information, this would have weighed significantly in striking the balance, but there was not.

In relation to the requests involving legal professional privilege or Law Officers advice, the Tribunal found that the balance of the public interest was in favour of maintaining the exemptions in sections 42 and section 35(1)(c). At the time of the requests, civil claims were being pursued against the Government by a number of former detainees. It would undermine the relationship between lawyer and client if privileged material was released in this case. Counsel for the Government are when necessary provided with access to highly confidential information in order to provide the most comprehensive advice. The advice requested in this case could not reasonably be regarded as old or no longer live.

In relation to the requests involving the formulation and development of Government policy, the Tribunal found that the balance of the public interest was in favour of maintaining the exemption. It took into account that the policy regarding the release and return of detainees in Guantanamo Bay was very much live at the time of the requests, that policy continued to develop and the disputed information included drafts which were not necessarily the Government’s final position. There was a very strong public interest in the Government having a safe space to develop this policy.

Decision

The Tribunal upheld the Commissioner’s decisions, except where the Commissioner conceded to points raised by the FCO in a cross-appeal and except in relation to four documents where no exemption applied.

Finally, this post could not omit  mentioning that11KBW’s chief Panopticonner Robin Hopkins represented the Information Commissioner, Joanne Clement (11KBW) acted pro bono to represent APPGER, and Karen Steyn (also of 11KBW) and Julian Blake represented the FCO.

Rachel Kamm, 11KBW

REFUSING STUDENT VISAS DUE TO WMD CONCERNS: NEW NATIONAL SECURITY DECISION

Mahmud Quayum (on behalf of the Camden Community Law Centre) v IC and FCO (EA/2011/0167) is the second First-Tier Tribunal decision in recent weeks on section 24 of FOIA (national security). The other is Summers, on which see Anya’s post here. In both cases, the Tribunal has found the exemption to be engaged and the public interest to favour its maintenance.

Quayum concerned the Academic Technology Approval Scheme. The Scheme, introduced in November 2007, aims to prevent the spread of knowledge and skills useful in the proliferation of weapons of mass destruction. All students from outside the EEA and Switzerland who wish to embark on certain designated post-graduate courses must apply to the FCO’s Counter Proliferation Department for an ATAS certificate before they apply for a student visa. The requester expressed concern that, in some cases, the applicant’s nationality could count decisively against them in a manner that breached equalities legislation. He requested details of refused applications, broken down by applicants’ nationalities and proposed study subjects. He argued that unsuccessful applicants lacked adequate rights of appeal, that much information about the scheme (as well as about countries who were a particular concern from a WMD perspective) was already public, and that non-disclosure would foster “an atmosphere of secrecy over openness”. As usual with s. 24 cases, those arguments went both to the engagement of the exemption and to the public interest.

The Tribunal found those arguments insufficient in both respects. The Equality Act 2010 contains an exemption for national security matters (s. 192). While there was no formal right of appeal, unsuccessful applicants could seek a review of refusals; this dispelled concerns about a “surreptitious mechanism”. The information in the public domain was materially different to that which had been requested. The Tribunal recognised that disclosure would assist in the transparency of an arguably controversial Scheme, but found this to be outweighed by the risk of disclosure undermining the effective operation of an important national security measure, including by discouraging universities (who risked being identified from the disputed information) from co-operating with the Scheme.

Regarding the approach to s. 24, the following extracts from the decision are worth noting:

“… national security is predominantly the responsibility of the government and its various departments. The Second Respondent has contended, correctly in the Tribunal’s view, that the Tribunal must at least initially afford due weight to what is regarded as the considered view of such departments, even though the exemption entails an element of public interest and the balancing test. In particular, and again the Tribunal endorses this approach, particular weight should be afforded to the views of the government or its appropriate department with regard to its or their assessment of what is required to safeguard national security in any given case and the prejudice likely to result from disclosure” (paragraph 43), and

“.. the Tribunal is equally firmly of the view in accepting the contention advanced by the Second Respondent that the particular weight to be applied in favour of maintaining the exemption will be proportionate to the severity of the perceived threat. Thus, to take the point which is in issue here it can with some justification, in the Tribunal’s judgment, be argued that since the proliferation of WMD would constitute one of the severest threats to the security of the state, given its potential wide-ranging effect, so must the countervailing public interest in disclosure be a weighty one, such that disclosure becomes a viable option. The Tribunal stresses that nothing that has just been said in any way converts the present exemption into an absolute one” (paragraph 44).

Finally – as is often the case of late – the requester sought to rely on Article 10 ECHR. Interestingly, the Tribunal in this case observed that Article 10 would make no difference to the analysis, given the checks and balances built into the meaning of s. 24 and the public interest test.

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

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

Recent ICO decisions on Freedom of Information

In Decision Notice FS50139215, issued this week, the Commissioner has ordered the Met Police to disclose particular CCTV footage showing the movements of the perpetrators of the terrorist attacks on London on 7 July 2005.

The Met had argued that the footage was exempt from disclosure under sections 30(1)(a) (information held for the purposes of an investigation) and 38(1)(a) (health and safety) of FOIA.

The Commissioner accepted that the exemption in section 30(1)(a)(i) and (ii) of FOIA was engaged. However, he rejected arguments that such disclosure would render meaningful police investigation impossible and that, pending any trial, the CCTV footage should only be disclosed to the CPS, the Courts or other bodies involved in the investigative process.

The Commissioner’s comments on the public interest in full disclosure of any material relating to the 7/7 bombings are of particular interest. He noted, for example, that whilst there had already been widespread media coverage in relation to the bombings, “full disclosure in order to avoid any suspicion of ‘spin’ or ‘cover up’ will continue to be in the public interest regardless of the volume of related information that has previously been disclosed”. On similar lines, he observed that in circumstances in which the 7/7 attacks had been the subject of conspiracy theories, the fact that “disclosure would presumably support the official account of the time line and basic facts of the attacks and reduce any perceived lack of transparency about how this account was formed, along with removing any suspicion of ‘spin’ or ‘cover up’” was a valid public interest factor in favour of disclosure.

The Commissioner rejected the Met’s claim that the exemption under section 38(1)(a) of FOIA (health and safety) was engaged at all, emphasising that the arguments advanced by the Met on this point had lacked detail in relation to the specific CCTV footage in question. He also concluded that, whilst not cited by the Met, the personal data exemption in section 40(2) of FOIA was engaged in respect of footage from which individuals other than the perpetrators of the attacks could be identified. The Met must redact this information, such as by pixellation, before the footage is disclosed.

In other Decision Notices issued this week, the Commissioner has held that:

  • Oxford, Cambridge and Manchester Universities and Kings College and University College, London must disclose information relating to primate research. A complainant had sought such information from a number of universities, including information as to the numbers and species of primates referred to in returns to the Home Office, and as to current research. The Commissioner held that the exemptions relied upon by the universities were not engaged (variously, sections 38 (health and safety), 40 (personal data) and 43 (commercial interests) of FOIA).

 

  • The Department of Health must disclose civil servants’ submissions to Ministers in relation to proposed variations to consultants’ contracts as part of its ‘modernising medical careers’ initiative. Whilst the exemption in section 35(1)(a) (policy) of FOIA was engaged, the public interest in maintaining the exemption did not outweigh that in disclosure (FS50151464).

 

  • In contrast, the FCO was entitled to refuse to confirm or deny whether it held particular information as to identification of a voice heard in the video showing the beheading of Ken Bigley in Iraq in 2004. The FCO successfully relied upon sections 23(5) (information supplied by or relating to the security services) and 24(2) (national security) of FOIA (FS50188323).