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Hendersons - Barristers' Chambers
News Local Government & Public Law 11th Mar 2020

Adam Heppinstall represented The National Archives and the FCO in an important Upper Tribunal FOIA decision

Adam Heppinstall represented The National Archives and the FCO in an important Upper Tribunal FOIA decision.

In Lownie v ICO, TNA and FCO [2020] UKUT 32 (AAC) Judge Markus QC held that a public authority is entitled to change its position with regard to which parts of the disputed information are covered by an exemption, during a hearing, without having to satisfy the sort of test which applies in civil courts on a relief from sanctions application:
“the FTT stands in the shoes of the Information Commissioner and its proceedings are inquisitorial. The FTT’s task is to determine whether a public authority has complied with its obligations under FOIA. In some cases the outcome will affect not only the immediate parties to the appeal. It is both a normal and desirable feature of such proceedings that a party is able to amend its position where that assists the FTT to reach the correct conclusion. A good example of this is found in what happened in the present case at the end of the hearing, when the Respondents were instructed to consider the disputed file page by page in order to identify whether any of it could be disclosed. The result of that exercise was that TNA/FCO decided that some pages were not exempt. To limit the procedural flexibility of the FTT in information rights cases would hinder the tribunal in discharging its function.”

The case concerned a closed FCO file relating to Guy Burgess and Donald Maclean (known KGB spies) held by the TNA but closed for a period of 92 years from 2015.  Disclosure was opposed on the basis of the section 23 exemption (that the file “related to” a section 23 body. ) The Upper Tribunal reviewed the authorities and concluded that “relates to” should be given a wide meaning without judicial gloss.  The Judge accepted that there comes a point when any connection between the material and the section 23 body is “so remote as to mean that the material does not relate to that body.  But that is a value judgment to be made on the evidence”.

Furthermore, this is a very rare case, perhaps the first, where section 23 applies as a qualified exemption because the records are historic (it is usually an absolute exemption).  The Upper Tribunal confirmed that it is perfectly legitimate in those circumstances for the inherent weight to be attached to the interest in keeping information relating to the section 23 bodies secret, to be placed in the balance when applying the Public Interest Test: “There is a strong public interest in preserving the secrecy of operation of security bodies. The fact that the exemption was normally absolute reflected this strong public interest. The fact that the exemption was qualified did not detract from the value to be ascribed to the importance of secrecy, but meant that that interest was to be balanced against the public interest in disclosure”.

The Upper Tribunal upheld the FTT’s decision not to direct disclosure of the closed file.  Permission to appeal to the Court of Appeal has been sought by the Appellant.

A copy of the decision can be found here.

Adam Heppinstall is available to advise on and appear in all information rights cases, including GDPR and FOIA.

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