All Party Parliamentary Group on Extraordinary Rendition GIA 2230 2012
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 02 July 2015 |
| Neutral Citation | 2015 UKUT 377 AAC |
| Subject Matter | Information rights |
| Respondent | Information Commissioner and Foreign and Commonwealth Office |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 2230 2012 |
| Appellant | All Party Parliamentary Group on Extraordinary Rendition |
[2016] AACR 5
(All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner and Foreign and Commonwealth Office
[2015] UKUT 377 (AAC))
Mr Justice Charles CP GIA/2230/2012
Mr Justice Mitting
Judge Wikeley
2 July 2015
Freedom of information – proper construction and application of section 23 – public interest timing point in context of section 27 – proper application of public interest balancing test in respect of national security
The All Party Parliamentary Group on Extraordinary Rendition (APPGER) had made three Freedom of Information Act (FOIA) requests about the detention of two British residents and the extraordinary rendition of a third. The Foreign and Commonwealth Office (FCO) refused some of the information on the basis of exemptions in FOIA. The Information Commissioner (the Commissioner) mainly upheld the FCO’s response and the First-tier Tribunal (F-tT) dismissed APPGER’s subsequent appeals. APPGER appealed to the Upper Tribunal (UT). The UT, following an initial hearing, issued two interim decisions before holding a second hearing to consider the remaining matters. The remaining matters before the UT concerned (1) the proper construction of section 23 of FOIA; (2) the proper application of section 23 to the information in the documents; (3) the public interest timing point in the context of section 27; (4) the proper application of the public interest balancing test under section 27; and (5) whether a particular document should be released when the relevant information had already been disclosed.
Held, disallowing these aspects of the appeal, that:
- the proper construction of section 23 of FOIA placed no obligation on the public authority to specify to the requester which specific limb of the section 23(1) test was relied upon in respect of each piece of disputed information (although such justification may be required to the Commissioner and, on appeal, to the F-tT or the UT) (paragraph 12)
- the UT rejected the submission that for the purposes of section 23(1) information “relates to” a security body only if the information has that body as “its focus, or main focus” or an equivalent connection to that body. Concerns that an overly generous approach to this test might involve disputed information being exempted merely because it had been copied to a section 23 body were considered, and a way of benchmarking a decision on the application of section 23(1) was identified (paragraphs 20 to 21)
- the exemption in section 27 was qualified and the public interest balancing test therefore applied. The issue of principle that arose was the date at which the test was to be applied. Following the Supreme Court’s powerful support for the orthodox approach, the timing of the assessment was the date of the public authority’s refusal (not the date of the Commissioner’s Decision Notice or the tribunal hearing): R (Evans) v Attorney-General [2015] UKSC 21 (paragraphs 48 to 49);
- the proper application of the public interest balancing test involved an evaluation of different and competing interests including the actions of the security services and the product of their work. The key to the test involved looking at the value of the benefits advanced against the gravity of the harm that would otherwise arise if the Intelligence Information Sharing Risk materialised. In the instant case the UT concluded that the public interest in avoiding the gravity of the harm outweighed the value of those benefits (paragraphs 107 to 109);
- the appellant’s argument that a particular document should be released was misconceived, given that the basic principle was that FOIA gave a (qualified) right to information, not to particular documents. That fundamental distinction between the record and the information contained within it had been confirmed by Court of Appeal: The Independent Parliamentary Standards Authority v ICO & Leapman [2015] EWCA Civ 388; [2015] AACR 37 (paragraph 124).
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Mr Timothy Pitt-Payne QC and Ms Joanne Clement, instructed by Hogan Lovells International LLP, appeared for the appellant.
Mr Robin Hopkins, instructed by the Solicitor to the Information Commissioner, appeared for the first respondent.
Ms Karen Steyn QC and Mr Julian Blake, instructed by the Treasury Solicitor, appeared for the second respondent.
FINAL DECISION
The FINAL DECISION of the Upper Tribunal is to allow the appeal in part.
The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 03 May 2012, in relation to the appellant’s appeals against the Information Commissioner’s Decision Notices FS50262409, FS50279042 and FS5026953, involved an error on a point of law (in relation to Ground 4 of the original grounds of appeal). The appeal was therefore allowed in part in our Interim Decision of 11 November 2013.
ON OUR RECONSIDERATION of the appeals in relation to specific information requests that remained unresolved as a result of our Interim Decision
Those appeals are all dismissed because:
(1) Documents 12, 13, 14, 16, 30 and 52 are all subject to the absolute exemption in section 23(1) of FOIA.
(2) It is not in the public interest to disclose the documents that are subject to the qualified exemption in section 27 of FOIA (documents 59 and 78).
(3) The information in document 61 has already been disclosed.
This decision is given under section 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007
REASONS
Introduction
1. The All Party Parliamentary Group on Extraordinary Rendition (“APPGER”) is a cross-party association of MPs, established in 2005 (by Mr Andrew Tyrie MP) in response to allegations that the UK Government had been involved in the US extraordinary rendition programme. As our Interim Decision noted, “extraordinary rendition is a euphemism for an extraordinary practice, namely the extra-judicial transfer of detainees, typically individuals ‘of interest to the security services’, and usually across state boundaries or between different authorities within them for the purposes of interrogation, often in circumstances where those individuals face a real risk of torture” (APPGER v IC and FCO [2013] UKUT 560 (AAC) (“our Interim Decision”) at [3]).
2. APPGER’s investigations into this practice have included making a series of requests under the Freedom of Information Act 2000 (FOIA) to Government departments and, where disclosure of information has not been forthcoming, pursuing complaints to the Information Commissioner and onward appeals to the First-tier Tribunal.
3. In May 2008 and February 2009 APPGER made three batches of FOIA requests. The first batch concerned the detention of two British residents, Mr Bisher al-Rawi and Mr Jamil el-Banna, in The Gambia and any UK involvement in their subsequent extraordinary rendition to Guantanamo Bay via Afghanistan. The second and third batches of requests related to information about any UK involvement in the extraordinary rendition of a third British resident, Mr Binyam Mohamed. The Foreign and Commonwealth Office (“the FCO”) released some but not all of the information requested. The Information Commissioner (“the Commissioner”), for the most part at least, upheld the FCO’s reliance on exemptions in FOIA in response to these requests (see eg Decision Notice FS50262409). The First-tier Tribunal (“F-tT”), again for the most part, dismissed APPGER’s appeals against the three Decision Notices issued by the Commissioner (EA/2011/0049-0051). With the permission of the F-tT, APPGER appealed to the Upper Tribunal on five grounds (Interim Decision at [28]).
The course of the Upper Tribunal proceedings
4. The Upper Tribunal (Charles J, Burnett J and Judge Wikeley) first held a substantive hearing of APPGER’s appeal between 1 and 4 July 2013. This resulted in our Interim Decision (see [1] above). Grounds 1 and 2 having been stayed, the Upper Tribunal dismissed grounds 3 and 5 but allowed the appeal on ground 4, namely that the F-tT had erred in law in its approach to the balancing exercise under section 27(1) of FOIA. It was agreed on all sides that the Upper Tribunal should re-make...
To continue reading
Request your trial