GI 150 2011, APG v Information Commissioner & The Ministry of Defence

CourtUpper Tribunal (Administrative Appeals Chamber)
JudgeThree-Judge Panel / Tribunal of Commissioners
Judgment Date15 April 2011
Neutral Citation[2011] UKUT 153 (AAC)
Docket NumberGI 150 2011
RespondentInformation Commissioner & The Ministry of Defence
Subject MatterInformation rights
AppellantAPG
H- -V1

Appeal Number:


[2011] UKUT 153 (AAC)



Upper Tribunal

(Administrative Appeals Chamber) Appeal Number: GI/150/2011

GI/151/2011

gi/152/2011

[2011] UKUT 153 (AAC)

On appeal from

Information Commissioner’s Decision Notices FS50200146 and FS50246244


INFORMATION RIGHTS


Heard at Field House

Determination Promulgated

On 27-31 January 2011



…………………………………


Before

THE HON MR JUSTICE BLAKE

ANDREW BARTLETT QC

ROSALIND TATAM


Between


ALL PARTY PARLIAMENTARY GROUP ON EXTRAORDINARY RENDITION

-and-

THE INFORMATION COMMISSIONER

-and-

THE MINISTRY OF DEFENCE
















Representation:


For APG Tom Hickman, instructed by Hogan Lovells International LLP, both acting pro bono

For IC: Ben Hooper, instructed by the Information Commissioner

For MOD; Charles Bourne, instructed by the Treasury Solicitor


Subject matter:

Freedom of Information Act 2000 – cost of compliance and appropriate limit – time for compliance – refusal notice – exemption where cost of compliance exceeds appropriate limit - late reliance on exemptions – code of practice – advice and assistance - qualified exemptions – legal professional privilege – defence – international relations – public interest test - absolute exemptions - information supplied by or relating to bodies dealing with security matters – personal data

Data Protection Act 1998 – personal data – processing - data protection principles – whether first data protection principle satisfied - whether Schedule 2 condition satisfied – condition 4 (vital interests) – condition 5(a) (administration of justice) – condition 5(aa) (exercise of functions of a House of Parliament) - condition 5(d) (exercise of public functions) – condition 6(1) (necessary for legitimate interests of data controller or third parties except where processing unwarranted by reason of prejudice) - whether disclosure necessary for establishing legal rights


Cases:

Al-Saadoon v United Kingdom, Case 61498/08 (2010) 51 EHRR 9

Campaign Against the Arms Trade v Information Commissioner and Ministry of Defence EA/2006/0040 (26 August 2008)

Chahal v United Kingdom, Case 22414/93 (1996) 23 EHRR 413

Commissioner of Police of the Metropolis v Information Commissioner EA/2010/0006 (9 July 2010)

Common Services Agency v Scottish Information Commissioner [2008] UKHL 47; [2008] 1 WLR 1550

Corporate Officer of the House of Commons v Information Commissioner [2008] EWHC 1084 (Admin) (on appeal from EA/2007/0060-0063, 0122-0123 and 0131)

DEFRA v Information Commissioner and Simon Birkett [2011] UKUT 39 (AAC)

Department for Business Enterprise and Regulatory Reform v O'Brien [2009] EWHC 164 (QB)

Department of Health v Information Commissioner and Pro-Life Alliance EA/2008/0074 (15 October 2009)

Durant v Financial Services Authority [2003] EWCA Civ 1746

Information Commissioner v Home Office [2011] UKUT 17 (AAC)

Office of Government Commerce v Information Commissioner [2008] EWHC 774 (Admin); [2010] QB 98

Naseer v Secretary of State for the Home Department SC/77/80/81/82/83/09 (18 May 2010)

R (on the application of Al-Saadoon) v Secretary of State for Defence [2008] EWHC 3098 (Admin)

R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin); [2010] 1 CMLR 21

R (on the application of Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin); [2011] ACD 11

R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No.1) [2008] EWHC 2048 (Admin); [2009] 1 WLR 2579

R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No.2) [2010] EWCA Civ 65 and 158; [2011] QB 218

R v Secretary of State for the Home Department, ex parte Jeyeanthan [2000] 1 WLR 354 (CA)

R v Soneji [2005] UKHL 49; [2006] 1 AC 340

Roberts v Information Commissioner EA/2008/0050 (4 December 2008)

Saadi v Italy, Case 37201/06 (2009) 49 EHRR 30

Secretary of State for the Home Department v Rehman [2001] UKHL 47; [2003] 1 AC 153

Urmenyi v Information Commissioner and London Borough of Sutton EA/2006/0093 (13 July 2007)





DECISION OF THE UPPER TRIBUNAL


Request 1 – memoranda of understanding with the US – GIA/150/2011 (FS50200146)

The Tribunal allows the appeal by the All Party Parliamentary Group on Extraordinary Rendition (APG) to the extent that it determines that the Ministry of Defence is not entitled to rely on the FOIA s12 exemption. Subject to further submissions, there will be a further hearing to determine whether the Ministry of Defence is entitled to rely on the FOIA s27 exemption.


Request 2 – detention practices review – GIA/150/2011 (FS50200146)

APG’s appeal is allowed to the limited extent defined in the substituted Decision Notice and the closed annex to this decision.


Request 3 – policy on capture – GIA/151/2011 (FS 50246244)

APG’s appeal is dismissed.


Request 4 – detainee information – GIA/151/2011 and GIA 152/2011 (FS 5024644)

In relation to-

[5] All information relating to any individuals who were detained or captured by UK solders operating within the joint US/UK task force, referred to by Ben Griffin [ie, in Iraq].

[6] Please state how many of these individuals were subsequently transferred to Guantanamo Bay Detention Camp, Bagram Theatre Internment Facility, Balad Special Forces Case, Camp Nama BIAP or Abu Ghraib Prison or any other detention facility in third countries. Please state how many of these individuals following capture were taken to: (i) a detention facility under the authority and control of British Forces; (ii) a detention facility under the joint authority and control of British Forces; (iii) any other detention facility (please specify); (iv) more than one detention facility, or (v) no detention facility.

[7] In respect of each individual case please provide as much information as possible, including: (a) the date of detention and/or capture; (b) the date of transfer to US authority and control; (c) the location of such transfer; (d) subsequent known places of detention and dates thereof.

[8] Please explain what you have treated as detention and capture for the purposes of answering these questions.

[9] The same request on the same terms as above, in relation to all other individuals that have been detained or captured jointly by British Forces and forces of another country in Iraq or Afghanistan. Please make clear in each case which other force was acting jointly with UK Forces.

The information referred to in items [6] and [7] above, which relates to Iraq, is protected by FOIA s23 (Special Forces). The appeal by the MOD in relation to item [6] is allowed and APG’s appeal in relation to item [7] is dismissed.


APG’s appeal in relation to the corresponding information for Afghanistan, items [8] and [9], is allowed to the limited extent defined in the substituted Decision Notice and the closed annex to this decision.

MOD’s appeal concerning the application of FOIA s40 (personal data) is dismissed.


SUBSTITUTED DECISION NOTICE


Dated 15 April 2011

Public authority: Ministry of Defence

Address: Main Building, Whitehall, London SW1A 2HB


Name of Complainant: All Party Parliamentary Group on Extraordinary Rendition (chairman: Andrew Tyrie MP)


The Commissioner’s decisions FS50200146 and FS50246244 stand, save as varied below.


The Substituted Decision in relation to FS50200146

For the reasons set out in the Tribunal’s determination, the substituted decision in relation to the request for information contained in the review of detention practices in Iraq and Afghanistan is as follows:

The Ministry of Defence was entitled to rely on the exemption in FOIA s23 (Special Forces) in relation to certain passages.

Section 26(1)(b) (prejudice to capability of forces) was not engaged.

Section 27 (international relations) was engaged and can be relied on in relation to some parts of the Review but not to the extent upheld by the Commissioner

Further reasoning is set out, and further detail of the application of exemptions to parts of the review of detention practices is given, in the closed annex.


Note: For the reasons set out in the Tribunal’s determination, while the Tribunal finds that the MOD was not entitled to rely on the s12 (cost) exemption in relation to the request concerning memoranda of understanding the proper disposal of that request cannot be determined until there has been further consideration of the potential application of the exemption in FOIA s27 (international relations) to the subject matter of the request so far as concerns understandings between the United Kingdom and the United States of America.


Action Required in relation to FS50200146

The Ministry of Defence shall disclose to the complainant within 28 days from promulgation of this decision those parts of the...

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