Home Office GIA 1722 2013
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 20 January 2015 |
| Neutral Citation | 2015 UKUT 27 AAC |
| Subject Matter | Information rights |
| Respondent | Information Commissioner and Cobain (Final Decision) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 1722 2013 |
| Appellant | Home Office |
FINAL DECISION BY THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The FINAL DECISION of the Upper Tribunal is to allow the appeal.
The INTERIM DECISION of the Upper Tribunal is confirmed, namely:
The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 30 January 2013, in relation to the Appellant’s appeal against Decision Notice FS50411501, involves an error on a point of law and is set aside.
The Tribunal’s decision involves an error of law because of (i) the inadequacy of the Tribunal’s reasons (the Home Office’s Ground (3)); and (ii) its failure to consider the exercise of the steps discretion (the Information Commissioner’s argument).
The Upper Tribunal further re-makes the Tribunal’s decision as follows:
RE-MADE DECISION OF THE FIRST-TIER TRIBUNAL
The Tribunal allows the Home Office’s appeal in part and substitutes the following Decision Notice in place of Decision Notice FS50411501 dated 23 May 2012.
SUBSTITUTED DECISION NOTICE
Dated: 20 January 2015
Public Authority: The Home Office
Address of Public Authority: 2 Marsham Street London SW1P 4DF
Name of Complainant: Mr Ian Cobain
(I) The number of Deprivation Orders made on counter-terrorist and/or national security grounds between 1st January 2006 and 12th July 2011 is exempt from disclosure under section 23(1) of FOIA.
(II) The number of Deprivation Orders, if any, made under section 40(2) of the British Nationality Act 1981 (as amended) on other grounds during the same period is not subject to the section 23(1) exemption or any other exemption.
Action required
In the exercise of his discretion under section 50(4) of FOIA, the Commissioner requires no steps to be taken.
Dated this 20th day of January 2015
This decision is given under section 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and section 58 of the Freedom of Information Act 2000.
REASONS
Introduction
1. This is the final decision by the Upper Tribunal on the Home Office’s appeal against the decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 30 January 2013. That in turn was a decision on the Home Office’s appeal against the Information Commissioner’s Decision Notice FS50411501. This final decision follows my interim decision in these proceedings dated 2 July 2014 (Home Office v Information Commissioner and Cobain (Interim Decision) [2014] UKUT 0306 (AAC).
2. In my interim decision I described this appeal in terms of an algebraic conundrum, namely x + y = z. This is a case in which the public authority is entitled to rely on an absolute exemption under the Freedom of Information Act 2000 (FOIA), so as not to disclose the number of orders (x) made by the Home Secretary depriving an individual of British citizenship between certain dates on either counter-terrorism (“CT”) grounds or other national security (“NS”) grounds. However, by the same token, FOIA provides that the requester (and the public at large) is entitled to know the number of deprivation orders (y) made over the same period on the basis that such action “was conducive to the public good for reasons unconnected with national security” (or “CPG” grounds). The sum of x and y is z (or (CT + NS) + CPG = z).
3. It is a matter of public record that z is 13. So what happens next? How do we resolve the conundrum that x must not be disclosed whereas the requester is entitled to know what y is? As I noted in my interim decision (at [6]), “it follows, given that the number represented by z is in the public domain, that if you are told what y is, you do not need to be an arithmetical genius to work out what x is. But at present all we know is that x and y both fall somewhere in the range from 0 to 13 and must sum to 13”.
The First-tier Tribunal’s decision
4. The Information Commissioner had issued a Decision Notice ruling that the disputed information was not personal data (contrary to the Home Office’s then argument) and accordingly was not exempt, so requiring its disclosure. The First-tier Tribunal allowed the Home Office’s appeal in part and substituted a new Decision Notice in the following terms:
“(I) The number of Deprivation Orders made on counter-terrorist and/or national security grounds between 1st January 2006 and 12th July 2011 are exempt from disclosure under section 23(1) FOIA.
(II) The number of Deprivation Orders, if any, made under section 40(2) of the British Nationality Act 1981 (as amended) on other grounds during the same period are not subject to the exemption and should be disclosed.”
The Upper Tribunal’s interim decision
5. The Home Office appealed the First-tier Tribunal’s decision. In my interim decision I allowed that further appeal (although not for all the reasons that the Home Office had argued). I dismissed its first ground of appeal concerned with the First-tier Tribunal’s approach to the question of whether all the disputed information “relates to” security bodies for the purposes of section 23(1) of FOIA (at [26]-[31]). The Home office did not press its second ground of appeal. However, I agreed with the Home Office’s third ground of appeal, namely that the First-tier Tribunal had failed to provide adequate reasons for its decision (at [33]-[35]). Furthermore, and more fundamentally as regards the substance of the issue, I agreed with the Information Commissioner’s submission (and the Home Office’s fall-back position) that the First-tier Tribunal had erred in law by failing to consider its (exceptional) steps discretion power under section 50(4) of FOIA (at [41]-[49]). Section 50(4) provides as follows:
“(4)Where the Commissioner decides that a public authority—
(a) has failed to communicate information, or to provide confirmation or denial, in a case where it is required to do so by section 1(1), or
(b) has failed to comply with any of the requirements of sections 11 and 17,
the decision notice must specify the steps which must be taken by the authority for complying with that requirement and the period within which they must be taken.”
6. I summarised my reasoning in the interim decision as follows:
“49. I return to the conundrum that lies at the heart of this appeal. The Tribunal found that the information represented by y was not exempt, and was therefore information which Mr Cobain was entitled to have communicated to him under section 1 of FOIA. On the other hand it also concluded that the information represented by x was exempt, and was therefore information which the Home Office was entitled not to communicate, by virtue of sections 2(2) and 23(1) of FOIA. There is no obvious mechanism in the Act itself for determining which right is to be given priority where (in light of the background circumstances) the enforcement of one will necessarily result in the other being denied. In my assessment, faced with that conundrum, I find that the Tribunal in this case erred in law by not considering whether or not to exercise its discretion under section 50(4) as to stipulating the steps to be taken (or not) as regards disclosure in the particular circumstances of this appeal.”
7. My interim decision was therefore in the following terms:
“The INTERIM DECISION of the Upper Tribunal is to allow the appeal.
The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 30 January 2013, in relation to the Appellant’s appeal against Decision Notice FS50411501, involves an error on a point of law and is set aside.
The Tribunal’s decision involves an error of law because of (i) the inadequacy of the Tribunal’s reasons (the Home Office’s Ground (3)); and (ii) its failure to consider the exercise of the steps discretion (the Information Commissioner’s argument).”
8. I then made directions for the further conduct of the appeal. These included a direction that the time limit for appealing against the substantive findings in the interim decision would not begin to run until the Upper Tribunal has made a final decision. In that context I note that the Home Office has stated its disagreement with the interim decision’s dismissal of its first ground of appeal (concerning ...
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