Foreign, Commonwealth and Development Office v Information Commissioner and Others
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2021] UKUT 248 (AAC) |
| Year | 2021 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
2021 July 1, 2; Oct 1
Freedom of information - Disclosure - Exemption - Public authority refusing request for information in reliance on mutually exclusive statutory exemptions - Exemptions relied on in alternative to mask involvement or otherwise of security bodies - Whether public authority entitled to rely on exemptions in alternative - Whether breach of right to freedom of expression -
In response to each of three separate requests for information under the Freedom of Information Act 2000F1 the Foreign, Commonwealth and Development Office (“FCDO”) confirmed that it held information which fell within the scope of the request but refused to supply the information on the basis that it was exempt, under either the absolute exemption in section 23(1) (for information supplied by, or relating to, bodies dealing with security matters) or the qualified exemption in section 24(1) (for information whose exemption was required for the purpose of safeguarding national security). Although the FCDO accepted that sections 23 and 24 were mutually exclusive, it relied on them in the alternative in order to protect the interests of national security by “masking” the involvement or non-involvement of any security body. The Information Commissioner rejected the requesters’ complaints. The First-tier Tribunal allowed the requesters’ appeals, holding that the citing of sections 23 and 24 in the alternative was incompatible with the duty of a public authority under section 17(1)(b) to issue a refusal notice which specified the exemption on which it relied. The FCDO appealed. On the appeals one of the requesters contended that an interpretation of the 2000 Act which permitted the masking of an exemption would contravene the right to freedom of expression in article 10 of the Convention for the Protection of Human Rights and Fundamental FreedomsF2, which, so they argued, included a right of access to information.
On the FCDO’s appeals—
Held, allowing the appeals, (1) that the requirement in section 17(1)(b) of the Freedom of Information Act 2000 that a public authority, when refusing an information request by relying on an exemption, had to issue the requester with a notice which, amongst other things, specified the exemption in question was satisfied when the notice specified the section 23 exemption and the section 24 exemption in the alternative, even when the information held by the public authority in fact fell exclusively within either section 23 or section 24; that, in particular, the requirement in section 17(1)(b) to specify the exemption in question meant no more than citing or identifying that exemption and did not amount to an obligation to specify only a valid exemption; that, therefore, the requirement to specify the exemption in question did not preclude the use of masking by reliance on sections 23 and 24 in the alternative and a notice which stated that the public authority was relying on one of two exemptions in the alternative was “specifying” the exemption on which it relied, albeit with one other on which it did not; that, moreover, where Parliament had made clear the need to avoid impact on national security interests where section 23 security bodies were involved, and where both sections 23 and 24 were concerned with national security and their mutual exclusivity arose because the latter was a subsidiary “safety net” provision, the specification of sections 23 and 24 in the alternative had to be permitted to avoid adverse consequences of a significant nature; that it followed that the FCDO had been entitled to rely on sections 23(1) and 24(1) in the alternative, so as to protect the interests of national security by masking whether or not the information requested related to one of the security bodies listed in section 23(3); and that, accordingly, the First-tier Tribunal’s decision, being wrong in law on that issue, would be set aside (post, paras 8, 31, 40, 46, 49, 50, 55, 58, 62–63, 85).
(2) That further, there was no binding domestic authority which supported an expanded view of the right to freedom of expression under article 10 of the Human Rights Convention so as to include within it a right of access to information; that, in any event, article 10(1) rights were qualified and, in light of the carefully calibrated scheme of the 2000 Act, which contained nothing which was capable of lessening (as opposed to enhancing) any right to information contained in sensitive material, there was no disproportionate interference with article 10 rights; and that, therefore, no other interpretation of section 17(1)(b) of the 2000 Act was required in order to avoid a contravention of article 10 (post, paras 82, 85).
The following cases are referred to in the judgment of the Upper Tribunal:
All Party Parliamentary Group on Extraordinary Rendition v Information Comr
All Party Parliamentary Group on Extraordinary Rendition v Information Comr (EA/2011/0049-0051) (unreported) 3 May 2012,
All Party Parliamentary Group on Extraordinary Rendition v Information Comr
British Broadcasting Corpn v Sugar (No 2)
Comr of Police of the Metropolis v Information Comr
Corderoy v Information Comr
Department for the Environment, Food and Rural Affairs v Information Comr
Home Office v Information Comr
Information Comr v Malnick
Kalman v Information Comr [
Keane v Information Comr
Kennedy v Charity Commission
Lownie v Information Comr
Magyar Helsinki Bizottság v Hungary (Application No 18030/11) (
Moss v Information Comr
Oxford Phoenix Innovation Ltd v Information Comr
R (Fylde Coast Farms Ltd (formerly Oyston Estates Ltd)) v Fylde Borough Council
R (Quintavalle) v Secretary of State for Health
R v Shayler
R (Ullah) v Special Adjudicator
Savic v Information Comr
Secretary of State for the Home Department v Rehman
The following additional cases were cited in argument or referred to in the skeleton arguments:
AHK v Secretary of State for the Home Department
Al Rawi v Security Service
British Broadcasting Corpn v Sugar
Dorset Healthcare NHS Foundation Trust v MH
Kay v Lambeth London Borough Council
Manchester City Council v Pinnock
R v Barton
R (RJM) v Secretary of State for Work and Pensions
R (Youngsam) v Parole Board
Willers v Joyce (No 2)
APPEALS from the First-tier Tribunal (General Regulatory Chamber)
The requesters, Edward Williams, Professor Mark Wickham-Jones and Dr Andrew Lownie, appealed against decisions of the Information Commissioner rejecting their complaints about decisions of the public authority, the Foreign, Commonwealth and Development Office, refusing requests for certain information on the basis that it was exempt either under section 23(1) of the Freedom of Information Act 2000 (absolute exemption for information supplied by, or relating to, bodies dealing with security matters) or section 24(1) (qualified exemption for information required for the purpose of safeguarding national security), on the basis that, even though sections 23 and 24 were mutually exclusive, the authority was entitled to rely on them in the alternative in order to protect the interests of national security by “masking” the involvement or non-involvement of any security body. The requesters appealed to the First-tier Tribunal (General Regulatory Chamber) which, determining a preliminary issue on the appeals, on 13 November 2020 found the commissioner’s decisions to be wrong in law...
To continue reading
Request your trial
-
GM v Secretary of State for Work and Pensions (RP)
...panel in Foreign, Commonwealth and Development Office v Information Commissioner, Williams and Others (Sections 23 and 24) [2021] UKUT 248 (AAC); [2022] WLR 26. Lord Bingham described the proper approach to the task of statutory interpretation in the following terms in R (Quintavalle) v Sec......
-
Foreign, Commonwealth and Development Office v Information Commissioner, Williams and Others (Sections 23 and 24)
... v Information Commissioner, Williams and Others ( Sections 23 and 24 ) [2021] UKUT 248 (AAC) IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER Appeal No. GIA/388/2021 GIA/389/2021 & GIA/390/2021 On appeal from the First-tier Tribunal (General Regulatory Chamber) (Informati......