Savic GI 2075 2015
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 30 November 2016 |
| Neutral Citation | 2016 UKUT 535 AAC |
| Subject Matter | Information rights |
| Respondent | The Information Commissioner, The Attorney General's Office and The Cabinet Office, The Cabinet Office Appeal |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GI 2075 2015 |
| Appellant | Savic |
[2017] AACR 26
(Savic v Information Commissioner, Attorney General and Cabinet Office
[2016] UKUT 534 (AAC)
[2016] UKUT 535 (AAC))
Mr Justice Charles CP GI/2074/2015
Judge Peter Lane GI/2075/2015
Anne Chafer
30 November 2016
Freedom of Information Act 2000 – exempt information – Law Officer’s Advice – need to weigh competing public interests – neither confirmed nor denied response
The appellant made two Freedom of Information Act 2000 (FOIA) requests regarding the decision to take military action in Kosovo in 1999, one to the Attorney General’s Office (the AGO) for details of the legal advice given to the government and the other to the Cabinet Office (the CO) for the minutes of the relevant Cabinet meetings, inter-departmental memos and other records. The AGO’s initial response was neither to confirm nor deny (NCND) that it held such information. However, later it confirmed that it did, but that the information was being withheld on the basis that it was exempt information under section 35(1)(c), being Law Officer’s Advice. Following a complaint, the Information Commissioner upheld that response. Later the AGO also claimed that other exemptions applied in section 42(1), legal professional privilege (LPP), and in section 27(1), information prejudicial to the UK’s International Relations. The request to the CO was also refused on various grounds and the Information Commissioner rejected the applicant’s complaint. He held amongst other things that the CO was entitled to rely on the exemptions in sections 27(1)(a) to (d) concerning International Relations and in 42(1) regarding information it had confirmed it held and that it was entitled to rely on NCND in section 35(3) regarding Cabinet minutes. The appeals against the Information Commissioner’s decisions were transferred directly to the Upper Tribunal.
Held, dismissing the AGO appeal and upholding the CO appeal in part, that:
- (AGO decision) there was an obvious link between the public interests underlying section 35(1)(c) and the exemption for Law Officers’ advice and section 42, the exemption for LPP. The factors identified by the courts in favour of the non-disclosure of LPP information provided powerful reasons for a refusal of a FOIA request, but there was not a right of non-disclosure in the FOIA context, and a fact sensitive weighing of the competing public interests must be carried out: Department for Business Enterprise and Regulatory Reform (BERR) v O’Brien [2009] EWHC 164 (QB) and HM Treasury v the Information Commissioner [2009] EWHC 1811 (Admin); [2010] 1 QB 563. If the information sought was relevant to legal proceedings, or would be of use in them, that added to the weight of the factors against disclosure, as it would effectively deny the relevant public authority its right to refuse disclosure (paragraphs 27 and 34 to 35)
- (AGO decision) the public interest in maintaining the confidentiality of instructions for legal advice concerning complex, sensitive and constitutionally important issues outweighed the public interest in openness, understanding and evaluating the Government’s decision. The weight of the arguments for non-disclosure could weaken over time, but the possibility of further legal proceedings meant that the factors favouring non-disclosure were still actively engaged (paragraphs 51 to 54)
- (CO decision) an NCND response in respect of the appellant’s request for Cabinet minutes could not be based on section 35(3) because the public interest in maintaining the NCND exclusion did not outweigh the public interest in disclosing whether the CO held any such minutes (paragraphs 104 and 130)
- (CO decision) the decision was in accordance with the law, to the extent that the Information Commissioner had been right to conclude that (save as regards the section 42 document) the public interest in maintaining the exemption in section 27 outweighed the public interest in disclosing the information (paragraphs 103 and 131).
The UT directed the CO to provide further information regarding the NCND response so that a further hearing could determine how to proceed with this aspect of the appellant’s appeal.
DECISIONS OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The appellant appeared in person.
Laura Elizabeth John, instructed by the Information Commissioner, appeared for the first respondent.
James Eadie QC and Julian Blake, instructed by the Government Legal Department, appeared for the second and third respondents.
[2016] UKUT 534 (AAC)
DECISION
(1) This decision addresses the appellant’s appeals against:
- The first respondent’s decision of 13 January 2015 (in respect of the appellant’s request for information from the second respondent dated 30 July 2013 (the AGO Request), and
- the first respondent’s decision of 13 January 2015 on one document that is the subject of the appellant’s appeal which contains information within the ambit of the appellant’s request for information from the third respondent dated 14 August 2013 (the CO Request) namely the document that the first respondent concluded fell within the scope of section 42 of FOIA (Legal professional privilege).
(2) The appeals are dismissed.
REASONS
Introduction
- These appeals were transferred to the Upper Tribunal on 12 June 2015. They are against two decisions made by the first respondent (the Commissioner) relating to requests made under the Freedom of Information Act 2000 (FOIA).
- The first request was made on 30 July 2013 and was addressed to the second respondent (the AGO). It requested:
“details of the advice given to [HMG] in respect of its decision to take military action against the Serbian / FRY authorities in Kosovo in 1999 … together with any documents that were material to the decision of [HMG] to commence aerial bombardment of Kosovo and Serbia”.
We shall refer to this as the AGO Request. As can be seen from its terms it is directed to advice about a specific decision or decisions. It has been common ground that it was a request for the advice given by the Attorney General of the time (Lord Morris).
- The initial response to the AGO Request was a response neither confirming nor denying (NCND) whether information within the scope of the request was held. This response was based on section 35(3) of FOIA. The Commissioner decided that the fact that the Attorney General (the AG) had given such advice was in the public domain when the request was made and so in effect that as the “cat was out of the bag” the public interest did not favour neither confirming nor denying whether information within the scope of the AGO request was held. Unsurprisingly, this decision was not appealed and on 26 March 2014 the AGO responded confirming that it held information within the scope of the request but withholding it in reliance upon the exemption set out in section 35(1)(c) (Law Officers’ Advice). This was part of the disputed information in the closed bundle before us (the Disputed Information).
- By a decision notice dated 13 January 2015 (the AGO Decision) the Commissioner upheld the AGO’s reliance on section 35(1)(c).
- On the appeal against the AGO Decision reliance is also placed on section 42(1) (LPP) and section 27(1) (international relations). These additional claims are unsurprising because LPP clearly applies to the legal advice of the Law Officers and section 27 is likely to be engaged by information included in instructions for and the content of the relevant advice.
- The second request was made on 14 August 2013 and was addressed to the third respondent (the CO). It requested:
“copies of all records concerning the decision to commence a military air campaign against Serbia and Kosovo on 24 March 1999. Specifically we request copies of:
- Minutes of Cabinet meetings, during which that decision was discussed
- Memorandum between relevant Government Departments and specifically the Foreign and Commonwealth Office and the Ministry of Defence.
- Any other records relating to the...
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