Keane GIA 3119 2015
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 17 October 2016 |
| Neutral Citation | 2016 UKUT 461 AAC |
| Subject Matter | Information rights |
| Respondent | The Information Commissioner and The Home Office and The Commissioner of Police of the Metropolis |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 3119 2015 |
| Appellant | Keane |
DECISION BY THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to dismiss the appeal.
The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 13 August 2015 does not involve an error on a point of law. The appeal is therefore dismissed.
This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.
REASONS
Prologue
The Assistant Commissioner, with his eyes lowered on the rag of blue cloth, waited for more information. As that did not come he proceeded to obtain it by a series of questions propounded with gentle patience. Thus he acquired an idea of the nature of Mr Verloc's commerce, of his personal appearance, and heard at last his name. In a pause the Assistant Commissioner raised his eyes, and discovered some animation on the Chief Inspector's face. They looked at each other in silence.
“Of course,” said the latter, “the department has no record of that man.”
“Did any of my predecessors have any knowledge of what you have told me now?” asked the Assistant Commissioner, putting his elbows on the table and raising his joined hands before his face, as if about to offer prayer, only that his eyes had not a pious expression.
“No, sir; certainly not. What would have been the object? That sort of man could never be produced publicly to any good purpose. It was sufficient for me to know who he was, and to make use of him in a way that could be used publicly.”
“And do you think that sort of private knowledge consistent with the official position you occupy?”
“Perfectly, sir. I think it's quite proper. I will take the liberty to tell you, sir, that it makes me what I am – and I am looked upon as a man who knows his work. It's a private affair of my own. A personal friend of mine in the French police gave me the hint that the fellow was an Embassy spy. Private friendship, private information, private use of it – that's how I look upon it.”
Joseph Conrad, The Secret Agent (1907), ch.6.
The history of Ireland, national security and Government secrecy
1. There is much still to be written about the history of Ireland since the late nineteenth century. Many events in this troubled era have taken place in the full glare of publicity. Other events have taken place in the shadows. One of the historian’s roles is to shine a light into those dark corners of history.
2. The National Archives (TNA, formerly the Public Record Office) at Kew houses files from various government departments that have been retained as having some historical interest (although by no means everything of significance has found its way to Kew: see Ian Cobain, The History Thieves: Secrets, Lies and the Shaping of a Modern Nation (September 2016, Portobello Books)). Some of the Kew files contain information about the use by the police and security services of paid informants in Irish republican organisations at a time when British rule extended to the whole island of Ireland.
3. How far should historians be able to access such files today, more than 100 years after the files were current? Should there effectively be open access? Or are there some details in those files which should still be withheld from researchers, a century on? If so, on what basis should that be? These are questions which have come before the First-tier Tribunal (Information Rights) in the General Regulatory Chamber on more than one occasion.
4. In Metropolitan Police v Information Commissioner [2008] UKIT EA 2008 0078 (“the Butterworth case”) a historian (Mr Butterworth) sought access to Special Branch files from the period from 1888 to 1912 dealing with its investigations into the activities of European anarchists. In a sense, the researcher wanted to inspect the official paperwork underpinning the type of police work depicted in Joseph Conrad’s The Secret Agent. The First-tier Tribunal issued what was, in effect, a consent judgment, ordering the Metropolitan Police to disclose the files in question. However, the Tribunal also directed that the names of any individuals referred to should be redacted before the files were released.
5. In Marriott v Information Commissioner [2011] UKFTT EA 2010 0183 another First-tier Tribunal concluded that Metropolitan Police records from the same era, including details of informants, and relating to the ‘Jack the Ripper’ murders, should not be disclosed. That Tribunal decided unanimously that the records fell within the scope of the qualified exemption in section 30(2) (information held for the purposes of an inquiry) of the Freedom of Information Act 2000 (FOIA). The Tribunal also held (but only by a majority) that the public interest in maintaining the exemption outweighed the public interest in disclosure. That decision was not appealed to the Upper Tribunal.
6. In the present case – Keane v Information Commissioner and Others [2015] UKFTT EA 2015 0013 GRC – a different First-tier Tribunal, again by a majority decision, decided that the details of paid informants referred to in Metropolitan Police records and involved in Irish secret societies in the period from 1890 to 1910 should not be disclosed. The files were accordingly broadly contemporaneous with those in both the Butterworth case and Marriott, albeit the context was different. Disclosure of the names of paid informants was resisted on the grounds of both national security (FOIA, section 24(1)) and health and safety (FOIA, section 38(1)).
7. If nothing else, these three first instance decisions demonstrate how finely balanced such decisions may be and how reasonable people (and especially reasonable judicial office-holders) may reasonably differ. In that context it is important to remember that an appeal to the Upper Tribunal is not a full merits review. The First-tier Tribunal, of course, must conduct a full merits review of the Information Commissioner’s decision notice. The Upper Tribunal’s role is confined to ascertaining whether the First-tier Tribunal’s decision involves a material error of law.
The specific issue arising on this appeal before the First-tier Tribunal
8. The practical issue raised by this appeal before the First-tier Tribunal was accordingly whether certain information in a National Archives file entitled Activities of named paid informants against Irish Secret Societies (TNA file ref HO 317/38) should be released under the Freedom of Information Act 2000. The file covers the period 1890-1910. The requested information in issue comprises the names of such paid informants.
The legal issue raised by this appeal before the Upper Tribunal
9. The (rather narrow) legal issue arising on this appeal to the Upper Tribunal is whether the majority members of the First-tier Tribunal correctly carried out the public interest balancing test, having already decided that the qualified exemptions under sections 24(1) (national security) and 38(1) (health and safety) of FOIA were engaged.
The background to the complaint to the Information Commissioner
10. Mr Keane is both an Irish historian and a historian of Ireland. As part of his research he visited Kew to consult the National Archives file referred to in paragraph 8 above. It was evident that a significant number of pages in that file relating to police informants had been removed. He made a request, treated as a request under the Freedom of Information Act 2000 (FOIA), to access the withheld information. He argued (in 2013) that “while there may have been good reason for doing so [i.e. redacting names] when the file was sent to the National Archives it does not appear to have any validity now. As the file ends in 1910 there seems no reason why any papers should be excluded 103 years later.”
11. The Home Office, the public authority which was in effect guardian of the file, declined to release the information requested, having taken the view that the information was exempt from disclosure by virtue of section 24(1) of FOIA, i.e. it was being withheld for the purposes of safeguarding national security. That decision was confirmed on internal review. Mr Keane then lodged a complaint with the Information Commissioner.
The Information Commissioner’s decision notice
12. On 13 November 2014 the Information Commissioner issued a Decision Notice (FS50532586), which rejected the substance of Mr Keane’s complaint. In short, the Commissioner decided that the Home Office had been correct to find that the section 24(1) was engaged and had also correctly concluded that the public interest balancing test favoured maintaining the exemption. Mr Keane then appealed to the First-tier Tribunal. By the time the matter proceeded to hearing, the Home Office also sought to rely on the health and safety exemption in section 38(1) of FOIA. In addition, the Metropolitan Police Service (MPS), with its obvious interest both as the historical source of the file and a contemporary State agency using paid informants, was joined as a further respondent.
The First-tier Tribunal’s...
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