First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Appeal Reference: EA/2018/0276
Decided without a hearing
On 4 July 2019
Before
JUDGE BUCKLEY
PAUL TAYLOR
MALCOLM CLARKE
Between
MARTIN ROSENBAUM
Appellant
and
THE INFORMATION COMMISSIONER
First Respondent
THE COMMISSIONER OF POLICE OF THE METROPOLIS
Second Respondent
INTERIM DECISION
1. For the reasons set out below the appeal is allowed. The Commissioner should
have concluded that the Second Respondent (‘the Police’) was not entitled to
refuse to confirm or deny whether it held the information.
2. This interim decision deals only with the issue of whether or not the Police were
entitled to refuse to confirm or deny whether they held the requested information.
A further decision and, if appropriate, a substitute decision notice, will be issued
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once the tribunal has heard submissions from all parties on the applicability of
any exemptions.
REASONS
Introduction
1. This is an appeal against the Commissioner’s decision notice FS50755946 of 14
November 2018 which held that the Second Respondent (‘the Police’) was entitled
to rely on s 23(5) Freedom of Information Act 2000 (FOIA).
2. We have read and taken account of an open bundle of documents, a small closed
bundle (containing an unredacted version of a letter in the open bundle),
submissions from all parties and a witness statement on behalf of the Police from
Detective Chief Superintendent Kevin Southworth.
Factual background to the appeal
3. The National Front is defined by the Police in their letter of 15 October 2018 as
follows:
‘The National Front is a far-right and fascist political party. The party espouses the ethnic
nationalist view that only white people should be citizens of the United Kingdom. The party calls
for an end to non-white migration into the UK and settled non-white Britons to be stripped of
citizenship and deported from the country. A white supremacist group, it promotes biological
racism, calling for global racial separatism and condemning interracial relationships and
miscegenation. Https://en.wikipedia.org/wiki/National_Front_(UK) and
http://www.nationalfront.info/‘
4. In 2006 the functions of Special Branch were merged with the Anti-Terrorist
Branch into a unit called the Counter Terrorism Command (‘CTC’), also known
as S015. The tribunal read a statement from Detective Chief Superintendent Kevin
Southworth, in charge of the CTC. The CTC’s remit includes countering terrorism
but also to combat threats to national security and to protect democracy from, for
example, espionage, subversion, political extremism etc. This national security
remit is shared with a number of s 23 bodies. The CTC’s most significant
intelligence partner is the Security Service, and there is significant liaison between
the CTC and the Security Service on a daily basis. Section 23 bodies are routinely
involved in most aspects of CTC work and any information gathered by CTC may
be exchanged with or originate from s 23 bodies.
5. The Police currently has a policy of neither confirming or denying the existence
of material which would inform the public whether or not Special Branch have
had an interest in a particular individual or organisation. While the witness
statement makes reference to information in relation to any terrorist or extremist
group or individual, the Tribunal understands that the policy applies to requests
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for information concerning any groups or people who may or may not have been
of interest to Special Branch, where confirming or denying would reveal the
investigative ambit of Special Branch. Historically, when the FOIA was first
implemented, the Police released some information from Special Branch files in
response to FOI requests. The Appellant identifies, for example, the release of
information held in relation to certain groups in 2005 and 2006.
6. The BBC Documentary, ‘True Spies’, contained interviews from ex-Special Branch
officers in which they state, for example, that Special Branch used an MI5 agent
to infiltrate the National Front. The Police have not confirmed or denied anything
that was said by the ex-officers. The Police issued the following press release
about ‘True Spies’:
“We assisted the BBC with its research on the subject, which is closely linked with the operational
history of Special Branch. A number of ex-officers approached the Met asking for advice as to
whether or not they should contribute, which we gave them. It is incumbent on them not to do
anything that could compromise national security. However, ex-officers are private individuals
and the final decision as to whether to give interviews is up to them.”
7. The Undercover Policing Enquiry has published a list identifying 78
organisations to enable members of the public to identify whether they may have
known officers who were deployed undercover. The list is stated not to be a
comprehensive list of groups with which the officer may have interacted and not
to constitute a factual finding by the Chairman that any group was or was not
targeted. The Police have not confirmed the accuracy of this list.
Request
8. This appeal concerns the request made on 10 January 2018 by Martin Rosenbaum
for the following information:
“All information held by what was then called Special Branch relating to the National Front,
for the following years:
a) 1974
b) 1975
c) 1983
I am aware of the policy which has normally been adopted in recent years by the Metropolitan
Police in relation to FOI requests relating to the work of Special Branch and FOIA section 23.
However this policy can no longer be maintained in the same way, in the light of the recent
decision of the Upper Tribunal in (1) Corderoy & (2) Ahmed v (1) IC, (2) A-G & (3) CO [2017]
UKUT 495 (AAC) […]
In my opinion the information I have requested could be ‘disaggregated’ (using the terminology
of the UKUT decision) from material which is genuinely covered by section 23. It is therefore
not exempt from disclosure for that reason.”
[ …]
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9. The Police’s reply, dated 12 February 2018, was received by Mr Rosenbaum on
22 March 2018. The Police refused to confirm or deny that it held the requested
information citing sections 23(5), 24(2), 27(4), 30(3), 31(3) and 40(5) FOIA,
because confirming or denying whether or not it held the information would
disclose whether or not the Police have or have had an interest in the National
Front and whether there has been any involvement of the security bodies.
10. Mr Rosenbaum applied for a review on 28 March 2018. On 25 May 2018 the
Police upheld its decision.
Decision Notice
11. In a decision notice dated 14 November 2018 the Commissioner decided that the
Police was entitled to neither confirm not deny whether it held any information
relying on s 23(5) (information supplied by, or relating to, bodies dealing with
security matters).
12. The Commissioner concluded that (1) Corderoy & (2) Ahmed v (1) The
Information Commissioner, (2)The Attorney-General & (3) The Cabinet Office
[2017] UKUT 495 (AAC) (‘Corderoy’) was not relevant to this appeal.
13. The Commissioner held that s 23(5) is engaged if the wording of the request
suggests that any information falling within its scope would be within the class
described in this section. The evidence must suggest that it is probable that any
information held that falls within the scope of the request would relate to, or have
been supplied by, a body specified in section 23(3).
14. The Commissioner considered it clear that the subject matter of the request,
involvement with the National Front, is within the area of work of bodies
specified in section 23(3). She accepted that it was likely that, if the information
described in the request did exist, this would have been complied with input from,
or involvement with, the Security Service. She concluded, on the balance of
probabilities, that any information held by the Police falling within the scope of
the request would relate to, or have been supplied by, a body or bodies listed in
section 23(3) and that therefore s 23(5) was engaged.
15. In the light of her findings on s 23(5) she did not go on to consider the other
exemptions.
Appeal
16. The Grounds of Appeal are in summary that:
16.1. The fact that the National Front was an organisation of interest to Special Branch
is in the public domain;
16.2. The Commissioner failed to take proper account of the Upper Tribunal decision
in Corderoy. The information should more properly be considered under s 30 and
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s 31 and therefore a qualified exemption should apply under which the public
interest would favour a substantive confirmation or denial.
The Commissioner’s response
17. The Commissioner consistently takes the view that, given the close working
relationship between special branches and the security bodies, it is more likely
than not that any information relating to the work of Special Branch would be
caught by s 23. This approach must be applied consistently to prevent the indirect
disclosure of information, thwarting Parliament’s intention in providing the
NCND route.
18. In response to the specific grounds of appeal the Commissioner submits:
18.1. It is irrelevant if the activities of the Special Branch are in the public domain. There
has been no official announcement and therefore confirming or denying whether
information is held would disclose information that is not a matter of public
record.
18.2. Corderoy does not apply because it was not a NCND case. It is not possible to
disaggregate without confirming or denying its existence.
Appellant’s response
19. The Appellant adds that as the work of the Undercover Policing Enquiry
continues, more and more organisations are being publicly identified as having
been the subject of Special Branch interest: 78 are on the official list. No real
purpose is therefore served by a blanket NCND response.
20. It is wrong to suggest that the Commissioner has consistently adopted the view
that it is more likely than not that any information relating to the work of Special
Branch would be caught be s 23.
21. Special Branch monitoring of the National Front is effectively on the public record.
22. To the extent that any information within the scope of the request, were it to exist,
would, under Corderory, need to be disaggregated and considered under another
exemption, the NCND must also be considered under that other exemption. It
cannot be right that a public authority can issue a NCND response purely under
s 23 if any part of the material is covered by s 23 no matter how limited the
connection of s 23 to the rest of the material. In this case s 30 and s 31 are likely
to be engaged: a NCND request can still be given if the public interest test is
satisfied under those exemptions.
Response of the Police (the Second Respondent)
23. The Police have taken a consistent approach to neither confirming nor denying
the actions and ambit of Special Branch and there is no formal confirmation or
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denial by any state actor of a Special Branch investigation or otherwise into the
National Front or whether information is held relating to any such investigation.
24. Under s 23(5) the test to be applied is whether, on the balance of probabilities, the
Tribunal is satisfied that the information was either directly or indirectly supplied
by a s 23(3) body, or that the response would (one way or another) create a
sufficient connection to a s 23(3) body as there is some connection or the
information touches or stands in relation to a s 23 body.
25. The Police have taken a consistent approach to requests concerning Special
Branch Investigations, given the known association between Special Branch and
the security services. Corderoy does not apply to NCND cases. In any event, the
Corderoy approach has no bearing on the facts of this case: if held the information
would go to the core purpose of Special Branch: investigations into matters of
national security and intelligence. On the facts of this case, the fact that the
information may also fall within s 31 cannot preclude reliance on s 23.
26. If the Tribunal go on to consider the qualified exemptions (ss 24(2), 27(4), 30(3),
31(3), and 40(5B)), the Police submit that the public interest is in favour of not
disclosing whether the information sought is held by the Police because:
26.1. It would be contrary to the public interest to reveal the nature and scope of any
Special Branch investigations into extremist organisations where it would then be
ascertainable by confirming or denying whether organisations were of interest to
Special Branch (s 24(2));
26.2. It is not in the public interest to damage international relations (s 27(4));
26.3. It is not in the public interest to prejudice policy investigations or law enforcement
by revealing whether or not information is held in respect of an extremist body (s
30(3) and 31(3));
26.4. It is not in the public interest to reveal whether information is or is not held on
persons who are known to be alive, so as to engage their rights, and thereby the
Data Protection Principles under the Data Protection Act (s 40(5B)(a)(i)).
Appellant’s response to the Police response
27. The Appellant makes the following additional points:
27.1. The Police have not taken a consistent approach to requests concerning Special
Branch. In the past, they have made a number of substantial disclosures of Special
Branch files.
27.2. The relationship between s 23 and s 24 is not relevant in this case.
27.3. Material covered by the request which falls outside s 23 can be disaggregated and
therefore Corderoy is relevant. The majority of records in Special Branch files
that the Appellant has read contain no reference to s 23 bodies.
27.4. The balance of the public interest lies against the use of NCND under any
qualified exemption: if disclosing Special Branch interest in the National Front
would cause any harm, this has already happened; it would reveal nothing about
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current police operations; the development of Special Branch monitoring of
political movements is a significant historical matter and there is a public interest
in greater historical knowledge, understanding and transparency.
Appellant’s response to witness statement
28. The Appellant submits that Mr Southworth’s evidence that the Police do not
adopt a blanket policy to FOI requests relating to Special Branch undermines
their argument that they have a consistent approach. The fact that information
entered the public domain by a particular route does not affect the fact that it
is in the public domain. The fact that there is now significant liaison between
the CTC and the Security Service does not mean that there was a similar
exchange of information in the 1970s/1980s. The harm asserted by Mr
Southworth is unsupported by evidence.
Legal framework
29. Under s 1(1)(a) FOIA any person making a request for information to a public
authority is entitled to be informed in writing by the public authority whether or
not it holds information of the description specified in the request. The duty of a
public authority to comply with s 1(1)(a) is referred in the FOIA as ‘the duty to
confirm or deny’. Neither confirming nor denying is referred to in this decision
as “NCND”.
30. Section 2(1) provides that where any provision states that the duty to confirm or
deny does not arise in relation to any information, the effect of the provision is
that the duty does not apply where either:
(a) the provision confers absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the
exclusion of the duty to confirm or deny outweighs the public interest in
disclosing whether the public authority holds the information.
31. Section 23 is an absolute exemption. Sections 24(2), 27(4), 30(3), 31(3) and 40(5) are
qualified exemptions.
Section 23
32. Under s 23(1) information held by a public authority is exempt information if it
was directly or indirectly supplied to the public authority or relates to any of the
bodies specified in s 23(3).
33. Under s 23(5) the duty to confirm or deny does not arise if, or to the extent that,
compliance with section 1(1)(a) would involve the disclosure of any information
(whether or not already recorded) which was directly or indirectly supplied to
the public authority by, or relates to, any of the bodies specified in s 23(3).
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34. Section 23(3) lists a number of bodies dealing with security matters, including the
Security Service. Special Branch and the CTC are not in that list.
35. Both s 23(1) and (5) are class-based, which means that there is no requirement to
demonstrate prejudice.
36. The expression ‘relates to’ is to be used in a wide sense (APPGER v IC and FCO
[2015] UKUT 0377 (AAC)). It does not mean that the information has to have the
security body as its focus, or main focus.
37. The Tribunal decides the question of whether or not information was supplied by
or relates to a relevant body on the balance of probabilities.
38. The Appellant has relied on the case of Corderoy and therefore it is useful to set
out the principles we draw from that case. Corderoy was a case under s 23(1)
rather than s 23(5). It concerned requests for information relating to legal advice
given to the Attorney General about a targeted drone attack in Syria in 2015.
39. The first issue raised by the Appellant is the ‘disaggregation’ of information. One
of the issues which was before the Upper Tribunal in the Corderory appeal was:
Does s 23(1) apply to the entirety of the contents of the Advice or can those contents be
disaggregated, such that some of the information within it is not to be treated as covered
by s 23(1)?
40. FOIA applies to information not documents. The focus of the request in Corderoy
for ‘legal advice’ was, according to the Upper Tribunal, ‘the legal analysis
underlying, and so the legal basis for, the Government’s conclusion and assertion
that its policy on targeted drone strikes, and so the policy decision made by senior
ministers that was referred to by the Prime Minister in his statement to the House
of Commons on 7 September 2015, is lawful.’ The question therefore arose in
Corderoy, as to whether the pure legal analysis which founded the view that the
policy decision was lawful could be disaggregated from the rest of the legal
advice and provided in an intelligible form.
41. In this appeal no question of disaggregation can arise. The ‘information’ in issue
under s 23(5) is not the information covered by the the request, which we refer to
as the ‘requested information’. It is whatever information would be disclosed by
a confirmation or a denial that the requested information was held, which we
refer to in this judgment as the ‘revealed information’. The revealed information
does not need to be recorded information. It is, in essence, what the public would
know as a result of a confirmation or a denial. The question for us is whether the
revealed information falls within s 23(5). The fact that some or all of the requested
information could be disaggregated and might not be covered by s 23(1) is not the
issue. The contents of the requested information is not what we are concerned
with under s 23(5).
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42. We cannot rule out that there might, in an appropriate case, because of the terms
of the request, be a situation where the revealed information was extensive and
might be susceptible to disaggregation, but this is not one of those cases.
43. The other aspect of the Upper Tribunal decision is the proper scope of s 23(1) and
in our view that is of direct relevance to this appeal, given the similarity in
wording between s 23(1) and s 23(5).
44. The Upper Tribunal held that the legal analysis sought by the requests would
have been and is of interest to the s 23 bodies. The existence of this interest can
found a conclusion that, as a matter of language, that legal analysis ‘relates to’ s
23 bodies whether they sought the advice alone or together with others or were
provided with the advice.
45. The Upper Tribunal held that in determining the scope that Parliament intended
section 23(1) to have, it will be necessary to consider whether a qualified
exemption would nevertheless apply to the requested information concerned. At
paras 56 and 57 the Upper Tribunal held that the central question when
considering the application of s 23(1) was: ‘which exemption or exemptions to the
right to be provided with information conferred by FOIA did Parliament intend to apply
to the disclosure of particular information by a public authority?’, which in the
Corderoy appeal could be expressed as: ‘did Parliament intend that an absolute or
qualified exemption would apply…?’. The Upper Tribunal’s view was that the correct
approach to answering that central question was to address by reference to the
content of the requested information which of the exemptions Parliament
intended to apply.
46. The Upper Tribunal referred in paragraphs 59 and 60 to a ‘revelatory problem’,
which did not arise in the Corderoy case:
“59. We reiterate that Parliament clearly did not intend information to be obtained from or about
security bodies through the back door and we acknowledge that there can be difficulty:
(a) in an outsider identifying what the revelatory nature of information, if any, which is said to be
subject to the absolute section 23 exemption might be, and so
(b) in the application of an approach that asks whether the information is or might be revelatory
of the Security Services’ activities, their intelligence or intelligence sources, and that these points
support a wide approach to the reach of section 23.
60. But here, the revelatory problem does not exist. Firstly, no doubt because of the expected and
confirmed involvement of the security bodies a “neither confirm nor deny approach” was correctly
not advanced by the Respondents under section 23. Secondly, and on all of the scenarios set by the
question set out in paragraph 38 above the Disaggregated Information:
(a) is obviously of interest to all involved in formulating or acting in accordance with the
Government policy on targeted drone strikes because it is an analysis of the lawfulness of that
policy, but
(b) that interest is limited to analysis of the relevant legal principles and does not reveal anything
about the activities of security bodies as such which were involved, save that it sets the parameters
of what is lawful and so the circumstances that must be established to exist to found that legal
analysis.”
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47. The Upper Tribunal concluded in para 62:
“Returning to what we regard as the central question we have concluded that although we accept
that the Disaggregated Information was and is of interest to security bodies for their statutory
purposes and, as a matter of ordinary language can be said to relate to them, Parliament did not
intend such information to be covered by the absolute section 23 exemption. The reasons for this
are that (i) the interest of the security bodies in such information is shared by Parliament and the
public because it relates and is confined to the legality of Government policy, and so (ii) such
information falls obviously within the qualified exemptions in sections 35 and 42 as being legal
advice on the formulation of Government policy.”
48. In our view, the Corderoy approach is applicable to a s 23(5) appeal in the
following sense. In determining whether or not the revealed information ‘relates
to’ a security body, we should consider which exclusion of the duty to confirm or
deny Parliament intended to apply in relation to the disclosure of this revealed
information. Which, in this appeal also, could be expressed as ‘did Parliament
intend that an absolute or qualified exclusion would apply?’.
49. Like the Upper Tribunal, we reiterate that Parliament clearly did not intend that
information about the Security Services should be revealed by the back door and
we consider in our conclusions below the meaning and impact of para 59 and 60
of Corderoy.
50. We have also gained assistance from the Upper Tribunal in Savic v CO [2016]
UKUT 535 which considered a number of NCND provisions. From that decision
we draw the following general principles:
50.1. NCND is a protective concept because, as and when it applies, it stops inferences
being drawn on the existence of types of information and enables an equivalent
position to be taken on other occasions.
50.2. There is a need in each case to identify what information derives from a ‘yes’ or
‘no’ answer and to consider whether a ‘yes ‘or ‘no’ answer has the impact
specified in the relevant provision.
50.3. The protection that NCND gives against the disclosure of the contents of the
requested information is only a pragmatic consequence of its application and not
a reason for it. It is therefore impermissible to introduce contents arguments at
the NCND stage.
51. When deciding what information ‘derives from’ a ‘yes’ or ‘no’ answer, we think
that it is legitimate to consider both any information expressly communicated by
the public authority and any inferences the public would draw from the
information.
52. The Upper Tribunal asked a number of questions about the approach to deciding
whether or not s 23(5) or s 23(1) applies, on which it intended to invite further
submissions. We do not know whether submissions were submitted and no
further decision has been promulgated on this issue. However, the Upper
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Tribunal gave the following indication at para 101: ‘we therefore see some force in the
generic assertion of the appellant that the Commissioner and the CO have taken an
impermissibly broad approach to the NCND response based on s 23(5) and s 24(2).’
53. Looking at the Upper Tribunal’s questions in the light of this statement, we have
reached the following conclusions to the correct approach.
54. We do not think that the Commissioner is correct in stating (at para 23 and para
29 of the Decision Notice) that s 23(5) is engaged if, on the basis of the evidence
before the Tribunal (or the Commissioner), on the balance of probabilities,
information within the scope of the request would relate to, or have been supplied
by, a s 23(3) body.
55. This is because the statutory wording in s23(5) requires a focus on the revealed
information, not the requested information. On the facts the likelihood of the
requested information falling within the class is likely to be a relevant factor, but
it does not necessarily mean that s 23(5) is engaged. It may, as the Upper Tribunal
highlighted in Savic, point the other way: the known fact that it is more likely
than not, by its nature, that the requested information will include information
concerning the involvement of one or more s 23(3) bodies, may mean that
compliance with s 1(1)(a) will not involve the disclosure of any of the information
referred to in s 23 (see Savic para 98(i), (ii) and (iv)).
56. The question of whether or not s 23(5) is engaged needs to be answered in
accordance with the wording of s 23(5): would a ‘yes’ or ‘no’ answer involve the
disclosure of any information, whether or not already recorded, which was
directly or indirectly supplied to the public authority by, or relates to, any of the
s 23(3) bodies.
57. In terms of the scope of the term ‘relates to’ we note that the Upper Tribunal
questioned whether information that indicates that s 23(3) bodies were not
involved ‘relate to’ those bodies.
58. We note also that the Upper Tribunal raised the question of how any information
within the ambit of the request that does not merit an NCND response is to be
identified and dealt with under FOIA.
Section 24 (2)
59. Section 24(2) provides:
The duty to confirm or deny does not arise if, or to the extent that, exemption from section
1(1)(a) is required for the purpose of safeguarding national security.
60. Section 24 is not an absolute exemption and therefore under s 2(1) where, in all
the circumstances of the case, the public interest in maintaining the exclusion of
the duty to confirm or deny outweighs the public interest in disclosing whether
the public authority holds the information.
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Section 30(3) Investigations and proceedings conducted by public authorities
61. Under s 30 (3) the duty to confirm or deny does not arise in relation to information
which is, or if it were held by the public authority would be, exempt information
by virtue of subsection (1) or (2).
62. Sections 30(1) and (2) provide that information is exempt information if it has
been held by the authority for the purposes of certain investigations and
proceedings. Under s 30(1) and (2):
(1) Information held by a public authority is exempt information it if has at any time
been held by the authority for the purpose of –
(a) Any investigation which the public authority has a duty to conduct with a view to it
being ascertained –
(i) whether a person should be charged with an offence, or
(ii) whether a person charged with an offence is guilty of it,
(b) any investigation which is conducted by the authority and in the circumstances may
lead to a decision by the authority to institute criminal proceedings which the
authority has power to conduct, or
(c) any criminal proceedings which the authority has power to conduct.
(2) Information held by a public authority is exempt information if –
(a) it was obtained or recorded by the authority for the purposes of its functions relating
to-
(i) investigations falling within subsection (1)(a) or (b),
(ii) criminal proceedings which the authority has power to conduct […]
(3) The duty to confirm or deny does not arise in relation to information which is (or if
it were held by the public authority would be) exempt information by virtue of
subsection (1) or (2).
63. Sections 30(1) and (2) are class-based exemptions. There is no requirement for a
public authority to demonstrate prejudice to be engaged.
S 31(3) Law enforcement
64. Section 31(3) provides that the duty to confirm or deny does not arise if, or to the
extent that, compliance with section 1(1)(a) would, or would be likely to,
prejudice any of the matters mentioned in subsection (1).
65. Section 31 is not an absolute exemption and therefore under s 2(1) where, in all
the circumstances of the case, the public interest in maintaining the exclusion of
the duty to confirm or deny outweighs the public interest in disclosing whether
the public authority holds the information.
66. The matters mentioned in subsection (1) are:
(a) the prevention and detection of crime,
(b) the apprehension or prosecution of offenders,
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(c) the administration of justice,
(d) the assessment or collection of any tax or duty or of any imposition of a similar
nature,
(e) The operation of the immigration controls,
(f) The maintenance of security and good order in prisons or in other institutions
where persons are lawfully detained,
(g) The exercise by any public authority of its functions for any of the purposes
specified in subsection (2),
(h) Any civil proceedings which are brought by or on behalf of a public authority and
arise out of an investigation conducted, for any of the purposes specified in
subsection (2), by or on behalf of the authority by virtue of Her Majesty’s
prerogative or by virtue of powers conferred by or under an enactment, or
(i) Any inquiry held under the Inquiries into Fatal Accidents and Sudden Deaths etc
(Scotland) Act 2016 to the extent that the inquiry arises out of an investigation
conducted, for any of the purposes specified in subsection (2), by or on behalf of the
authority by virtue of Her Majesty’s prerogative or by virtue of powers conferred
by or under an enactment.
67. The exemption and the exclusion are prejudice based. ‘Would or would be likely
to’ means that the prejudice is more probable than not or that there is a real and
significant risk of prejudice.
Section 27(4) International relations
68. S 27(4) provides:
The duty to confirm or deny does not arise if, or to the extent that, compliance with
section 1(1)(a) –
(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1),
or
(b) Would involve the disclosure of any information (whether or not already recorded)
which is confidential information obtained from a State other then the United Kingdom
or from an international organisation or an international court.
69. Section 27 is not an absolute exemption and therefore under s 2(1) where, in all
the circumstances of the case, the public interest in maintaining the exclusion of
the duty to confirm or deny outweighs the public interest in disclosing whether
the public authority holds the information.
70. The matters mentioned in s 27(1) are:
(a) Relations between the United Kingdom and any other State,
(b) Relations between the United Kingdom and any international organisation or
international court,
(c) The interests of the United Kingdom abroad, or
(d) The promotion or protection by the United Kingdom of its interests abroad.
Section 40(5B) personal information
71. Section 40(5B) (as introduced by schedule 19, part 1, Data Protection Act 2018
provides that
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(5B) The duty to confirm or deny does not arise in relation to other information if or to
the extent that any of the following applies—
(a) giving a member of the public the confirmation or denial that would have to be given
to comply with section 1(1)(a)—
(i) would (apart from this Act) contravene any of the data protection principles, or
(ii) would do so if the exemptions in section 24(1) of the Data Protection Act 2018 (manual
unstructured data held by public authorities) were disregarded;
(b) giving a member of the public the confirmation or denial that would have to be given
to comply with section 1(1)(a) would (apart from this Act) contravene Article 21 of the
GDPR (general processing: right to object to processing);
(c) on a request under Article 15(1) of the GDPR (general processing: right of access by
the data subject) for confirmation of whether personal data is being processed, the
information would be withheld in reliance on a provision listed in subsection (4A)(a);
(d) on a request under section 45(1)(a) of the Data Protection Act 2018 (law enforcement
processing: right of access by the data subject), the information would be withheld in
reliance on subsection (4) of that section.…
72. Under s 2(1) the exclusion under s 40(5B) will only apply where, in all the
circumstances of the case, the public interest in maintaining the exclusion of the
duty to confirm or deny outweighs the public interest in disclosing whether the
public authority holds the information.
Issues
Section 23(5)
73. Under s 23(5) the issue we have to determine is: would confirming or denying
whether or not the Police held information held by what was then called Special
Branch relating to the National Front in the relevant years involve the disclosure
of information that relates to a s 23(3) body?
74. We do not accept that this question can be answered simply by concluding, on
the balance of probabilities, on the evidence before the tribunal that any
information relating to the work of Special Branch would relate to, or have been
supplied by, a s 23(3) body.
75. In our view this issue can be broken down into the following questions:
75.1. What is the revealed information? This can be made up of:
75.1.1. Any information that is expressly communicated to the public by a ‘yes’ or ‘no’
answer, and
75.1.2. Any other information which would effectively be communicated to the public
by a ‘yes’ or ‘no’ answer because of the inferences the public would draw from
the expressly communicated information.
75.2. Is this information already in the public domain?
75.3. If so, what is the relevance of that to s 23(5)?
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75.4. Does the revealed information ‘relate to’ a s 23(3) body as a matter of ordinary
language?
75.5. If so, did Parliament not intend such information to be covered by the absolute
section 23 exemption?
76. It will suffice if either a ‘yes’ or a ‘no’ answer would engage s 23(5).
Section 24(2)
77. The issues under s 24(2) are:
77.1. Is s 24(2) engaged, i.e. is exemption from the duty to confirm or deny required
for the purposes of safeguarding national security?
77.2. If so, in all the circumstances of the case, does the public interest in maintaining
the exclusion of the duty to confirm or deny outweigh the public interest in
disclosing whether the public authority holds the information.
Section 30(3)
78. The issues under s 30(3) are:
78.1. Is the request for information which is, or if it were held by the public authority
would be, exempt information by virtue of subsection (1) or (2)?
78.2. If so, in all the circumstances of the case, does the public interest in maintaining
the exclusion of the duty to confirm or deny outweigh the public interest in
disclosing whether the public authority holds the information.
Section 31(3)
79. The issues under s 31(3) are:
79.1. Would a confirmation or denial that the information was held prejudice or be
likely to prejudice any of the matters mentioned in subsection 31(1)?
79.2. If so, in all the circumstances of the case, does the public interest in maintaining
the exclusion of the duty to confirm or deny outweigh the public interest in
disclosing whether the public authority holds the information.
Section 27(4)
80. The issues under s 27(4) are:
80.1. Would a confirmation or denial that the requested information was held
prejudice or be likely to prejudice relations between the United Kingdom and
another State?
80.2. If so, in all the circumstances of the case, does the public interest in maintaining
the exclusion of the duty to confirm or deny outweighs the public interest in
disclosing whether the public authority holds the information.
Section 40(5B)
81. The issues under s 40(5B) are:
15
81.1. Would the giving to a member of the public of the confirmation or denial that
would have to be given to comply with section 1(1)(a) (apart from this Act)
contravene any of the data protection principles or would do so if the
exemptions in section 24(1) of the Data Protection Act 2018 (manual
unstructured data held by public authorities) were disregarded. Similarly,
would giving a member of the public the confirmation or denial that would
have to be given to comply with section 1(1)(a) (apart from this Act) contravene
Article 21 of the GDPR (general processing: right to object to processing)? On
a request under Article 15(1) of the GDPR (general processing: right of access
by the data subject) for confirmation of whether personal data is being
processed, the information would be withheld in reliance on a provision listed
in subsection (4A)(a); alternatively, on a request under section 45(1)(a) of the
Data Protection Act 2018 (law enforcement processing: right of access by the
data subject), the information would be withheld in reliance on subsection (4)
of that section If so, in all the circumstances of the case, does the public interest
in maintaining the exclusion of the duty to confirm or deny outweigh the
public interest in disclosing whether the public authority holds the information.
The role of the tribunal
82. The tribunal’s remit is governed by s.58 FOIA. This requires the tribunal to
consider whether the decision made by the Commissioner is in accordance
with the law or, where the Commissioner’s decision involved exercising
discretion, whether she should have exercised it differently. The Tribunal may
receive evidence that was not before the Commissioner, and may make
different findings of fact from the Commissioner.
Discussion and conclusions
Consistency of response
83. In some circumstances it is important for a public authority to consistently give
a NCND response to a particular category of request: if the Police adopt an
approach whereby they only rely on the exclusion where, for example, they
hold the information requested or where there has been Security Services
involvement in a particular case, then it is easy to see that the cat is out of the
bag in any event. The Police have asserted the need for consistency to support
their NCND stance in this case. We find that in this case the need for
consistency does not apply: The reason for not applying a NCND response
under s23(5) is that the matter is more properly covered by another qualified
exclusion – differentiating between other requests on this basis does not reveal
anything. In relation to the qualified exclusions, differentiating is done on the
basis that the information is already in the public domain, again differentiating
on this basis does not reveal anything.
Information in the public domain
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84. We have been provided with a transcript of the BBC programme ‘True Spies’.
In it ex-Special Branch Officers provide details of Special Branch and MI5
surveillance of the National Front. It does not identify the specific years in
which this took place, but refers to ‘the mid-70s’ and that it continued for ‘many
years’. This is not based on a ‘leak’ from Special Branch. The press statement
states that Special Branch assisted the BBC with their research on this
programme. The Police or the Security Services have not issued any statements
confirming or denying any information in the programme.
85. Having read the transcripts we find that, despite the lack of official
confirmation or denial, any viewer, in the light of the statement that Special
Branch had assisted the BBC with their research, would reasonably infer that
Special Branch and MI5 had carried out surveillance of the National Front in
1974 and 1975 and probably in 1983. We find, therefore that is already known
that Special Branch and MI5 were involved with the National Front throughout
that period.
Section 23(5)
86. Under s 23(5) the issue we have to determine is: would confirming or denying
that the Police held information held by what was then called Special Branch
relating to the National Front in the relevant years involve the disclosure of
information that relates to a s 23(3) body?
87. We do not accept that this question can be answered simply by concluding, on
the balance of probabilities, on the evidence before the tribunal that any
information relating to the work or Special Branch would relate to, or have
been supplied by, a s 23(3) body.
88. As stated, in our view this can be broken down into the following questions:
88.1. What is the revealed information? This can be made up of:
88.1.1. Any information that is expressly communicated to the public by a ‘yes’ or ‘no’
answer, and
88.1.2. Any other information which would effectively be communicated to the public
by a ‘yes’ or ‘no’ answer because of the inferences the public would draw from
the expressly communicated information
88.2. Is this information already in the public domain?
88.3. If so, what is the relevance of that to s 23(5)?
88.4. Does the revealed information ‘relate to’ a s 23(3) body as a matter of ordinary
language?
88.5. If so, did Parliament not intend such information to be covered by the absolute
section 23 exemption?
89. It will suffice if either a ‘yes’ or a ‘no’ answer would engage s 23(5).
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What is the revealed information?
90. If the Police confirmed that they held information within the scope of the
request, what would this reveal? Explicitly it would reveal that Special Branch
held information relating to the National Front. The inference that the public
would draw from that would be that Special Branch had been involved to some
extent in investigating the National Front in those years. This does not, in itself,
engage s 23(5).
91. Would the public also infer any involvement by the Security Services? We do
not accept that this question can be answered simply by concluding, on the
balance of probabilities, on the evidence before the tribunal that any
information relating to the work or Special Branch would relate to, or have
been supplied by, a s 23(3) body.
92. The police’s submissions and evidence and the Decision Notice focus on the
question of whether or not the information held related to, or was supplied by,
a s 23(3) body. They do not separately address the question of what inferences
would be drawn by a member of the public from a ‘yes’ or ‘no’ answer.
93. In our view, given the publicly known nature of the work of Special Branch
and the nature of the National Front, a member of the public would probably
infer from the fact that Special Branch held information relating to the National
Front, that the Security Services were also probably involved to some extent in
some capacity with some manner of Special Branch investigation into the
National Front in those years.
94. A ‘no’ answer would reveal that Special Branch did not hold information
relating to the National Front in those particular years. The inference that the
public would draw from this about the Security Services less clear: it could be
reasonably inferred that Special Branch had not been involved in investigating
the National Front in those years, or it could be reasonably inferred that they
no longer held any written information on any investigations. Despite the
passage of time we think that it would be reasonable for the public to conclude
that the absence of records probably indicates that Special Branch had not been
actively involved in investigating the National Front in those particular years.
None of these conclusions, in themselves, engage s 23(5).
95. What would the public infer from a ‘no’ response about any involvement by
the Security Services? It would not be reasonable to infer that there had been
no Security Services interest or engagement or investigation into the activities
of the National Front in those years. As above, it could be reasonably inferred
that the Security Services were probably not involved in a Special Branch
investigation in to the National Front in those particular years.
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Is this information already in the public domain, and what is the consequence of that?
96. Any members of the public who saw the ‘True Spies’ programme will already
have drawn the inference that the Security Services were involved to some
extent in some capacity with some manner of investigation into the National
Front. Although the involvement of MI5 has not been officially confirmed,
neither will it be officially be confirmed by a ‘yes’ or ‘no’ answer: it is purely
an inference that the public is expected to draw from the information expressly
communicated.
97. What is the relevance of this to s 23(5)? In the Commissioner’s response she
submits, at para 17, that whether or not the activities of Special Branch are well
established (or believed to be) is not a relevant consideration in the application
of s 23(5). We disagree. Section 23(5) only applies to the ‘disclosure’ of
information. It therefore cannot, in our view, apply to information that is
already in the public domain. This is supported by the Upper Tribunal
decisions in Savic and Corderoy.
98. The Upper Tribunal in Savic raised the question of whether or not the known
fact that the requested information by its nature would include information
concerning the involvement or otherwise of a s 23(3) body means that
compliance with s1(1)(a) will not involve the disclosure of any of the
information referred to in s 23(5). We understand the Upper Tribunal to have
raised this question because if it is already known that the requested
information will include information concerning the involvement or otherwise
of a s 23(3) body, simply giving a ‘yes’ or ‘no’ answer will not disclose any
further information. The extent of information already in the public domain
was therefore seen as relevant.
99. Further, in Corderoy the Upper Tribunal noted that ‘because of the expected
and confirmed involvement of the security bodies a ‘neither confirm nor deny
approach’ was correctly not advanced’. Again, the extent of information in the
public domain was seen as relevant.
100. In our view, therefore, it is arguable that because the public is likely to have
already drawn the inference that the security bodies were involved with the
National Front, no further information will be ‘disclosed’ by a ‘yes’ or ‘no’
answer, because it would officially confirm the involvement of Special Branch,
not the Security Services. However, we have concluded that because the
request relates to specific years, we find that the inference which will be drawn
is slightly more specific and therefore different to that already in the public
domain and therefore there is some limited ‘disclosure’ in this case.
Does the revealed information ‘relate to’ a s 23(3) body as a matter of ordinary language?
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101. Firstly in relation to the information revealed by a ‘yes’ answer, we find that as
a matter of ordinary language the revealed information that indicates that the
Security Services were probably involved to some extent in some capacity with
some manner of Special Branch investigation into the National Front in those
years does ‘relate to’ a s 23(3) body.
102. In relation to the information revealed by a ‘no’ answer, we find that
information that indicates that the Security Services were probably not
involved in a Special Branch investigation into the National Front in those
years does as a matter of ordinary language ‘relate to’ a s 23(3) body. Although
the Upper Tribunal raised the question in Savic of whether information that
indicates that s 23(3) bodies were not involved ‘relates’ to those bodies, we are
prepared to accept that as a matter of ordinary language it does.
If so, did Parliament not intend such information to be covered by the absolute section 23
exemption?
103. We have reached the conclusion that Parliament did not intend such
information to be covered by the absolute s 23 exemption for the following
reasons.
103.1. The basis on which the information ‘relates to’ a s 23(3) body is because of the
conclusions that can be drawn on the basis of the nature of the relationship
between Special Branch and the Security Services. It therefore applies to all
Special Branch activities. The Commissioner confirms in its response that it
takes the position that s 23 is engaged in relation to any information relating to
the work of Special Branch.
103.2. Parliament can be taken to have known about the nature of Special Branch
activities and its close relationship with the Security Services.
103.3. It did not include Special Branch in the list of s 23(3) bodies.
103.4. It cannot therefore have intended that all its activities would fall within s 23.
103.5. ‘Relates to’ should therefore not be interpreted so widely that it would have
this effect.
103.6. The revealed information falls obviously within the qualified exclusion in s
30(3) (investigation and proceedings conducted by public authorities).
104. We have considered whether what we have decided is consistent with para 59
of Corderoy in which the Upper Tribunal stated:
“59….We reiterate that Parliament clearly did not intend information to be obtained from or
about security bodies through the back door and we acknowledge that there can be difficulty:
(a) in an outsider identifying what the revelatory nature of information, if any, which is said to be
subject to the absolute section 23 exemption might be, and so
(b) in the application of an approach that asks whether the information is or might be revelatory of
the Security Services’ activities, their intelligence or intelligence sources, and that
These points support a wide approach to the reach of section 23.”
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105. We find that it is consistent. In our view, were a request made to the Police for
information held by Special Branch on MI5 involvement in a specific case, they
would be entitled to refuse to confirm or deny whether they held that
information. They could do this consistently in every request which asked
whether or not they held information on MI5 involvement. This is because
Parliament did not intend information to be obtained from or about Security
bodies through the back door. This is different in our view from consistently
refusing to confirm or deny any information which reveals anything about
Special Branch activity on the basis that it works closely with the Security
Services. If Parliament had intended all Special Branch activities to be covered
by s 23 it would have included them in the list.
106. The above example also illustrates the point that the Commissioner is correct
to observe that the Upper Tribunal in Corderoy did not purport to set down a
general rule that the s 23 exemption could only be used if no other (qualified)
exemptions were applicable. The existence of other applicable qualified
exemptions is relevant to a consideration of Parliament’s intentions but it is not
the only relevant factor and is not determinative of the issue.
107. For the above reasons we conclude that s 23(5) is not engaged in this case.
Section 24(2)
Is section 24(2) engaged?
108. Is exemption from the duty to confirm or deny required for the purposes of
safeguarding national security?
109. The Second Respondent submits that it would be contrary to the public interest
to reveal the nature and scope of any Special Branch investigations into
extremist organisations where it would then be ascertainable by confirming or
denying whether organisations were of interest to Special Branch (s 24(2)). It is
unclear to us how confirming or denying whether organisations were of
interest to Special Branch would reveal the ‘nature and scope’ of any Special
Branch investigations into extremist organisations. What would be revealed is
set out in paragraphs 90-95 above. Further, the fact that the National Front were
of interest to Special Branch during that broad period of time is already in the
public domain.
110. The Police rely on their responses of 15 October 2018 and 25 May 2018. In the
letter of 15 October 2018 the Police states that confirming or denying whether
information in respect of any individual or organisation is held by Special
Branch would clearly indicate the nature and scale of police involvement in
areas of preventing and detecting crime, the apprehension or prosecution of
offenders and the administration of justice. We are unclear as to how a
21
confirmation or denial could indicate the ‘nature and scale’ of police
involvement.
111. The letter states that disclosure of whether or not information was held in
relation to the National Front would impair the effectiveness of the partnership
relationship between Special Branch and s 23(3) bodies. It would undermine
the ability of Special Branch and the Security Service to share and exchange
information and intelligence in the knowledge that such intelligence will be
managed by all parties in an appropriately confidential manner. There is
nothing in an indication by Special Branch that it holds or does not hold
information about the National Front which suggests that they will not manage
intelligence in an appropriately confidential manner.
112. The Police argue that they have to take a consistent approach.
113. It is not suggested that Special Branch should determine whether or not to
apply s 24(2) on the basis of whether or not the Security Services are involved
in the matter to which the request relates, or on the basis of whether or not
information is held. The Tribunal accepts that differentiation on this basis
would reveal security service involvement or whether or not information is
held. However, Special Branch should take account of whether or not the
requested information is already in the public domain when deciding whether
or not exemption from the duty to confirm or deny is required for the purposes
of national security. Differentiating on this basis would not lead to the
consequences set out in the letter such as identifying the involvement of the
security services.
114. Differentiating on the basis that this information is already in the public
domain does not allow those who are intent on causing harm to learn more
about the nature and extent of Special Branch and Security Service interest,
because the fact that Special Branch and MI5 were interested in the National
Front is already in the public domain. A confirmation or denial in this case
would not therefore facilitate those intent on causing harm taking action to
avoid the attention of authorities.
115. We cannot see how official confirmation of a known fact (that the National
Front were of interest to Special Branch and the Security Service) could impair
prevention and detection of crime, render security measures less effective,
compromise the security of policing information, compromise confidential
sources, or place individuals at risk (victims, informants and witnesses) or
deter individuals and partner organisations from contacting the police. The
letter does not explain how these consequences might follow.
116. We note that there is no suggestion that any of these consequences have
already resulted from the broadcasting of the ‘True Spies’ programme. There
is no suggestion that Special Branch, having assisted the BBC with their
22
research, attempted to prevent the ex-officers from making the statements they
did, or from preventing the programme from being broadcast. This is
surprising given the adverse consequences put forward by the Police. It is not
clear to us what, if any, additional consequences the Police asserts would flow
from the limited extra information revealed by a confirmation or denial set out
in paragraph 100 above.
117. We accept that the Police are in a better position than the Tribunal to assess the
potential consequences of the public becoming aware of Special Branch interest
in the National Front, but we find that any adverse consequences flow from
the broadcasting of the ‘True Spies’ programme, not from any later
confirmation or denial. In this case the cat is already out of the bag.
118. On this basis we conclude that s24(2) is not engaged because we do not accept
that exemption from the duty to confirm or deny is required for the purposes
of safeguarding national security.
119. We do not therefore need to consider the public interest balance, but we do so
in case we are wrong to conclude that s 24(2) is not engaged. The question for
us to determine is whether, in all the circumstances of the case, the public
interest in maintaining the exclusion of the duty to confirm or deny outweighs
the public interest in disclosing whether the public authority holds the
information.
120. We find that the public interest in maintaining the exclusion does not outweigh
the public interest in disclosing whether the public authority holds the
information. We do not think that the fact of Special Branch interest in the
National Front being in the public domain reduces the public interest in
disclosing whether or not the public authority holds the information. The
public authority’s confirmation or denial is a gateway to either disclosure of
that information, confirmation that the information is not held or the
application of a substantive exemption. The public interest in obtaining a
confirmation or denial is therefore not diminished by Special Branch interest
in the National Front already being in the public domain.
121. In contrast, we find that the public interest in maintaining the exclusion of the
duty is significantly diminished by the fact that the public is already aware of
Special Branch and MI5 interest in the National Front.
122. In conclusion, if we had had to decide the public interest balance under s 24(2)
we would have concluded that it favoured confirming or denying that the
information was held.
Section 30(3)
23
123. We find that the request is for information which is, or if it were held by the
public authority would be, by its nature exempt information by virtue of
subsection 30(1) or (2). The question for us is therefore whether or not the
public interest in maintaining the exclusion of the duty to confirm or deny
outweighs the public interest in confirming or denying that the information is
held.
124. We conclude that it does not. We rely on the reasons set out under s 24(2) above,
both in relation to whether or not the s24(2) exemption is engaged and on the
public interest balance. In addition, we have already considered and rejected
the arguments about the dangers of departing from a consistent NCND
response. Our primary reason for concluding that the public interest favours
confirming or denying that the information is already held, is that any harm
that flows from the confirmation or denial would already have occurred as a
result of the fact that Police holds information being in the public domain. We
also note that the request relates to the years 1974, 1975 and 1983 and we find
that confirming or denying that such information is held is unlikely to
prejudice any current investigation into the National Front.
Section 31(3)
125. For the reasons already set out under 24(2) and 30(3) above, we find that
confirming or denying whether the requested information was held would not
prejudice or be likely to prejudice any of the matters mentioned in subsection
31(1). S 31(3) is therefore not engaged, but if it had been we would have
concluded that the public interest favoured confirming or denying for the
reasons set out above.
Section 27
126. We do not accept that a confirmation or denial that the information requested
was held would prejudice or be likely to prejudice relations between the
United Kingdom and another State. The Police assert that the impact of
confirming or denying whether the information was held would mean that the
Police and the United Kingdom would lose the confidence of their
international partners and consequently this would impact negatively on the
global fight against extremist groups.The Police state that they and security
bodies both within the UK and internationally need to be able to work together
in complete trust. If this is not maintained, the UK’s ability to protect and
promote UK interests through international relations will be disadvantaged.
127. We do not accept that this prejudice will result from the confirmation or denial
of whether the requested information is held. We reiterate our reasoning under
s 24 above: We cannot see how official confirmation of a known fact (that the
National Front were of interest to Special Branch and the Security Service)
could cause a loss of confidence in international partners or destroy the trust
24
in the way asserted by the Police. We repeat our observation above that there
is no suggestion that any of these consequences have already resulted from the
broadcasting of the ‘True Spies’ programme. There is no suggestion that
Special Branch, having assisted the BBC with their research, attempted to
prevent the ex-officers from making the statements they did, or from
preventing the programme from being broadcast. This is surprising given the
adverse consequences for international relations put forward by the Police.
128. Again, we accept that the Police are in a better position than the Tribunal to
assess the potential consequences of the public becoming aware of Special
Branch interest in the National Front, but we find that any adverse
consequences flow from the broadcasting of the ‘True Spies’ programme, not
from any later confirmation or denial.
129. The Police also assert that confirming or denying details of any possible
engagements with other countries could potentially damage bilateral
relationships between the UK and other states. The Police do not explain how
confirming or denying that the requested information is held would confirm
or deny details of any possible engagement with other countries and we do not
accept that it would. We do not accept that confirming or denying that this
information was held would potentially highlight engagements that had taken
place between the UK and another state.
130. For those reasons we do not need to go on to consider the public interest
balance, but we would have concluded that the public interest in maintaining
the exclusion of the duty to confirm or deny was outweighed by the public
interest in disclosing whether the public authority holds the information for
the reasons set out above.
Section 40(5B)
131. We do not accept that confirming or denying that information is held in
relation to a group would contravene any of the data protection principles,
even if it is likely that the requested information will contain some individuals’
private data. A confirmation or denial in relation to information held about a
group does not tell the public that information is held in relation to any living
individual. We do not therefore need to go on to consider the public interest
balance under this section.
Next steps
132. The tribunal considered whether or not to issue a substitute decision notice.
Such a notice would have required the public authority to issue a fresh
response confirming or denying whether it held information within the scope
of the response and, if it does hold such information, at the same time
communicating the information to the complainant or, if the Public Authority
25
is to any extent relying on a claim that information is exempt information,
giving the complainant a notice under s 17 FOIA specifying the exemption in
question and, stating, if that would not otherwise be apparent, why the
exemption applies and, if applicable, the reasons for claiming that the public
interest in maintaining the exemption outweighs the public interest in
disclosing the information.
133. The tribunal has decided that in the light of the Upper Tribunal judgments in
Information Commissioner v E Malnick and The Advisory Committee on
Business Appointments [2018] UKUT 72 (AAC) and NHS England V
Information Commissioner and Dean [2019] UKUT 145 (AAC) that the
consideration of potential further exemptions should be dealt with by this
Tribunal through further submissions and deliberations rather than, in effect,
by remitting the matter to the public authority and, as a necessary consequence,
the Information Commissioner.
134. The tribunal was unsure as to whether or not Malnick was intended to apply
in a ‘gateway’ appeal such as this one, i.e. when the public authority has either
given a NCND response or has relied on, for example, s 12 or s 14, because the
public authority has not yet complied with the duty in s 1(1)(a) FOIA.
135. However we concluded that the general tenor of Malnick and subsequent
Upper Tribunal decisions is that the first tier tribunal, once seized, should
determine the issue. Pragmatically, the matter is likely to be resolved more
quickly if we determine the issue on the basis of further submissions rather
then sending it back to the public authority. We have therefore issued
appropriate case management directions.
Signed Sophie Buckley
Judge of the First-tier Tribunal
Date: 18 July 2019
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