Lownie v The Information Commissioner, The Foreign and Commonwealth Office and The National Archives (GIA)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Markus |
| Neutral Citation | [2020] UKUT 32 (AAC),[2020] UKUT 32 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Information rights,Information rights - Freedom of Information - exceptions,Information rights - Freedom of information - public interest test,Information rights - Information rights: practice,procedure,Markus,K |
| Date | 28 January 2020 |
| Published date | 04 March 2020 |
AL v ICO, The FCO and The National Archives (GIA)
[2020] UKUT 32 (AAC)
1
IN THE UPPER TRIBUNAL Appeal No. GIA/2690/2018
ADMINISTRATIVE APPEALS CHAMBER
On appeal from the First-tier Tribunal (General Regulatory Chamber)(Information
Rights)
Between:
Mr Andrew Lownie Appellant
- v –
1. This Information Commissioner
2. The National Archives
3. The Foreign and Commonwealth Office Respondent
Before: Upper Tribunal Judge K Markus QC
Decision date: 28 January 2020
Heard at the Royal Courts of Justice on 30 October 2019
Representation:
Appellant: Mr G Callus (Counsel), instructed by Mr Lownie
1st Respondent: Ms E Kelsey (Counsel), instructed by the solicitor for the
Office of the Information Commissioner
2nd and 3rd Respondent: Mr A Heppinstall (Counsel), instructed by the Government
Legal Department
DECISION
The appeal is dismissed.
REASONS FOR DECISION
1. This is an appeal by Mr Lownie against a decision of the First-tier Tribunal
(‘FTT’) that information which he had requested from the National Archives
(‘TNA’) was exempt from disclosure under section 23(1) of the Freedom of
Information Act 2000 (‘FOIA’).
2. The relevant facts and background are set out clearly in the FTT’s reasons.
The following brief summary of the background suffices for present purposes.
3. TNA is a non-ministerial government department and the official archive and
publisher for the UK Government.
AL v ICO, The FCO and The National Archives (GIA)
[2020] UKUT 32 (AAC)
GIA/2690/2018
2
4. On 12 January 2016 Mr Lownie requested from TNA a number of closed
Foreign and Commonwealth Office (‘FCO’) files including under reference
‘FCO 158’. The official description of that reference is that it denotes FCO
records “relating to Guy Burgess and Donald Maclean (known KGB spies),
and subsequent investigations and security arrangements”. The particular file
which is the subject of this appeal is ‘FCO 158/143 – Vetting of [name
withheld] 1951‐1980’. It concerns the security vetting of a person who was a
member of the FCO. The Information Commissioner’s decision notice refers to
the information in the file having ‘implications’ with regards to the person’s
sexuality and unfounded allegations of espionage activities.
5. The file is held by TNA as a transferred public record for the purposes of Part
VI of FOIA. The FCO is the responsible authority for the purposes of section
66 of FOIA. The file was transferred on 1 September 2015 with agreement for
closure for a period of 92 years.
6. Following consultation with the FCO and the Advisory Council of National
Records and Archives, TNA refused to provide the file in reliance on the
exemption in section 38(1) of FOIA (that it would, or would be likely to,
endanger the health or safety of an individual). On internal review, TNA
consulted the FCO and another government department pursuant to section
66(5). The outcome of the internal review was that TNA confirmed the refusal,
relying additionally on section 24(1) (safeguarding national security).
7. Mr Lownie complained to the Information Commissioner on 4 November 2016.
By a decision notice dated 28 March 2017 the Commissioner upheld the
refusal in reliance on section 38(1) and so did not address section 24.
8. Mr Lownie appealed to the FTT. The FCO was joined as a respondent in
addition to the Commissioner and TNA. TNA and the FCO were jointly
represented and advanced the same case. They resisted the appeal relying
on section 38, section 24 and, by response to the appeal filed shortly before
the expiry of the deadline for doing so, section 23(1). The relevant provisions
of section 23 are set out below.
9. In accordance with the guidance in Browning v Information Commissioner
[2014] EWCA Civ 1050, the FTT received open and closed material, and parts
of the oral hearing were conducted in a closed session. Three witnesses gave
evidence on behalf of TNA/FCO, in open and closed sessions. The gist of the
closed session was provided to Mr Lownie, in writing, and was set out in the
FTT’s decision.
10. The FTT explained in its decision that, after the closed session, it became
apparent that further work needed to be done by the Respondents “to get to
grips with the detail of how the various exemptions were said to apply to the
disputed information”. The Respondents were directed to provide written
closing submissions in that regard, and an open gist for Mr Lownie to which Mr
Lownie was permitted to respond. The result of this exercise was that
TNA/FCO conceded that about 30 pages of the file should be released with
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Cabinet Office
...exemption at this late stage given that the request had been submitted in June 2021. AL v ICO, The FCO and The National Archives (GIA) [2020] UKUT 32 (AAC) https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-andenvironmental-information-regulations/section-23-security......