(1) Williams (2) Wickham-Jones (3) Lownie v (1) IC (2) FCDO
Reference:  UKFTT 2019_212 (GRC)
Court: First Tier Tribunal (General Regulatory Chamber - Information Rights)
Judge: Judge Anthony Snelson & Judge Moira Macmillan
Date of judgment: 20 Jan 2021
Summary: FOIA - exemptions - national security - Information Commissioner's Guidance - "in the alternative" - public law
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Greg Callus (Appellant)
Three appellants made Freedom of Information Act (“FOIA”) requests of the Foreign, Commonwealth & Development Office (“FCDO”). In each case the FCDO said it held the information, but that it was exempt from release under s.23(1) or s.24(1) FOIA “in the alternative”. These exemptions are mutually-exclusive as a matter of law, but the FCDO said it was entitled to express its refusal in this way to ‘mask’ whether or not a s.23(3) body was related to the information. In doing so, they relied on the long-standing Guidance published by the Information Commissioner’s Office permitting this approach to relying on national security exemptions “in the alternative”.
On appeals under s.50 FOIA, the Information Commissioner (“IC”) delivered Decision Notices. She did not inquire into, much less determine, which exemption actually applied. She too relied on the Guidance that the IC “will accept” refusal notices citing both national security exemptions “in the alternative”.
The appellants each appealed to the First Tier Tribunal (“FTT”) under s.57 FOIA. The common issue to each of the appeals led to a Preliminary Issue hearing being ordered. Given the importance of the issue, a two-judge constitution of the FTT was empanelled by acting Chamber Presidence, Upper Tribunal Judge O’Connor.
The Preliminary Issue was heard remotely on 13 November 2020.
Was a public authority entitled to rely on mutually-exclusive national security exemptions “in the alternative”?
In section 17(1)(b) FOIA, Parliament had required a public authority which had confirmed it held information but was refusing to supply it to “specify” which exemptions upon which it actually relied. It was not entitled to mention “in the alternative” exemptions that did not apply so as to mask which exemptions upon which it really was relying.
A noteworthy FTT decision on a straightforward point of construction, but potentially with significant implications for the pleading of national security exemptions in FOIA. The ICO Guidance on this point was held to be irreconcileable with the wording of the statute.