IN THE FIRST–TIER TRIBUNAL EA/2019/0014
(INFORMATION RIGHTS)
In the matter of an appeal under section 57 of the
Freedom of Information Act 2000.
Between:
PROFESSOR TIM CROOK
Appellant:
and
THE INFORMATION COMMISSIONER
First Respondent:
and
THE COMMISSIONER OF POLICE FOR THE METROPOLIS
Second Respondent
Hearing: on 19 May 2021.
Decision: Deliberations (after final submissions received) and Appeal Dismissed
on 1 July 2021 and Promulgated on 23 July 2021.
Before: Brian Kennedy QC, Rosalind Tatam and David Cook
Representation: Tim Crook, the Appellant as Litigant in person
John Goss, of Counsel for the Second Respondent
DECISION
Introduction:
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[1] This decision relates to an appeal brought under section 57 of the Freedom of
Information Act 2000 (“the FOIA”). This appeal is against the decision of the Information
Commissioner, First Respondent herein (“the Commissioner”), contained in a Decision
Notice (“DN”) dated 20 December 2018 (reference FS50788439) which is a matter of
public record.
The Tribunal have been provided with an Open Bundle (“OB”) (comprising of; A)
Pleadings and Tribunal Case Management Directions; B) Correspondence Relating to
the requests for information; C) Correspondence Relating to the Commissioner’s
Investigation and D) Witness statements and Appellant’s additional submissions,
together with Additional Open Documents including voluminous related documentation
and extensive lists of Authorities presented by the Appellant.
Background:
[2] Full details of the background to this appeal, the Appellant’s request for information
and the Commissioner’s decision are set out in the Decision Notice and not repeated
here, other than to state that, in brief, the appeal concerns the question of whether the
Public Authority herein and Second Respondent, the Metropolitan Police Service (“MPS”)
was correct to determine that disclosing whether the requested information was held or
was not held, i.e. Neither Confirmed not Denied (“NCND”) was exempt from disclosure
as it related to matters of national security, pursuant to section 23(5) FOIA. The Appellant
may be conveniently summarised in words from a related case citing from
EA/2019/00730 as follows; “historical project about the political affiliations and activities
of students and staff at the institution. He understands that the Security Service (‘MI5’)
has historical files (pre-1989 when MI5 became a statutory body) about its surveillance
of such students and staff.”
Chronology:
26 Jan 2018 The Appellant’s request for disclosure under FOIA of files and
information generated / held by its Special Branch (that was
absorbed into Counter-Terrorism Command in 2006) regarding
certain staff and students at Goldsmith’s College in the period 1917
to 1989
23 Feb 2018 MPS refuses request citing ss23 (5), 24(2), 27(4), 30(3), 31(3) and
40(5) of FOIA
24 July 2018 MPS maintains position following an internal review; Prof Crook
complains to the Commissioner
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20 Dec 2018 Commissioner’s Decision Notice accepting that section 23(5) of the
FOIA is engaged.
Relevant Legislation:
S2(1) FOIA – Effect of the exemptions in Part II
(1) Where any provision of Part II states that the duty to confirm or deny does not arise
in relation to any information, the effect of the provision is that 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, section 1(1)(a) does not apply.
S23 FOIA - Information supplied by, or relating to, bodies dealing with security
matters
(1) 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 sub-section (3).
(3) The bodies referred to in subsections (1) and (2) are—
(a)the Security Service,
(b)the Secret Intelligence Service,
(c)the Government Communications Headquarters,
(d)the Special Forces,
(e)the Tribunal established under section 65 of the Regulation of Investigatory
Powers Act 2000,
(f)the Tribunal established under section 7 of the Interception of Communications
Act 1985,
(g)the Tribunal established under section 5 of the Security Service Act 1989,
(h)the Tribunal established under section 9 of the Intelligence Services Act 1994,
(i)the Security Vetting Appeals Panel,
(j)the Security Commission,
(k)the National Criminal Intelligence Service,
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(l)the Service Authority for the National Criminal Intelligence Service.
(m)the Serious Organised Crime Agency.
(n) the National Crime Agency.
(o)the Intelligence and Security Committee of Parliament.
(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 subsection (3).
(27) International relations.
(1)Information is exempt information if its disclosure under this Act would, or would be
likely to, prejudice—
(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.
(2)Information is also exempt information if it is confidential information obtained from a
State other than the United Kingdom or from an international organisation or international
court.
(3)For the purposes of this section, any information obtained from a State, organisation
or court is confidential at any time while the terms on which it was obtained require it to
be held in confidence or while the circumstances in which it was obtained make it
reasonable for the State, organisation or court to expect that it will be so held.
(4)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 than the United Kingdom
or from an international organisation or international court.
(5)In this section—
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• “international court” means any international court which is not an international
organisation and which is established—
(a) by a resolution of an international organisation of which the United Kingdom is a
member, or
(b) by an international agreement to which the United Kingdom is a party;
• “international organisation” means any international organisation whose
members include any two or more States, or any organ of such an organisation;
• “State” includes the government of any State and any organ of its government,
and references to a State other than the United Kingdom include references to
any territory outside the United Kingdom.
(30) Investigations and proceedings conducted by public authorities.
(1)Information held by a public authority is exempt information if it has at any time been
held by the authority for the purposes 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,
(iii)investigations (other than investigations falling within subsection (1)(a) or (b)) which
are conducted by the authority for any of the purposes specified in section 31(2) and
either by virtue of Her Majesty’s prerogative or by virtue of powers conferred by or under
any enactment, or
(iv)civil proceedings which are brought by or on behalf of the authority and arise out of
such investigations, and
(b)it relates to the obtaining of information from confidential sources.
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(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).
(4)In relation to the institution or conduct of criminal proceedings or the power to conduct
them, references in subsection (1)(b) or (c) and subsection (2)(a) to the public authority
include references—
(a)to any officer of the authority,
(b)in the case of a government department other than a Northern Ireland department, to
the Minister of the Crown in charge of the department, and
(c)in the case of a Northern Ireland department, to the Northern Ireland Minister in
charge of the department.
(5)In this section—
• “ criminal proceedings ” includes service law proceedings (as defined by section
324(5) of the Armed Forces Act 2006);
• “ offence ” includes a service offence (as defined by section 50 of that Act). ]
(6)In the application of this section to Scotland—
(a)in subsection (1)(b), for the words from “a decision” to the end there is substituted “ a
decision by the authority to make a report to the procurator fiscal for the purpose of
enabling him to determine whether criminal proceedings should be instituted ”,
(b)in subsections (1)(c) and (2)(a)(ii) for “which the authority has power to conduct” there
is substituted “ which have been instituted in consequence of a report made by the
authority to the procurator fiscal ”, and
(c)for any reference to a person being charged with an offence there is substituted a
reference to the person being prosecuted for the offence.
(31) Law enforcement.
(1)Information which is not exempt information by virtue of section 30 is exempt
information if its disclosure under this Act would, or would be likely to, prejudice—
(a)the prevention or detection of crime,
(b)the apprehension or prosecution of offenders,
(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,
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(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.
(40) Personal information.
(1)Any information to which a request for information relates is exempt information if it
constitutes personal data of which the applicant is the data subject.
(2)Any information to which a request for information relates is also exempt information
if—
(a)it constitutes personal data which does not fall within subsection (1), and
(b)the first, second or third condition below is satisfied.
(3A)The first condition is that the disclosure of the information to a member of the public
otherwise than under this Act—
(a)would contravene any of the data protection principles, or
(b)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.
(3B)The second condition is that the disclosure of the information to a member of the
public otherwise than under this Act would contravene Article 21 of the GDPR (general
processing: right to object to processing).
(4A)The third condition is that—
(a)on a request under Article 15(1) of the GDPR (general processing: right of access by
the data subject) for access to personal data, the information would be withheld in
reliance on provision made by or under section 15, 16 or 26 of, or Schedule 2, 3 or 4 to,
the Data Protection Act 2018, or
(b)on a request under section 45(1)(b) of that Act (law enforcement processing: right of
access by the data subject), the information would be withheld in reliance on subsection
(4) of that section.
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(5A)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).
(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.(6)
S57 FOIA – Appeal against notices served under Part IV
(1)Where a decision notice has been served, the complainant or the public authority may
appeal to the Tribunal against the notice.
(2)A public authority on which an information notice or an enforcement notice has been
served by the Commissioner may appeal to the Tribunal against the notice.
(3)In relation to a decision notice or enforcement notice which relates—
(a)to information to which section 66 applies, and
(b)to a matter which by virtue of subsection (3) or (4) of that section falls to be determined
by the responsible authority instead of the appropriate records authority,
subsections (1) and (2) shall have effect as if the reference to the public authority were
a reference to the public authority or the responsible authority.
Rule 19(3) The Tribunal Procedure (First-tier Tribunal) (General Regulatory
Chamber) Rules 2009 – Transfer of charities case to the Upper Tribunal
(3) If a case or issue has been referred by the Tribunal under paragraph (2), the
President of the General Regulatory Chamber may, with the concurrence of the
President of the appropriate Chamber of the Upper Tribunal, direct that the case or issue
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be transferred to and determined by the Upper Tribunal for various reasons including
public interest and importance. The Registrar has provided directions and a decision in
respect of the same.
Rule 5(2) The Tribunal Procedure (First-tier Tribunal) (General Regulatory
Chamber) Rules 2009 – Transfer of charities case to the Upper Tribunal – Case
management powers
(2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings
at any time, including a direction amending, suspending or setting aside an earlier
direction.
Chapter 5 Security Service Act 1989 (“SSA 1989”)
An Act to place the Security Service on a statutory basis; to enable certain actions to be
taken on the authority of warrants issued by the Secretary of State, with provision for the
issue of such warrants to be kept under review by a Commissioner; to establish a
procedure for the investigation by a Tribunal or, in some cases, by the Commissioner of
complaints about the Service; and for connected purposes.
Section 3 Tribunal, Courts & Enforcement Act 2007
(1)There is to be a tribunal, known as the First-tier Tribunal, for the purpose of exercising
the functions conferred on it under or by virtue of this Act or any other Act.
(2)There is to be a tribunal, known as the Upper Tribunal, for the purpose of exercising
the functions conferred on it under or by virtue of this Act or any other Act.
(3)Each of the First-tier Tribunal, and the Upper Tribunal, is to consist of its judges and
other members.
(4)The Senior President of Tribunals is to preside over both of the First-tier Tribunal and
the Upper Tribunal.
(5)The Upper Tribunal is to be a superior court of record.
Commissioner’s Decision Notice in Summary:
[3] The Commissioner reminded herself that she is not under a specific duty to give
effect to any provisions of the Charter of Fundamental Rights of the European Union
when making FOI decisions. As Article 51 of the Charter makes clear, the Charter applies
to national bodies “only when they are implementing Union law”.
[4] The Appellant stated that it is a matter of acute public interest to receive and evaluate
historical information about the interference of students’ Article 8 rights by a public
authority, (in this instance MPS). The Commissioner held that “any information held by
the MPS falling within the scope of the complainant’s request would relate to, or have
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been supplied by, a body or bodies listed in section 23(3) of the FOIA.” (The
Commissioner’s conclusion was that section 23(5) of the FOIA is engaged and the
Tribunal agrees, endorses and adopts that reasoning).
[5] The Appellant said that the refusal of the MPS neither to confirm nor deny whether
or not it holds the information requested under the FOIA amounted to an infringement of
his Article 10 rights. However, the Commissioner made the Appellant aware that in the
alternative a request could have been made under common law and if refused, a judicial
review of that decision would provide an effective remedy. As s.30 and 31 are qualified,
there is a need to apply the public interest test as the release of information could be
misleading, and could compromise the MPS’ relationship with another country or its
citizens. Further information of this nature could be manipulated by malevolent intent.
[6] Section 2(1) of the FOIA allows a public authority to refuse to confirm or deny whether
it holds the requested information (the neither confirm nor deny exemption or “NCND”).
The main focus in this instance is the considerations concerning the consequences of
confirming or denying whether or not a particular type of information is held.
[7] In adopting their position, the MPS cited six different exceptions. In essence, the
Commissioner considered whether or not the MPS was entitled to adopt this approach
when referring to information that may be held by Special Branch about communists /
fascists and a visit to the Soviet Union, as they had been requested to do.
[8] In the Appellant’s subsequent request for an internal review he argued that the
decision and denial is both a “disproportionate interference with … freedom of
information rights, a wrong interpretation of the statute, and a wrong application of the
public interest balancing exercise”. Further, the Appellant argued that neither Norman
Baker MP v IC [2007] nor Secretary of State for the Home Department v Rehman [2001]
were relevant precedents justifying the NCND rule.
[9] The Commissioner accepted that for section 23(5) to be relevant, in accordance with
the Commissioner’s published guidance, the request must be “in the territory of national
security”. Therefore, a realistic possibility of both the involvement of the security body
and the public authority holding information on that involvement must be apparent.
[10] The MPS submitted that in respect of the exemption relied on, if the information
specified in the request did exist, it is very likely that it would have been obtained by, or
related to, the Security Service who fall under a protected body in accordance with
section 23(3) FOIA.
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[11] The MPS reiterated the Tribunal’s view in The Commissioner of Police of the
Metropolis vs Information Commissioner (EA/2010/0008), that the balance of
probabilities test is the correct test to apply in this instance.
[12] The Commissioner accepted that, on the balance of probabilities, any information
held by the MPS falling within the scope of the complainant’s request would relate to, or
have been supplied by, a body or bodies listed in section 23(3) of the FOIA. Her
conclusion was that section 23(5) was engaged and is an absolute exemption.
The Appellant’s Grounds of Appeal:
[13] The Appellant moved four grounds of appeal:
i The Commissioner erred in failing to recognise his right under Art. 10 European
Convention of Human Rights (“ECHR”) to the requested information, as the denial
of access to the requested information constituted an interference with his Art. 10
rights and MPS should have read down s.23(5) to give effect to his Art. 10 rights.
ii The application of s.23 (5) of FOIA to security body information that is historical
or relating to historical security body information is incompatible with Art.10 ECHR
iii If the Appellant was required to pursue an alternative route for his request for the
information under the common law, followed, if necessary, by a judicial review,
this would infringe his Art.13 right to a lawful remedy (because he could not afford
judicial review).
iv The Commissioner erred in concluding that it was appropriate to apply the abso-
lute exemption under s.23(5) FOIA and that disclosure should instead be deter-
mined following the application of a public interest balancing test.
[14] By way of clarification, the Appellant stated that he had incorrectly referenced the
fourth section as opposed to the first section in Times Newspapers Limited and Kennedy
v United Kingdom [2018], which reads as follows;
“While the Court has now recognised that Article 10 (1) of the Convention might, under
certain conditions, include a right of access to information (see Magyar Helsinki
Bizottsag v. Hungary [GC], no 18030/11, [149], 8 November 2016) it does not include a
right of access to information by a particular legislative scheme What matters, therefore,
is whether the legislative framework as a whole satisfies the requirements of Article 10
of the Convention, read in light of the Court’s most recent jurisprudence”
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[15] With regard to the Appellant’s request, he stated that the legal costs of a judicial
review would be prohibitive for a retired academic researcher with no budget for legal
fees and would therefore represent a breach of his Article 13 rights.
[16] The Appellant stated that the Commissioner failed to recognise the decision of the
Grand Chamber of the European Court in Magyar Helsinki Bizottsag v Hungary [2016],
which established the right to access information held by public authorities for individuals
who wish to apply scrutiny to decisions, processes, and procedures, seeking the
furtherance of a democratic society whilst serving the public interest. He submitted that
as an academic who specialises in social historical investigations, he falls under the
selected criteria in Magyar.
[17] The Appellant further argued with reference to paragraph [12] of The Times
Newspapers Limited and Kennedy v United Kingdom [2018] that he could not avail of a
parallel remedy under Article 10. Paragraph 12 reads as follows:
“In respect of the [...] case [...] of the European Court of Human Rights referred to
by the complainant, although not available at the time that this request was made,
the Commissioner notes that the finding in this case has now been promulgated.
On that basis, it is her opinion that the complainant’s rights under Article 10 are
not infringed by the MPS’s refusal to neither confirm nor deny (NCND) whether or
not it holds the information he has requested under the FOIA. This is because the
complainant could alternatively request the information from the MPS under
common law and that such a request would satisfy the requirements of Article 10.
If a request, formulated in this way, were then refused and the complainant
considers that he has been denied access to information in breach of Article 10, a
judicial review of that decision would provide an effective remedy.”
[18] The Appellant submitted that it is inappropriate for the “absolute exemption” of
section 23(5) to apply and as a result of this appeal he is entitled to “a legal remedy
under Article 13”.
Submissions on behalf of the Commissioner:
[19] The Commissioner noted that the Appellant’s main ground of appeal is that the
Commissioner erred in concluding that the Appellant’s rights under Article 10 ECHR are
not infringed by the MPS’ refusal to NCND pursuant to section 23(5) FOIA.
[20] The Commissioner stated that the Tribunal should rely on the authority of Kennedy
v Charity Commission as opposed to Magyar, which, at the relevant time was subject of
an appeal to the Upper Tribunal.
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[21] The Commissioner recognised the conflicting First-tier Tribunal decisions on this
issue - Moss v Information Commissioner EA/2016/0250 and Gibbs v Information
Commissioner EA/2017/0258 & 0275 and recommended that the appeal be transferred
and determined by the Upper Tribunal pursuant to rule 19(3) of The Tribunal Procedure
(First-tier Tribunal) (General Regulatory Chamber) Rules 2009. This is an administrative
matter of process and not an issue raised before for this Tribunal.
Appellant’s Reply:
[22] The Appellant endorsed the Commissioner’s recommendation that the Upper
Tribunal determine this matter in accordance with rule 19(3) of The Tribunal Procedure
(First-tier Tribunal) (General Regulatory Chamber) Rules 2009. The Appellant
highlighted the importance of his appeal and the effect it will have on future public interest
arguments.
[23] The Appellant indicated that he currently has two other appeals to the ICO, both
cases in respect of challenging the absolute exemption issue in section 23(5) of FOIA.
The Appellant adopted the decision taken by the UK Supreme Court in Kennedy v
Charity Commission to make the argument that the decision in Magyar v Hungary [2016]
applies to the case at hand.
Case Management Directions:
[24] The Tribunal Registrar, on 27 February 2019, stayed this Appeal pending the Upper
Tribunal’s decision in Moss v Information Commissioner (an appeal against First-tier
Tribunal decision EA.2016.0250), irrespective of the Appellant’s application to reverse
this decision.
[25] The stay of this appeal was lifted on 3 September 2020 in accordance with Rule
5(2) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules
2009.
[26] A further direction was provided on 8 October 2020 that appeals EA/2019/0014,
QJ/2020/0013 and QJ/2020/0014 – Professor Tim Crook v The Information
Commissioner and Commissioner of Police for the Metropolis, be held together as there
appears to be a similar preliminary issue to be determined
.
Commissioner’s Final Submissions:
[27] The Commissioner, with reference to the decisions of Moss v Information
Commissioner & Cabinet Office [2020], Kennedy v Charity Commission [2014] and BBC
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v Sugar (No.2), stated that Article 10 rights would not necessarily need to be facilitated
via FOIA and that Parliament’s intentions were expressed in the full knowledge of a
citizen’s Convention Rights.
[28] The Commissioner noted that the Tribunal would not have the jurisdiction to issue
a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“HRA
1998”) as such a decree must be issued by a “court” as defined in s.4(5) HRA 1998
which does not include this Tribunal.
[29] The Commissioner reiterated that the Tribunal in this appeal is bound by the Upper
Tribunal decision in Moss v Information Commissioner & Cabinet Office [2020]. In
response to the Appellant’s argument that Mr Moss did not meet the criteria established
in Magyar Helsinki Bizottsag v Hungary App.188030/11, the Commissioner submitted
that the Upper Tribunal considered it necessary for Mr Moss to demonstrate that it was
open to the Upper Tribunal to apply Magyar in domestic law before considering whether
Mr Moss met the criteria set down in Magyar for Article 10(1) to be engaged. The Upper
Tribunal Judge in Moss stated that it was only if he was wrong on his conclusion that
Magyar does not apply in domestic law that it was then necessary to consider “whether
Mr Moss can show that he had a right of access to the information he had requested
which was being interfered with under Article 10(1) on the basis of the criteria laid down
in Magyar”. Therefore, the Commissioner did not accept the assertion that the Tribunal
must consider whether or not the Appellant meets the criteria set down in Magyar.
[30] The Commissioner argued that even if the Appellant in this case were to
successfully meet the criteria set out in Magyar to demonstrate that he had a qualified
Article 10 right to the information requested, the application of FOIA in this case would
not have interfered with such a right.
Response of the MPS
[31] The MPS also opposes the appeal and submits that the Information Commissioner’s
decision to uphold the MPS’s refusal to confirm or deny in relation to the information
sought pursuant to s.2(1) of the FOIA was correct. Additionally, the MPS did not depart
from their view that NCND was the appropriate approach to adopt in this case pursuant
to section 23(5), 24(2), 27(4), 30(3), 31(3) and 40(5) FOIA.
Commissioner’s Response to Appellant’s Appeal:
Ground I – Application of Article 10:
[32] The Commissioner reiterated that the Tribunal in this case is bound by the Upper
Tribunal decision in Moss v Information Commissioner & Cabinet Office [2020] and
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should accordingly not read down s.23(5) FOIA to give effect to Article 10 as argued by
the Appellant.
Ground II – Incompatibility
[33] The Commissioner stated that she relies on her submissions made on 22 October
2020, in which she argued that the Tribunal does not have jurisdiction to issue a
declaration of incompatibility under s.4 HRA 1998 as this must be issued by a “court” as
defined in s.4(5) HRA 1998 which does not include this Tribunal.
Ground III – Article 13
[34] The Commissioner repeated her view that the Appellant cannot bring a claim based
upon an infringement of Article 13 ECHR as this article has not been transposed into
domestic law.
Ground IV – Application of s.23(5)
[35] The Commissioner endorses the submissions and the approach of MPS, stating
that not using NCND would show some connection to a section 23(3) body and whilst
Special Branch are absent from the list of bodies at section 23(3), this does not mean
that section 23(5) was not applicable. The Commissioner agrees with the MPS that the
historical nature of the requested information is irrelevant to the application of an
absolute exemption.
Second Reply by the Appellant:
[36] The Appellant restated his previous submissions that Magyar can be wholly
distinguished from the case of Moss v Information Commissioner & Cabinet Office, as
Moss v Information Commissioner & Cabinet Office deals with an entirely different
section of the FOIA and Mr Moss was in a separate category to those given the qualified
right to information in Magyar. The Appellant argued that public interest is central to his
appeal and any FOIA requests should be subject to independent appeal and adjudication.
He cited Kennedy v Information Commissioner and sections 2, 3 and 6 HRA 1998 as the
legal basis of his appeal. He referred to the authorities relied upon by the Respondents,
arguing that the importance of the ability to receive and evaluate information which
requires an FOIA request cannot be undermined.
Tribunal Hearing:
[37] The parties expanded on their earlier submissions. The Appellant adopted his
argument in relation to ‘Intrinsic versus Instrumental Law’ and made additional
submissions in respect of the same, e.g. he ‘relied on the “direction of travel” in English
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law towards positive recognition rights for researchers and non-governmental
organisations.’
[38] The Appellant contended that there are three additional arguments to be made for
the purposes of undermining the application of an absolute exemption of NCND. He
submitted that as the exigencies of national security and privacy could be respected in
accordance with the law through the use of redactions, “a blanket refusal… is
unreasonable and disproportionate” in this case.
[39] The Appellant highlighted that there are several thousand historical TNA files
classed as ‘Open Documents/Descriptions’, which titles have been released into the
public domain (less than 200 of which appear to relate to Special Branch). He drew
comparisons with the eventual publication of George Orwell’s file (after a biography, on
the actual individual for whom George Orwell was a pseudonym, wishing to draw on the
file, had been published) to argue that there is a pressing social need for the personal
archive of Goldsmith College’s “leading academic” (unnamed) to no longer be withheld.
The Appellant was made aware of and presented with the Witness Statement of
Detective Chief Super Intendant Kevin Southworth dated 4 May 2021. (The Appellant
took no issue with this statement and it has been dealt with accordingly as agreed
evidence).
[40] The Appellant contended that the release of this information is of acute public
interest as it would inform and assist the Goldsmith History Project in their understanding
of the historical nature of Edwards/McLaren as he then was. (The Tribunal reminds itself
that any personal acute interest on behalf of the public must be distinguished from the
public interest to the world at large or to a section of the public).
[41] The Appellant took the view that Moss can be fundamentally and effectively
distinguished from Magyar on the grounds that representations on behalf of the
Appellants and FOI requesters central to the appeal in Magyar were not before the Judge
in Moss. The Appellant stated that his status as a FOI requester, an academic historian,
commissioned to write a history of the College for publication, should be appropriated
from Magyar. Therefore, he argued, the interference with the Appellant’s Article 10 rights
cannot be justified in a democratic society.
[42] The Appellant acknowledged the rulings of the UKSC in Kennedy and Sugar and
their impact on the applicability of Strasbourg jurisprudence to national law. Further, the
Appellant relied upon Lord Bingham’s ruling in Kay v Lambeth LBC [2006] 2 AC 465 and
R (Ullah) v Special Adjudicator [2004] UKHL 26 to present the exceptionality of his case
and the necessity of obtaining recourse under Article 10 ECHR.
16
[43] In addressing Section 23(1) of FOIA, the Appellant states that; “The present FOIA
2000 as amended fully supports my interpretation which is as clear as night follows day.
There is no ambiguity here” Further, with reference to the SSA 1989, the Appellant
argued that the determining issue is applicability, as SSA 1989 creates a statutorily
constituted Security Service, the Security Service ‘within’ the Home Office that predates
the legislation is a separate legal entity. Therefore, Section 23(3) of the FOIA, he argued,
does not apply to this case, as the scope of his request is for information prior to 1989.
[44] The Appellant provided an analysis of the Hansard Second Reading of the Security
Service Bill 1988 to submit that; the MI5 and covert operational part of the Home Office
prior to 1989 “is certainly not the government security body specified in FOIA 2000 as
the security body constituted separately from the Home Office by the Security Service
Act 1989. The Section 23 (3)(a) absolute exemption, therefore, does not apply”.
[45] The Second Respondent made four further submissions to develop the arguments
laid out in their written documents, and provided an agreed witness statement by
Detective Chief Superintendent Kevin Southworth dated 4 May 2021. In this
unchallenged evidence before us the witness stated that liaison with security bodies is
significant and ‘on a daily basis’, that it is essential for MPS to always use NCND to
prevent any mosaic effect from some FOIA releases, and that any information currently
in the public domain which purports to disclose SB activities is ‘speculative’ and not
confirmed by Counter Terrorism Command.
[46] The Second Respondent argued that the scope of the appeal for the Tribunal is
limited to whether the decision notice correctly applied the law set out in Part 1 of the
FOIA. The Second Respondent pointed out that s.78 preserves other routes of
disclosure, however, the principal route of challenge to a decision on a common law
request would be a judicial review.
[47] The Second Respondent further outlined the cost implications of this procedure.
The Second Respondent reiterated that in accordance with Section 3(5) of the Tribunal,
Courts & Enforcement Act 2007 and R (Cart) v Upper Tribunal [2009] EWHC 3052
(Admin); [2010] 2 WLR 1012, the Tribunal are bound by the decisions of the Upper
Tribunal.
[48] In congruence with the finding in Moss the Second Respondent argued that this
Tribunal is bound by the Upper Tribunal and as a result Article 10 ECHR does not affect
disclosure under FOIA. However, in the alternative, the Second Respondent contended
17
that if the Tribunal proceed on the basis that the Appellant does meet the second criterion
set out in Magyar, the other three criteria, which the Appellant cannot relate to also
cannot be met as they do not relate to the characteristics of the appellant in any given
case. The Tribunal reminds itself that all four criteria referred to in Moss must be applied
in tandem.
[49] The Second Respondent outlined reasoning for the decisions from Kennedy and
Sugar to address the issues faced by Mr Moss in Magyar. The Second Respondent does
not accept that there is any conflict in incorporating Magyar into domestic law.
[50] The Second Respondent dealt with the Appellant’s contentions relating to the
applicability of the doctrine of precedent outlined in Kay; relying upon Lord Bingham’s
summation of the doctrine to state that it is not for this Tribunal to depart from settled law.
Therefore, the Second Respondent submitted that Moss cannot be distinguished in the
way the Appellant seeks.
[51] The Second Respondent outlined the authority of Rosenbaum v Information
Commissioner [2021] UKUT 005 (AAC) – a case also regarding Special Branch and
information prior to 1989 - and the principles which form the basis of the Second
Respondent’s argument. The Second Respondent argued that the pre-1989 Security
Service was specified in s.23(3) FOIA. Therefore, pursuant to Pepper v Hart (Inspector
of Texas) [1993] AC 593, they submitted there is no ambiguity in the statutory language
that would allow the Tribunal to consider Hansard in line with the Appellant’s case.
[52] In response to the Appellant’s argument that there should be a balancing exercise
undertaken, the Second Respondent stated that the appeal concerns the application of
NCND and the absolute exemption of s.23. Therefore, this is not a case where any public
interest balancing exercise can be undertaken.
[53] The Second Respondent submitted that that the question for this Tribunal is whether
confirmation that information was or was not held would reveal that MPS had or had not
been involved with some manner of Special Branch (a body subject to s.23 (3))
investigation into the topics covered by the request.
[54] The Second Respondent submitted that the appeal be dismissed, save for the
concession made during the hearing that the Heinemann file is listed on The National
Archives website; thus, it is accepted that a NCND stance cannot be maintained in
respect of this circumstance.
18
Tribunal’s Reasons regarding s23:
[55] The Tribunal concludes that any such Special Branch activities, if they exist, would
be in the ambit of a s. 23 (3) body prior to 1989. We do not have the power to turn to
Hansard unless an ambiguity arises with the legislation, such as with a security body
listed under s.23 (3) of FOIA. The Tribunal has concluded that the phrase in SSA 1989
“…shall continue to be a Security Service” permitted no ambiguity, thus the Tribunal has
nothing further to address in respect of this limb of the Appellant’s appeal. In the
alternative, if any ambiguity arose, the reference in the Hansard extract referred to does
not encompass the nature of the Appeal before the Tribunal in any event.
[56] This Tribunal found, based on the argument presented by the Appellant on an
‘intrinsic versus the instrumental’ approach, that it is neither for the Tribunal nor the
Information Commissioner to take an unconventional course. Further, we are agreed
that Moss cannot be distinguished as requested by the Appellant. In the first instance,
the Tribunal agree we are bound by the precedent set by the Upper Tribunal and also by
the decision of the Supreme Court in Sugar as interpreted by the Court of Appeal in
Kennedy. Notwithstanding the above, the Appellant has not persuaded this Tribunal that
any element of his appeal can be distinguished. We accept and adopt the argument as
presented and set out by the Second Respondent in this respect.
[57] It follows that we find with reference to Lord Bingham’s doctrine of precedent in Kay
(decided subsequent to the case of Ullah) that, as the Tribunal are unable to depart from
a doctrine handed down by the House of Lords, it is not for the Appellant to misapply the
doctrine for the purposes of his Appeal. The Appellant’s reference to his convention
rights in this case are, in our view misconceived and misplaced and the Tribunal
unanimously do not accept any suggestion that these rights are infringed.
[58] We note the Appellant’s passion for this area and acknowledge this in the
forcefulness of his submissions. However, the exemption under s.23 (5) is, in our view
absolute nonetheless, and therefore we find NCND is the appropriate course.
[59] We have not gone on to consider whether it is possible to concede the Appellant’s
points on s.23 (3) as it is not in the Tribunal’s remit. Moreover, the potential wider effect
if the Tribunal were to depart from a settled principle should not, in our view, be
underestimated.
[60] We reference the cases; Quayum (acting on behalf of the (Camden Community Law
Centre) v Information Commissioner & Foreign and Commonwealth Office [2012] 1 Info
LR (EA/2011/0167) and R (Binyam Mohammed) v Secretary of State for Foreign Affairs
19
[2011] 8 QB 218 cited within the authority bundle, for the purposes of illustrating that
these authorities do not assist the Appellant as the Tribunal cannot go behind what the
MPS is responsible for.
[61] The evidence before the Tribunal concerning the link between Special Branch and
s.23 consisted of a witness statement from DCS Southworth (referred to above). The
Appellant accepted this evidence without challenge and the Tribunal has given the
appropriate weight to that evidence.
[62] Having considered s.23 (5) and its application to Special Branch we endorse, accept
and adopt the arguments put forward by the Second Respondent and their reliance on
the case of Rosenbaum. The relevant section (except that paragraph 12 is not applicable
in this case) is as follows:
“1. Section 23 affords the “widest protection” of any of the exemptions: Cobain
at [19(b)] and [29].
2. The purpose of section 23 is to preserve the operational secrecy necessary
for section 23(3) bodies to function: Lownie at [50].
3. It is “Parliament’s clear intention that, because of what they do, there should
be no question of using FOIA to obtain information from or about the activities
of section 23 bodies at all”. The exclusion of the section 23(3) bodies from the
scope of FOIA was shutting the front door, and section 23 was “a means of
shutting the back door to ensure that this exclusion was not circumvented”:
APPGER at [16].
4. The legislative choice of Parliament was that “the exclusionary principle
was so fundamental when considering information touching the specified bod-
ies, that even perfectly harmless disclosure would only be made on the initi-
ative or with the consent of the body concerned”: Cobain at [28]; Lownie at
[53].
5. Asking whether the information requested is anodyne or revelatory fails to
respect the difficulty of identifying what the revelatory nature of the infor-
mation might be without a detailed understanding of the security context:
Lownie at [42]; Corderoy at [59].
6. When applying the ‘relates to’ limb of sections 23(1) and (5), that language
is used in “a wide sense”: APPGER at [25]; Corderoy at [59]; Savic at [40].
7. The first port of call should always be the statutory language without any
judicial gloss: APPGER at [23]; Corderoy at [51]; Savic at [40].
20
8. With that warning in mind, in the context of ‘relates to’ in section 23, it may
sometimes be helpful to consider the synonyms of “some connection”, or “that
it touches or stands in some relation to” (APPGER at [13], [25]) or to consider
whether the request is for “information, in a record supplied to one or more of
the section 23 bodies, which was for the purpose of the discharge of their
statutory functions” (APPGER at [21], [26]; Lownie at [57]). But the ‘relates to’
limb must not be read as subject to a test of focus (APPGER at [14) or direct-
ness (Lownie at [59]-[60]).
9. The scope of the ‘relates to’ limb is not unlimited and there will come a point
when any connection between the information and the section 23(3) body is
too remote. Assessing this is a question of judgment on the evidence: Lownie
at [62].
10. The assessment of the degree of relationship may be informed by the
context of the information: Lownie at [4] and [67].
11. The scope of the section 23 exemption is not to be construed or applied
by reference to other exemptions, including section 24: APPGER at [17];
Lownie at [45] and [52].
12. In a section 23(1) case, regard should be had as to whether or not infor-
mation can be disaggregated from the exempt information so as to render it
non-exempt and still be provided in an intelligible form: Corderoy at [43].
13. Section 23(5) requires consideration of whether answering ‘yes’ or ‘no’ to
whether the information requested is held engages any of the limbs of section
23: Savic at [43], [82] and [92].
14. The purpose of section 23(5) is a protective concept, to stop inferences
being drawn on the existence or types of information and enables an equiva-
lent position to be taken on other occasions: Savic at [60].”
[63] The Upper Tribunal in Rosenbaum further held:
“44. I turn then to the FTT’s decision. It considered the case law as to the
meaning of “relates to”, identifying the width of its scope in accordance with
APPGER. It found that confirmation or denial by the MPS of whether it held
the requested information would reveal that the Security Service had or had
not been involved with some manner of Special Branch investigation into the
National Front during those specific years. This reasoning has not been chal-
lenged and I note that the FTT drew sound inferences based on the context
21
and evidence. As the information concerned the activities of the Security Ser-
vice, the FTT correctly concluded that it related to a section 23(3) body. The
FTT did not expressly address the question of remoteness, but there was no
need to do so: the information was clearly connected with the Security Ser-
vice. This was supported by the witness statement of a Detective Chief Su-
perintendent Southworth as summarised at paragraph 4 of the FTT’s reasons
which I have set out above. On that basis, the FTT should have concluded
that section 23(5) applied.
45. The FTT’s error was that it did not conclude its decision at that point but
went on to adopt the approach in Corderoy by asking whether Parliament had
intended the information to be covered by the absolute section 23 exemption
and, in that context, to ask whether it had intended to exclude all information
relating to the work of Special Branch. In the light of my analysis of the mean-
ing and application of “relates to”, that was plainly an error of law. The further
questions that the FTT asked were irrelevant.
46. The FTT then proceeded to make further errors in identifying Parliament’s
intention. First, the suggestion that Parliament would have listed Special
Branch in section 23(3) if it had intended all of its activities to be included was
misconceived. If Special Branch were listed in section 23(3), the effect would
be to expand the scope of the exemption by excluding all information related
to Special Branch itself, not just its work, and by exempting information held
by any other public authority which related to Special Branch activities. As Mr
Knight said, “Special Branch is in MI5’s orbit; if were a listed NSB [national
security body], it would have its own, much larger orbit, significantly expand-
ing the scope of the exemption”; and, I would add, expanding it beyond what
is necessary to protect information relating to security bodies.
47. Second, as the case law clearly shows, Parliament had cast the net of
section 23 widely so as to avoid the possibility of sensitive information being
improperly disclosed and to ensure that the security bodies are not inhibited
from collaborating with other bodies which are not listed in section 23(3). To
exclude from the scope of section 23 information which relates to a section
23(3) body by reason of its collaboration with a non-section 23(3) body would
undermine the purpose and effect of the provision.”
[64] FOIA was implemented after the Human Rights Act, when signed into law the
draftsmen would have been aware of the existence of the Human Rights Act. The
22
existence of s.23 is not a breach of the Appellant’s Article 10 rights. We do not have the
power nor the jurisdiction to provide for the declaration of incompatibility, as is sought by
the Appellant. Further, an effective remedy would only be available to the Appellant if the
Tribunal were to rely on the case of Kennedy, which we do not as there is no domestic
law right to an effective remedy under the European Convention of Human Rights. We
also raised the inapplicability of Article 13 with the Appellant. That being said, we
acknowledge the Appellant’s frustration in regards to the previous releasing of files by
the MPS, however, each case turns on its own merits and if an absolute exemption
applies, which we find it does in this case, the previous releases are irrelevant.
Notwithstanding this, the Tribunal and the Upper Tribunal are not bound by the previous
decisions of the MPS to release such information as they see fit.
[65] It follows that we accept, endorse and repeat herein the submission presented by
the Second Respondent at paragraph 40 – 46 of their closing submissions as follows:
“40. The Appellant also argues that there should be a balancing exercise undertaken. In
particular, he argues that historic documents of high public interest ought to be disclosed.
He has made a number of points in relation to the substantial public interest he says
would favour disclosure of any Special Branch files that fall within his request. The
Second Respondent does not engage with those in detail, but submits that (1) this
appeal is concerned with the duty to confirm or deny, not the duty to provide information;
and (2) that in relation to s.23, an absolute exemption, those arguments simply do not
arise.
41. That position is consistent with the third, fourth and fifth Rosenbaum principles.
42. With one exception, the fact that some Special Branch files have been provided to
the Public Records Office (i.e. The National Archives) does not alter this position. That
is not disclosure under FOIA to the world at large, and the Appellant’s own analysis
shows how disclosure under the Public Records Acts is somewhat more nuanced and
careful than FOIA would permit. The same applies to disclosure via the Undercover
Policing Inquiry.
43. The one exception is the file relating to Margot Heineman. Parts of this file have been
disclosed in the past under FOIA: the Second Respondent acknowledges that it cannot
maintain an NCND stance in the circumstances, and will provide the Appellant with a
copy of the material previously disclosed.
23
44. In respect of the remainder of the Heineman file, the Second Respondent relies on
s.23(1), s.24(1) (not in the alternative) and s.31 as justifying exemptions from the duty
to provide information, for the same reasons as set out in DCS Southworth’s statement.
45. As regards any other material that may be held in respect of the Appellant’s request,
the Second Respondent submits that the approach to be applied was set out in §44 of
Rosenbaum, set out above. The question is whether confirmation that information was
or was not held would reveal that a s.23(3) body had or had not been involved with some
manner of Special Branch investigation into the topics covered by the request.
46. How to answer that question is set out at §34 of the Second Respondent’s Response
[A63]:
a. What activity of Special Branch does the nature of the information sought go to?
b. Does that activity habitually concern a close relationship between Special Branch and
the s.23 bodies?
c. On the balance of probabilities, would confirming or denying possession of information
revealing the involvement or non-involvement of Special Branch in this matter reveal
information that, by fact or inference, relates to a s.23 body?
Other exemptions :
[66] For the sake of completeness, we go on to consider the additional exemptions
arising under FOIA raised by MPS.
[67] Section 27 of FOIA sets out that information is exempt from disclosure if it would
prejudice or would be likely to prejudice relations between the United Kingdom and
another State. This exemption, if applicable, is a qualified exemption and depends on
whether the public interest in maintaining the exemption outweighs the public interest in
the disclosure of the material. In the instant matter, we find that such a prejudice would
exist in the circumstances that currently arise, namely that "there is an inherent
disservice to the public interest in flouting international confidence" (as per the decision
in the Campaign against the Arms Trade -v- Information Commissioner and MoJ, IT, 26
August 2008).
[68] Sections 30 and 31 of FOIA are linked exemptions:
1. Section 30 of FOIA sets out an exemption for information held by a public
authority if it has been held by it, at any time, for the purposes of an
24
investigation with a view to it being ascertained whether to charge some-
one with an offence or which may lead to criminal proceedings. If this ex-
emption could have been said to have applied to any material held, it con-
tinues to apply irrespective of whether the decision to prosecute has been
made or even if it has been completed (and that was an issue considered
in the case of Prince -v- Information Commissioner and Devon County
Council, FTT, 14 November 2007); and,
2. in the circumstance that information is not exempt under section 30 but its
disclosure under FOIA would, or would be likely to, prejudice the preven-
tion or detection of crime or the apprehension or prosecution of offenders,
then the exemption under section 31 would apply.
[69] While we did not hear extensive submissions on the application of the exemptions
under section 30 and 31, it does appear that the disclosure of this material under FOIA,
if held, would disclose methodology with adverse consequences that would cause the
section 31 exemption to be engaged, if not the section 30 exemption itself. As s.30 and
31 are qualified exemptions, the public interest test may need to be considered. The
release of the requested information could be misleading, and could compromise the
MPS’ relationship with international relations. Further, we find such information could be
manipulated with malevolent intent.
[70] There is an exemption under section 40 of FOIA in relation to the provision of per-
sonal data.
We did not hear detailed submissions on the correct data protection regime applicable
to the material subject to this application and, in fact, it is not necessary given that the
definition of personal data has not materially changed:
1. Section 1(1) of the Data Protection Act 1998 defines the term "personal
data" as being: "data which relate to a living individual who can be identi-
fied (a) from those data, or (b) from those data and other information, which
is in the possession of, or is likely to come into the possession of, the data
controller, and includes any expression of opinion about the individual and
any indication of the intentions of the data controller or any other person in
respect of the individual".
25
2. Section 3(2) of the Data Protection Act 2018 defines the term as meaning
"any information relating to an identified or identifiable living individual".
[71] The material, if held, that would form of the subject matter of this appeal - namely
all information and files held by (what was then) Special Branch relating to the activities
of staff and students at Goldsmiths' College - was personal data at the point of its cre-
ation. In that sense the Second Respondent, that is to say, the MPS, is the data con-
troller of that personal data and must comply with the data protection legislation with
respect to its processing (including its potential publication under FOIA).
[72] Section 40 of FOIA sets out exemptions with respect to the provision of material
constituting personal data. Of particular relevance, section 40(2) and (3) of FOIA pro-
vides for an exemption in which the provision of the information would contravene any
of the data protection principles. Article 5(1) of the UK GDPR sets out the data protection
principles, of which the first data protection principle (set out under Article 5(1(a))) is the
most significant: personal data shall be "processed lawfully, fairly and in a transparent
matter in relation to the data subject". The publication of the information sought, in the
context of any Special Branch investigations into the activities of individuals -
irrespective of how well founded or misplaced those investigations were - would not be
in the interest of those individuals. It is clear that the potential for distress to those indi-
viduals is high and the impact on the privacy of those individuals is a factor that must
tend against publication. Of course, this point must be considered in the context of the
affected individuals being potentially unaware of the fact of the Appellant's attempts
to seek publication of the material to the world at large, and also a lack of the individuals'
awareness of the existence of the investigations at all.
In those circumstances we find, not only can it be stated that it would not be fair or lawful
for the Second Respondent to publish this material but, in fact, the publication of the
material has the potential to constitute a breach of the General Data Protection Regula-
tion 2016/679 as retained in domestic law (“UK GDPR”) by the Second Respondent,
which would carry the real risk of a claim for compensation through damages and
regulatory investigation as a consequence.
[73] Indeed, Article 10 of the UK GDPR sets out additional provisions relating to "criminal
convictions and offences or related security measures" which are then achieved through
section 10 of the Data Protection Act 2018 (which is the UK implementation of the GDPR
and aligns with and build on the UK GDPR). Personal data of this nature is afforded
26
additional protections under the data protection legislation, as a result of the heightened
risk to the rights and freedoms of the affected individuals through its misuse. It is difficult
to foresee how the publication of personal data falling into this category could ever
be fair or lawful in this scenario. We therefore conclude that section 40 of FOIA applies
and exempts the material held from publication insofar as it represents personal data.
[74] The only aspect of the nature of the information that might change that position is
where the individual to whom it relates has now died: the definition of personal data
under the data protection legislation relates only to information relating to a living indi-
vidual. This was a point raised during the hearing by the Appellant. We agree with the
Second Respondent's submission in response that the time spent in checking this issue
with respect to each individual - being not only to check whether they were still alive, but
also to ask and consider their views on publication - would take sufficient time that the
exercise would most probably quickly meet the exemption represented by section 12 of
FOIA, namely that the cost of compliance would meet and exceed the appropriate limit.
In his submissions, both in writing and orally, the Appellant made reference to material
that had been published by way of the website of the National Archives (TNA) and which
would or could or may have otherwise been exempt from disclosure under FOIA for the
same reasons as are rehearsed in this decision. For the sake of completeness, we con-
clude that material falling into this bracket is also itself exempt from disclosure under
FOIA as a result of the exemption set out under section 21, namely that it is information
that is already reasonably accessible to the Applicant otherwise than under FOIA. In-
deed, the extent of the references to that material in his submissions demonstrated that
the Appellant was aware of the TNA material.
[75] Lastly then, in relation to the additional exemptions set out above, we say they are
not only exempt to the requirements on the Second Respondent to provide the in-
formation itself, but, in respect of the exemptions under section 27, 30, and 40, there is
no obligation on the Second Respondent to confirm nor deny the existence of the infor-
mation.
Conclusion:
[76] For the reasons given above we find that the appeal must fail in its entirety.
Brian Kennedy QC. 23 July 2021.
27