Lownie v FCDO

Reference: [2023] UKFTT 00397 (GRC)

Court: First Tier Tribunal

Judge: Judge Neville, sitting with Tribunal Members Cosgrove & Chafer

Date of judgment: 28 Apr 2023

Summary: Freedom of Information - FOIA - National Security - Public Records - National Archives - transferred public record - historical documents

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Instructing Solicitors: Appellant in person, ICO, GLD for the FCDO


The Appellant sought historic information from the FCDO about Guy Burgess and the Cambridge Spy Ring. FCDO applied the mutually exclusive exemptions ss.23 and 24 ‘in the alternative’ to mask which really applied. The FTT initially rejected this approach, but the UT allowed an appeal against that decision.

This was the substantive appeal from the ICO Decision Notice permitting the application of ss.23 and/or 24 FOIA to the information requested. One of the files requested, FCO 158/15, was accepted by all parties to be an ‘historical record’.


(1) Was FCO 158/15 an ‘historical record in the Public Records Office’, given that it had been sent by the FCDO to the National Archives, but then transferred back to the FCDO archives? If it was, then if s.23 FOIA (which is usually an absolute exemption) would be qualified by a Public Interest Balancing Test (“PIBT”).

(2) Did either of the exemptions under ss.23 or 24 FOIA apply to the information?


(1) No – the Appellant was correct that one an historical document was sent to a Public Records Office, that status under s.64 FOIA (and the qualifying of the s.23 FOIA exemption by a PIBT) could not be reversed by a unilateral act of the public authority. However, an historical document only qualified as being “in” a Public Records Office once the first part of the process of “accessioning” (a term which connotes a file is (1) accepted by National Archives, (2) entered into the catalogue, and (3) made available for the public to access) occurred. This file was sent in August 2015, but returned no later than October 2015, and never “accessioned”.

(2) Yes – the files were exempt on the basis of either ss.23 or 24, but the FTT could not say in Open Judgment which applied or why.


A rare case on s.64 FOIA and the different approach to absolute exemptions where files have been transferred to Public Records Offices.