First-tier Tribunal (General Regulatory Chamber)

Neutral Citation Number: [2023] UKFTT 886 (GRC)

IN THE FIRST-TIER TRIBUNAL

DECISION

(1) The Tribunal received in the course of the hearing, two further closed documents relating to the disputed information. Pursuant to the application of the Foreign and Commonwealth Development Office, these documents will be held pursuant to Rule 14(6) of the FTT Rules and Procedures on the basis that they will not be disclosed to anyone except the Information Commissioner and the Foreign and Commonwealth Development Office.

(2) The Second Respondent (FCDO) was entitled to withhold the information requested by the Appellant on the basis of the exemptions under the Freedom of Information Act 2000 (FOIA), sections 23(1), alternatively 24(1).

OPEN REASONS

1. On the 10 May 2018 the Appellant made a FOIA request,to FCDO in the following terms:

"I would like a list of all records held by the FCDO relating to Mr Belhaj and Ms Boudchar, Where possible, the list should contain:

(a) the date of the record

(b) the type of the record - i.e. letter, email, phone record, image (c) a summary/gist of what the record is.

If the request exceeds costs threshold, please restrict request to year 2004"

2. The FCDO replied that the information requested was held but that it would not be disclosed as it was exempt under FOIA, s23(1) (security bodies) or s24(1) (national security); section 40(2) personal data); and section 42(1) (legal professional privilege). The exemptions under s23(1) and 24 (1) are mutually exclusive.
3. The Appellant challenged that response but following a review the FCDO on 3 August 2018 maintained its position.
4. The Appellant complained to the First Respondent ("The Commissioner"). By a decision notice dated 21 June 2019 the Commissioner determined that the requested information was exempt under FOIA s23(1) or s24(1).
5. A hearing was held before the First-Tier Tribunal on 13 November 2020 in the conjoined appeals of Mr Williams, Dr Wickham-Jones and Mr Lownie to determine whether, as a matter of law, it was open to the FCDO to rely on s23(1) or s24(1) in the alternative. It decided on 29 December 2020 that it was not but, by a decision of 1 October 2021 the Upper Tribunal ("UT") overturned it [20211UKUT 248 (AAC). At para 58, the UT stated:

"The FCDO was entitled to rely upon sections 23(1) and 24(1) in the alternative so as to protect the interests of national security by masking whether or not the information relates to one of the security bodies listed in section 23(3)."

6. The appeal came before us for final hearing on 31 May 2023. The Appellant attended the open parts of the hearing in person by telephone, Ms Jennifer Thelen, Counsel, appeared for the FCDO. The Commissioner did not attend, relying on written representations.
7. We began with brief opening arguments from both sides. We then moved into a closed session, during which we heard from Mr Angus McKee, the Head of FCDO'S Intelligence Policy Department, and he took us in detail through the disputed material. Ms Thelen then delivered further argument based on that evidence. Returning to open proceedings, Ms Thelen read an agreed gist of the closed session and concluding observations, were delivered from both sides. We then reserved our decision.
8. FOIA s23(1) states:

"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 subsection (3)."

Subsection (3) contains a long list of security bodies. The exemption under s23(1) is absolute.

9. FOIA s24(1) states:

"information which does not fall within s23(1) is exempt information if exemption from sl(l)(b) is required for the purposes of safeguarding nation security."

The exemption under s24(1) is a qualified exemption, to which the public interest balance test under s2(2)(b) applies.

10. In her decision notice the Commissioner stated (para 22):

"The Commissioner cannot elaborate on her rationale behind [the finding that s23(1) or s24(1) applies] without compromising the content of the withheld information itself or revealing which of these two exemptions is actually engaged."

11. By s57(1) the Tribunal has jurisdiction to consider appeals against decision notices issued by the Commissioner. S58(1) provides that if, on an appeal under s57, the Tribunal considers that the notice against which the appeal is brought or, to the extent that the notice involves an exercise of discretion by the Commissioner, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.
12. The three cases conjoined for the purposes of the preliminary issue referred to above have since been separated. Those of Prof Wickham-Jones and Mr Lownie have come before different constitutions of the Tribunal, in each case including the non-legal members sitting on this appeal. In the appeal of Prof Wickham-Jones the Tribunal noted the following at para 12 of its open reasons:

"The shared view of counsel was that, in explaining its decision-making, the Tribunal had no more room for manoeuvre than the Commissioner. That said, [Counsel for the Appellant] reminded us that, given the necessary resort to closed proceedings, we were the Appellant's "eyes and ears" and must examine the closed material with great care to test whether a tenable ground for withholding the information was shown....

13. Ms Thelen submitted that the "shared view on counsel" just referred to correctly summarised the proper approach.
14. Mr Williams strongly challenged that view. He submitted (without intending any disrespect) that the UT decision was simply wrong and should not be followed. He contended that it was incompatible with House of Lords authority (South Bucks District Council v Porter [2004] UKHL 43 and possibly also Dover District Council v CPRE Kent [2017] UKSC 79, two planning appeals principally concerned with adequacy of reasons. Further he submitted that the UT made it impossible for his appeal to prevail. In addition, it produced the absurdity of appearing to legitimise reliance on a "hypothetical" public interest balance test.
15. With respect to Mr Williams, we cannot accept his arguments. We are bound by the UT decision and we unhesitatingly follow it. We do not accept that the logic of the UT decision is that appeals of the sort pursued here are inevitably doomed. We are mindful of our responsibilities to test the Respondent's cases diligently through the closed proceedings. The outcome is not a foregone conclusion, it depends what we make of the evidence.
16. We have had careful regard to the language of the exemptions relied upon. In relation to s23(1) we remind ourselves of three particular points. First, the Tribunal must be satisfied that the information relates to a security body within s23(3) which was in existence at the time of the request. Second, although the 'relates to' wording is wide its scope is not unlimited and there will come a point where any connection between the information and the relevant body is too remote (see Commissioner of Police of the Metropolis and the ICO v Rosenbaum [2021] UKUT 5 (AAC). Third, a 'blanket approach' to s23(1) is to be avoided: "Regard should be had to whether or not information can be disaggregated from the exempt information so as to render it non-exempt and still be in an intelligible form (Rosenbaum, para 35).
17. In relation to s24(1) we are mindful of the familiar authority of Home Department v Rehman [2001] UKHL 47 especially at para 14.
18. Directing ourselves in accordance with the applicable legal principles and having regard to the closed material which we have considered with care, we have reached the clear conclusion that the alternative exemptions relied on by FCDO were validly cited and that the Commissioner's decision entailed no error of law or inappropriate exercise of discretion. For the same reasons as were given by the Commissioner we are not in a position to elaborate in open reasons upon our grounds for this conclusion.
19. Accordingly the appeal must be dismissed.

Anthony
Snelson Judge of the
First Tier Tribunal Dated 29^th August 2023