Fryers and Hogg v Secretary of State for Northern Ireland
| Jurisdiction | UK Non-devolved |
| Judge | The Honourable Mr Justice Maguire,Judge Purchas QC,Judge Wikeley |
| Neutral Citation | [2019] UKUT 22 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Tribunal procedure,practice,Information rights - Data protection,practice - lapsing of appeals,practice - tribunal jurisdiction,Three Judge Panel |
| Date | 17 January 2019 |
| Published date | 23 February 2019 |
Fryers and Hogg v Secretary of State for Northern Ireland [2019] UKUT 22 (AAC)
GINS/5304/2014 and GINS/478/2015
1
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to dismiss both appeals.
This decision is given under section 28 of the Data Protection Act 1998 and section 11 of the
Tribunals, Courts and Enforcement Act 2007.
REASONS FOR DECISION
1. The present two appeals – the cases of Mr Robert Fryers (GINS/5304/2014) and Mr
Seamus Hogg (GINS/478/2015) – arise out of the practice of internment in Northern Ireland
in the early to mid-1970s.
2. In 2013 the two Appellants, along with many others who were similarly interned, wrote
to the Public Records Office Northern Ireland (PRONI) making subject access requests under
section 7 of the Data Protection Act 1998 (“the 1998 Act”). They requested “any legal papers
and documentation you may have in relation to [our] detention and internment”.
3. PRONI responded to the Appellants’ subject access requests by providing copies of the
documents it held, but with copious redactions. The redactions fell into three categori es,
namely those which were said to be covered by: (1) the national security exemption under
section 28 of the 1998 Act; (2) the exemption for prejudice to the prevention and detention
of crime under section 29 of the same statute; and (3) compliance with other obligations
under that legislation (e.g. to protect third party personal information). The Appellants’
present appeals are only concerned with the first category of exemption.
4. In tandem the Secretary of State for Northern Ireland issued certificates under section
28(2) of the 1998 Act, certifying that exemption from the usual DPA rights was “required for
the purpose of safeguarding national security” (see also section 28(1) of the 1998 Act). This
certification was on the basis that disclosure of some of the material contained within the
PRONI records would, if disclosed, have serious adverse repercussions for national security.
The Appellants lodged appeals against those certificates with the First-tier Tribunal (see
section 28(4) of the 1998 Act), along with about 100 other affected individuals.
5. The then Chamber President of the General Regulatory Chamber of the First-tier
Tribunal, transferred the appeals to the Upper Tribunal, as required by rule 19(1A) of the
Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI
2009/1976), as amended). The parties’ representatives subsequently agreed that three
appeals should proceed as test cases for the whole cohort of cases in which the Secretary of
State had issued section 28(2) certificates. The three appeals were the present two appeals
and a third appeal lodged by Mr Don Campbell (now deceased; GINS/5065/2014).
6. We held an oral hearing of those three appeals in Belfast on 6 and 7 June 2018. It is fair
to say the Appellants’ case, which had originally been pleaded primarily on the basis of a
claimed breach of their Convention rights, changed tack at a very late stage. As put at the
oral hearing, the Appellants’ submission was that that the certificates we re based on a
mistake of fact or a failure to take account of a relevant consideration, namely prior
disclosure of the information requested. It was further argued that the issue of the
certificates was irrational, not least as relevant papers in the case of at least one other
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