Keane v The Information Commissioner and others
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wikeley |
| Neutral Citation | [2016] UKUT 461 (AAC),[2016] UKUT 461 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Information rights,Information rights - Freedom of information - public interest test,Information rights - Freedom of information - qualified exemptions |
| Date | 17 October 2016 |
| Published date | 01 December 2016 |
Keane v (1) IC (2) Home Office (3) MPS
[2016] UKUT 0461 (AAC)
GIA/3119/2015 1
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
Keane v (1) IC (2) Home Office (3) MPS
[2016] UKUT 0461 (AAC)
GIA/3119/2015 2
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
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2 cases
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Foreign, Commonwealth and Development Office v Information Commissioner, Williams and Others (Sections 23 and 24)
...competing public interest to equal or outweigh it”: Keane v Information Commissioner, Home Office and Metropolitan Police Service [2016] UKUT 461 (AAC), para 58 (approving Kalman). That does not mean that the section 24 exemption carries “inherent weight”, but is rather a reflection of wha......
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Ministry of Defence
...simply as historic, although it has its roots in The Troubles. 89. The Upper Tribunal judgment of Keane v IC, Home Office and MPS [2016] UKUT 0461 (AAC) upheld the application of the (national security) and s.38(1) (health and safety) exemptions in respect of material from TNA covering a pe......