On 2nd January 2018 the Upper Tribunal (Administrative Appeals Chamber) (consisting of Charles J, Lane J and Anne Chafer) published an important decision [pdf], dated 14th December 2017, on the application of the exemption in section 23 of the Freedom of Information Act 2000.
The exemption in section 23 relates to information supplied by, or relating to, bodies dealing with security matters. Subsection (3) provides a list of 15 bodies to which the exemption applies; including the Security Service (MI5), the Secret Intelligence Service (MI6), the National Crime Agency (NCA) and the Government Communications Headquarters (GCHQ). The actual exemption is contained in Section 23(1) and provides that:
Information held by a public authority is exempt information if it was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).
The decision is worth reading in full, but the essential background to the decision is as follows. On 21st August 2015 the Royal Air Force carried out a precision air strike in Syria utilising a remotely piloted aircraft (commonly referred to as a ‘drone strike’). The strike took place in the Syrian city of Raqqa and the target was 21 year-old Reyaad Khan, who was born in Cardiff, and had featured in a ‘recruitment video’ produced by ISIS (also known as IS, Dahesh or ISIL). The strike killed the intended target along with two other ISIS fighters, one of whom was also British.
On 7th September 2015 the then Prime Minister, David Cameron, made a statement to the House of Commons. In his statement to the House, Mr. Cameron provided details on the operation which had taken place in August 2015 in Raqqa. The Upper Tribunal’s written reasons for its decision quote extensively, at paragraph 10, from Mr. Cameron’s statement to the House. It also quotes an exchange between Mr. Cameron and the then acting leader of the Labour Party, Harriet Harman MP (paragraphs 11 and 12).
In compliance with the United Kingdom’s obligations in terms of Article 51 of the UN Charter, the UK’s Permanent Representative to the United Nations wrote to the President of the Security Council informing the President that the UK had undertaken the 25th August 2015 operation and that this was in “exercise of the inherent right of individual and collective self-defence.” The Upper Tribunal have quoted further from that letter in paragraph 13 of its decision.
There is much more to the background which can be dealt with in this blog post; however, it is comprehensively set out in the Upper Tribunal’s decision. It is suffice to say that Freedom of Information requests were made by the appellants to the Attorney General’s Office (AGO) and to the Cabinet Office. These requests were refused by the public authorities and, in three decisions dated 30 August 2016, the Information Commissioner upheld the decisions of the AGO and the Cabinet Office. The appellants appealed to the First-Tier Tribunal (Information Rights) and the appeals were transferred to the Upper Tribunal in terms of Rule 19 of The Tribunal Procedure (First-Tier Tribunal) (general regulatory Chamber) Rules 2009 – which allows appeals to the First-Tier Tribunal against decisions of the Information Commissioner’s office, amongst others, to be transferred to and be determined by the Upper Tribunal instead of the First-Tier Tribunal; essentially the appeal ‘leap-frogs’ the First-Tier Tribunal.
Section 23 of FOIA
Section 23 of FOIA is an absolute exemption, which means that it is not necessary for the public authority to consider where the public interest rests between maintaining the exemption and disclosure. It was designed to ensure that there was no backdoor route to gaining access to information held by the security services under FOIA. The security services are not public authorities for the purposes of FOIA and this exemption ensures that information which is supplied by, or relates to, one of the security bodies in section 23 cannot be obtained from a public body which is a public authority for the purposes of FOIA. A similar exemption, but not identical, can be found at Section 31 of the Freedom of Information (Scotland) Act 2002.
The Upper Tribunal’s decision
The Tribunal’s starting position seems to have been that FOIA provides a right of access to information rather than documents. When responding to an FOI request, a public authority does not need to supply a copy of the document which contains the requested information (although, in practice an authority will provide the document – redacted where necessary). The request can be complied with by extracting the information from the document or other records held by the authority (APPGER v ICO and FCO  UKUT 0377 (AAC)). This seems to be a key pillar of the Upper Tribunal’s decision in Corderoy and another v The Information Commissioner and others.
The Upper Tribunal has in this case qualified a statement that was made in the decision of the Upper Tribunal in the APPGER case. In the APPGER case, the Upper Tribunal stated that “…information, in a record supplied to one or more of the section 23 bodies for the purpose of the discharge of their statutory functions, is highly likely to be information which relates to an intelligence or security body and so exempt under section 23.” The Respondents in the present case appear to have relied upon this position to argue for a very broad interpretation of section 23. The Appellants however argued that the absolute exemption in section 23 would prevent disclosure under FOISA unless: (a) the legal analysis to found the view that he policy decision was lawful can be disaggregated and provided in an intelligible form; and (b) any such disaggregated information falls outside the scope of section 23.
The Appellants were interested in the legal advice which underpinned the Government’s policy decision. They argued that if this information could property be removed from the documents supplied to the section 23 bodies, and that information itself was not provided by, or related to, a section 23 body, then section 23 did not preclude disclosure and the information instead had to be considered under the qualified exemptions in sections 35(2) and 42 of FOIA (relating to the formulation of government policy and legal advice).
The Upper Tribunal eventually concluded that, while the information in question was clearly of interest to the section 23 bodies; Parliament did not intend, when enacting Section 23(1), for the exemption to apply to information simply because it might be of interest to the section 23 bodies. The information in question in the present case was concerned with, and confined to, the question as to whether the Government’s policy was lawful.
The Upper Tribunal then went on to consider the public interest arguments, deciding that the public interest rested in maintaining the alternative qualified exemptions rather than in disclosure. The Upper Tribunal held that it was not necessary for the Government’s legal advice to be shared in order to enable a debate on the lawfulness of the Government’s position to take place; indeed, a considerable debate had already taken place on the issue without the information.
Criticism of the Information Commissioner’s Investigations
The Upper Tribunal also took issue with the way in which the Information Commissioner had conducted her investigations into the complaints made by each of the appellants. The Information Commissioner had proceeded on the basis of assurances given by the AGO and the Cabinet Office that the information was exempt under section 23(1) of FOIA rather then exercise her statutory powers to require the AGO and Cabinet Office to provide her with the information in question for her consideration.
The Upper Tribunal was extremely critical of this approach by the Commissioner. The Commissioner did modify her position before the Upper Tribunal; however, the Upper Tribunal remained extremely critical. At paragraph 95 of its decision, the Upper Tribunal stated:
We acknowledge the resource difficulties of the Information Commissioner but we consider that the course adopted here of effectively permitting the other tow Respondents to be the decision-maker on the challenge to their stance of the application of the absolute exemption in section 23 is unfair.
The Upper Tribunal went on to state in paragraph 97 of its decision that:
If the relevant public authority wishes to avoid a consideration of the relevant documents and so information and disaggregation issues, we have not thought of any circumstances in which it could rely on an assurance rather than a certificate given pursuant to s. 23(2) that can be appealed under section 60.
A certificate under section 23(2) is signed by a Minister of the Crown certifying that the information to which the certificate applies was directly or indirectly supplied by, or relates to, any of the bodies specified in section 23(3) is conclusive evidence of that fact. The conclusiveness of the certificate is, however, subject to section 60 of FOIA which allows the Commissioner or any requester who is affected by the certificate to appeal the certificate to the First-Tier Tribunal. The Tribunal can, if it decides that the information in question is not covered by section 23(1), quash the certificate.
Such a certificate may not ultimately prevent the First-tier Tribunal from carrying out the exercise that the Upper Tribunal ultimately carried out in this case, but it does prevent the Commissioner from doing so as the Commissioner is bound to rely upon such a certificate as being conclusive evidence of the application of section 23(1).
This was an important decision of the Upper Tribunal which clarifies the scope of Section 23(1) of FOIA and which also makes it clear how the Commissioner should conduct her investigations where a requester is challenging the application of section 23(1) of FOIA, but where no Minister of the Crown has signed a certificate pursuant to Section 23(2) of FOIA.
The Upper Tribunal has provided for a more defined exemption rather than for the blanket approach that was being taken by the Respondents. What can be taken from this case is that information which may be of interest to those bodies listed in section 23(3) of FOIA, and thereby relate to them, will not automatically engage the exemption in section 23.
The Upper Tribunal’s comments on the way in which the Information Commissioner conducted her investigations in relation to these complaints are also of note, and indeed of wider importance. It is clear that the Upper Tribunal expects the independent regulator to be independent (perhaps not an unsurprising conclusion); in this case it appears that she did not act as independently as she should have. It was not appropriate for the Commissioner to rely on assurances given by the public bodies concerned and she ought to have required that a copy of the disputed information be provided to her for her consideration or a certificate issued pursuant to section 23(2) of FOIA. While sympathetic to the pressure on resources that the Commissioner was experiencing, this did not provide an excuse to her for failing to properly investigate an area of contention between the requesters and the public authorities (and indeed between the public authorities themselves, who arrived at the same conclusion but for different reasons).
We have experience of appeals against decisions of the UK Information Commissioner to the First-Tier and Upper Tribunals and also of handling appeals against decisions of the Scottish Information Commissioner. If you would like to discuss a Freedom of Information matter with Alistair Sloan then you can contact him on 0345 450 0123 or send him an E-mail.