Lownie v (1) The Information Commissioner (2) National Archives (3) FCO

A requested from R2 a number of closed Foreign and Commonwealth Office files. These included files relating to Guy Burgess and Donald Maclean (known KGB spies), and subsequent investigations and security arrangements. In particular, A requested a file concerning the security vetting of a person who was a member of R3 (“the File”).

The file is being held by R2 as a transferred public record for the purposes of Part VI of the Freedom of Information Act (“FOIA”). R3 is the responsible authority for the purposes of s.66 FOIA. The file was transferred in 2015 with agreement for closure for 92 years.

R2 refused to provide the File on the basis of the exemption in s.38(1) (health and safety). This was confirmed on internal review, relying additionally on s.24(1) (national security). A complained to R1 and R1 upheld the refusal on the basis that s.38(1) was engaged and that the balance of public interest favoured maintaining the exemption. R1 made no finding as to the application of s.24(1).

A appealed to the Tribunal, contending R1’s decision is wrong in fact and law and that in the circumstances the minimum requirement to satisfy s.38(1) is a proven probability of psychiatric injury. R1 maintains its position on s.38(1). R2 and R3 also resist the appeal relying on s.38(1), s.24(1) and additionally s.23(1) (information supplied by or relating to bodies dealing with security matters).

1.  What is the meaning of “would, or would be likely to” in s.38(1)?

2.  Is s.38(1) engaged?

3.  Is s.23(1) engaged?

4.  If either section is engaged is it in the public interest to maintain the exemption?

1.  “Would, or would be likely to” means “a very significant and weighty chance” and “may very well”.

This approach is derived from the discussion of Munby J in R (Lord) v Home Secretary [2003] EWHC 2073 (Admin) at [96] – [100]. This provides the appropriate explanation of the degree of likelihood. A ‘real risk’ is not enough. Similarly, the meaning of “endanger” is explained by the Tribunal in BUAV v IC and Newcastle University EA/2010/0064, [2012] 1 Info LR 52 at [18] – [19].

2.  38(1) is not engaged.

On the evidence the revelation to the family of a deceased civil servant that some decades ago their relative was investigated in relation to espionage, and that the investigation concluded that there was no such involvement would not be likely to (following the statutory meaning above) to have an adverse effect on anyone’s mental health. The reasoning on the sexuality issue is similar.

3.  23(1) is engaged.

FOIA is not to be used in a way that reveals activities of section 23 bodies. The question whether information was supplied by or relates to a security body is a question of objective fact. Disclosure of the File would disclose specific information about the actual activities of a security body in relation to a particular person. In the circumstances, such disclosure could not practicably be prevented by selective redactions.

4.  The exemption should be maintained under s.23(1).

There is a clear public interest in the disclosure of information concerning how government is conducted or has been in the past. On the other side of the balance there is a strong public interest in preserving the secrecy of operation of security bodies which is reflected in the features that the security bodies are not subject to FOIA and that s.23 is normally an absolute exemption. At some point the passage of time will so dilute the importance of s.23 that the ordinary public interests in disclosure of governmental information will outweigh it. In the instant case the reasons for disclosure are not particularly strong and the public interest in maintaining the exemption outweighs it.

The First Tier Tribunal examines the meaning and application of several exemptions under the FOIA regime in relation to information relating to the Cambridge Spy Ring.