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United Kingdom Information Tribunal including the National Security Appeals Panel

You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Foreign and Commonwealth Office v Information Commissioner and Friends of the Earth [2007] UKIT EA_2006_0065 (29 June 2007)
URL: http://www.bailii.org/uk/cases/UKIT/2007/EA_2006_0065.html
Cite as: [2007] UKIT EA_2006_65, [2007] UKIT EA_2006_0065
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Appeal Number: EA/2006/0065
Appeal Number: EA/2006/0065
Freedom of Information Act 2000 (FOIA)
Heard at Harp House, Farringdon Road, London, EC4
Decision Promulgated: 29 June 2007
BEFORE
INFORMATION TRIBUNAL DEPUTY CHAIRMAN
Mr David Marks
and
LAY MEMBERS
Paul Taylor
Roger Creedon
Between
Foreign and Commonwealth Office
Appellant
and
INFORMATION COMMISSIONER
Respondent
and
Friends of the Earth
Additional Party
Representation:
For the Appellant:            Jonathan Swift of Counsel
For the Commissioner: Timothy Pitt-Payne of Counsel
For the Additional Party: Mr Philip Michaels, Solicitor
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Appeal Number: EA/2006/0065
The Tribunal allows the appeal of the Appellant and directs that the disputed
information consisting of the following details with relation to discussions and
correspondence between the Appellant and the US State Department
between September and December 2003 inclusive at the levels of Secretary
of State, Minister or Senior Civil Servants be not disclosed, namely the
personnel involved on each side and the substance of such communication or
communications.
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Reasons for Decision
Introduction
1. This Appeal concerns the terms and operation of section 27 of the
Freedom of Information Act 2000 (FOIA). That section deals with the
exemption under FOIA which addresses international relations and
provides in relevant part as follows, namely:
“(1) Information is exempt information if its disclosure under this Act
would, or would be likely to, prejudice –
(a) relations between the United Kingdom and any other
State,
(b)      relations between the United Kingdom and any
international organisation or international court,
(c)      the interests of the United Kingdom abroad, or
(d)      the promotion or protection by the United Kingdom of its
interest abroad.
(2)      Information is also exempt information if it is confidential
information obtained from a State other than the United
Kingdom or from an international organisation or international
court.
(3)      For the purposes of this section, any information obtained from a
State, organisation or court is confidential at any time while the
terms on which it was obtained require it to be held in
confidence or while the circumstances in which it was obtained
make it reasonable for the State, organisation or court to expect
that it will be so held.
(4) The duty to confirm or deny does not arise if, or to the extent
that, compliance with section 1(1)(a) –
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(a)      would, or would be likely to prejudice, any of the matters
mentioned in sub section (1), or
(b)      would involve the disclosure of any information, whether
or not already recorded, which is confidential information
obtained from the State other than the United Kingdom or
from an international organisation or international court.
2.        This Appeal concerns primarily the provisions of section 27(1).
Although some arguments were raised and observations were made
about section 27(2) it is fair to say that the case has been argued for all
intents and purposes with regard to the former section alone.
3.        By way of preliminary comment, there has in this appeal been no
reliance in the arguments regarding section 27(4) of FOIA: the
principal issue between the parties given the prejudice-based test
expressed in section 27(1) concerns whether or not the public interest
in maintaining the exemption outweighs the public interest in
disclosure.
4.        During the appeal the Additional Party, namely Friends of the Earth
(FOE), noted that it had not seen the information requested and set out
a number of reasons why there was a real prospect that it could be
environmental information which fell outside FOIA and fell within the
Environmental Information Regulations 2004 (SI 2004 No. 3391)
(“EIR”). FOE invited the Tribunal to rule on the issue. The Tribunal’s
decision on this issue will be dealt with below at paragraph 26 and
following.
The request and its background
5.        The appeal concerns events which occurred in late 2003 and the
transportation to this country of what came to be called the “Ghost
Ships”, being various surplus US naval vessels, for the purposes of
dismantling in this country. At that time and indeed since, public
concern was expressed about not only the overall condition of the
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vessels but also, and in particular, about the pollution and
environmental risks which arose were the dismantling operations to be
carried out. As matters stand, namely as at the date of the hearing of
this Appeal, the vessels in question, being four in number, remain
located in a port in the United Kingdom and have not yet been the
subject of any dismantling operations.
6.        A request was made by email dated 6 January 2005 by FOE to the
FCO in the following terms, namely
“Please would you let us know whether the issue of the importation of
the US Naval Vessels (Ghost Ships) was referred to in any discussions
or correspondence between the FCO and the US State Department
between September and December 2003 (inclusive) at the levels of
Secretary of State, Minister or Senior Civil Servants and provide details
of any such discussions or correspondence including:
-          Date of such communication.
-          Form of communication.
-          Personnel involved on each side.
-          Substance of communication”.
7.        Initially this request was treated as a combined FOIA/EIR request:
indeed FOE itself in due course claimed that the information it was
seeking constituted “environmental information” as that term is defined
within the EIR as constituting “information on measures … such as
policies, legislation, plans, programmes, environmental agreements …”
and initially the Appellant, namely the Foreign and Commonwealth
Office (“FCO”) relied on the applicable exception in the EIR as set out
in paragraph 12(5)(a) of the EIR as well as section 39 of FOIA both of
which provisions deal with environmental information.
8.        In initially rejecting the request outright and despite reliance on those
provisions, the FCO briefly characterised its contentions in favour of
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withholding the information as also constituting “prejudice to the
effective conduct of international relations” and the fact that the free
and frank exchange of information in the context of such relations
depended on the maintenance of trust and confidence between States.
As will be seen, these considerations lie at the heart of the FCO’s case.
9.        FOE sought a review of the FCO’s decision on 15 February 2005. By a
letter dated 14 March 2005 and following an internal review conducted
by the FCO, the FCO subsequently accepted that the information
regarding the date and form of the communication or communications
sought would be provided. The FCO confirmed in answer to the first
two questions set out in paragraph 6 above, that the subject matter
came up during a meeting on 13 November and during subsequent
telephone calls on 14 and 15 November 2003. On 23 March 2005
FOE wrote to the Information Commissioner (“the Commissioner”)
seeking release of the information not disclosed by the FCO.
Events leading up to Decision Notice
10.      In mid-January 2006, FOE contacted the office of the Commissioner.
FOE informed the Commissioner that it had also made a request via a
related organisation under the United States Freedom of Information
Act to the US Secretary of State which had resulted in the provision of
what were called briefings, being in fact exchanges between the United
States’ Embassy in London and the US Secretary of State. Those
briefings reflected in turn communications provided to the Embassy
from the British Government, in particular from officials from the
Department of the Environment and Rural Affairs (DEFRA) relating to
the vessels. It is enough at this stage to say that these briefings
related to the fact that the first two vessels which were the subject of
importation were in all probability not subject to proper official
authorisation or licences in respect of the proposed dismantling in this
country. The briefings also reflected the growing concern felt in late
2003, particularly in late October and early November as to whether
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the United Kingdom had properly complied with all appropriate
international agreements and regulations.
11.      The Commissioner issued a Decision Notice dated 26 July 2006. In it
he noted that following upon the FCO’s internal review the FCO
obtained a statement from the US State Department “that it would
prefer the information to be withheld on the grounds of its sensitivity”
which prompted the FCO to offer its “opinion that access to the
information would be refused under the US Freedom of Information
Act”. The Commissioner added that he had taken “seriously the
expertise of the FCO in judging when prejudice is likely to occur” as
well as taking into account the views of the FCO and the US Secretary
of State. On balance he regarded the section 27 exemption as being
engaged. He also found that the information requested did not
constitute “environmental information” under the EIR.
12.      In his Decision Notice, the Commissioner stated that he did not
consider that the relationship between the UK Government and other
States gave rise to any general obligation of confidence similar to that
which existed between a doctor and his patient. At paragraph 5.14 and
following the Commissioner added:
“It may be that particular sensitivities arise in relation to the personnel
involved in discussions between the UK and US Governments. For
instance it may be felt that information as to the seniority of the
participants in the discussion may reveal information about the
importance attached to the issue under discussion. In this particular
instance, however, it is clear that the issue of the import of the
redundant ships to the UK already enjoyed a high profile and it is
difficult to see how information as to the seniority of the participants
could give rise to any particular prejudice. Indeed, if decisions as to
disclosure were routinely to become focused upon the seniority of
individuals involved in discussions and decision making, there is a
considerable risk that the public authorities would choose never to
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disclose such information because of the inferences that could be
drawn from disclosure in one case and refusal in another.
5.15    In the Commissioner’s view, just as the FCO has failed to
provide any specific public interest arguments in favour of support of
the maintenance of the exemption, it has failed to properly consider
any specific public interest favouring disclosure over and above a
general acknowledgment of the value of the transparency and the fact
that the issue giving rise to the request was relatively high profile.
5.16    The background to the request has been described briefly
above. As indicated, as a result of the controversy around the import
of the ships, two enquiries were carried out by Defra and the
Environment Agency and reports issued setting out the chronology of
events and analysis of how particular decisions came to be taken and
an account of the relevant regulatory framework including the various
international instruments dealing with environmental protection. In the
Commissioner’s view, the FCO assessment of the public interest in this
case should have taken into account not only the general public debate
but also the importance of the issue recognised by the lead players. In
particular it should have considered the extent to which the information
which it holds would have borne out the conclusions of these reports
and, conversely, the extent to which the information which it holds may
suggest that the enquiries leading to the reports were defective. He
should also consider the extent to which the refusal of the request may
give the impression that the account provided by Defra and the
Environment Agency tells any part of the story.
5.17    Having reviewed these matters, the Commissioner is satisfied
that there is a substantial public interest in the release of the requested
information. While accepting the FCO view that there is likely to be
some prejudice to relations with the US, the Commissioner, considers
that such prejudice would be slight and that there is a much stronger
public interest in forming a wider public debate about this issue”.
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The Commissioner duly directed that the FCO communicate to FOE
the remainder of the information requested.
The relevant chronology
13.      By early 2000 the US Maritime Administration (MARAD) had embarked
upon a programme to dispose of obsolete vessels in the national
defence reserve fleet. A report in March of that year stated that 110
vessels had been designated for disposal and that the vessels were
“literally rotting and disintegrating as they await disposal”. It was also
noted that the vessels’ structures contained hazardous substances
such as asbestos and solid and liquid polychlorinated biphenyls
(PCBs). By May 2003 MARAD sought to export 13 vessels to a facility
on Teesside in England held and operated by a company known as
AbleUK for dismantling and recycling. The dismantling unit was known
by the acronym TERRC. This appeal concerns the first four vessels
out of the original group of 13. The first two ships left for the United
Kingdom on 6 October 2003 and the remaining two on 17 October
2003.
14.      In order to operate a dismantling operation AbleUK obtained a waste
management licence which was issued by the UK Environment
Agency. That Agency originally issued such a licence on 31 October
1997. That licence was modified on 30 September 2003 principally in
order to allow ships and vessels to be scrapped at the site: in addition
the volume of waste which was to be processed annually was
substantially increased. The Environment Agency also granted a
trans-frontier shipment (TFS) authorisation.
15.      However, the Environment Agency apparently issued the modified
waste management licence on the assumption that the ships were to
be dismantled in dry dock. On 7 October 2003 the responsible local
authority, namely the Hartlepool Borough Council, issued a press
release which stated that it had notified AbleUK that there was no valid
planning permission for the construction of a dry dock facility at the
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TERRC site. It followed from this that the Environment Agency had
issued its modified licence on a false assumption: in addition it had not
assessed the impact of the effect of the dismantling operations in the
local area and upon the environment by taking into account the
possibility of the works being carried out in a wet dock. Consequently,
on 30 October 2003 the Environment Agency informed AbleUK that the
authorisations that had previously been granted to permit the
dismantling of ships at the TERRC site were invalid. Both MARAD and
AbleUK were forced to reconsider their position. By that stage the four
ships in question were already under tow across the Atlantic having
been certified as being safe to be moved from the United States.
16.      DEFRA issued a press release on 6 November 2003 which contained a
statement by the then Environment Secretary, Mrs Margaret Beckett.
The release showed that the Environment Agency had made it clear to
the parties and to the UK authorities that the proposed transport of the
vessels to Hartlepool could not be completed consistently with
international rules and community law and that the UK Government
agreed that the law required the return of the vessels to the United
States. However, equally the Government recognised that the
immediate return of the first two vessels would be “impracticable” on
the basis of a number of difficulties to which attention had been drawn
by the US authorities. In the circumstances the UK Government was
exploring how best to store the ships on a temporary basis. Another
statement of the following day issued by Mrs Beckett contained the
following passage:
“We continue to work closely with the United States authorities to
examine the safety and liability concerns they have raised to proposals
that the second pair of ships return to the US. We take those concerns
seriously, and are looking for rapid resolution of that question”.
17.      On 12 November 2003 the Environment Agency issued an emergency
modification of AbleUK’s waste management licence to allow the first
two ships to dock. The second pair of ships arrived on 27 November
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2003 or 2 December 2003. The modification prohibited the dismantling
of any of the four vessels. All four vessels remained in Hartlepool
without any authorisation having been granted to allow for them to be
dismantled. As indicated above the same appears to remain the
situation today.
18.      There then followed the meeting and telephone calls of 13, 14 and 15
November as referred to in the information requested of the FCO. On
15 November 2003 the US Department of Transportation issued a
statement in which it said that it appreciated the decision made by
DEFRA to “permit the second pair of ships to dock at the AbleUK
facility in Teesside, England for safekeeping over the winter” and such
action “offers a responsible solution that fully addresses the safety and
environmental concerns associated with an Atlantic tow at this time of
year”. DEFRA issued a similar statement on the same date to the
effect that following what it called the “exploration of alternative
options”, the UK Government had agreed with the US authorities that
the second pair of vessels should continue their passage to Hartlepool
where they would be “securely stored pending a decision on their
future”. The press release noted that as with the first two ships, “the
Environment Agency will place requirements on them to ensure the
environment is fully protected and the ships remain ready for return to
the United States”. The statement added that both Governments were
working closely to “examine the practicability of the return of the third
and fourth ships to the United States”.
19.      On 19 November 2003 the Environment Food and Rural Affairs
Committee of the House of Commons heard extensive oral evidence
about the relevant issues surrounding the importation of the vessels
and the decisions made by the UK Government and the appropriate
regulators. The same events also led to two High Court decisions
involving applications for judicial review. In the first, namely R(ota FOE
Ltd) v The Environment Agency and others [2003] EWHC 3193
(Admin) Sullivan J held by way of a preliminary point that the Agency
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was correct in conceding that the decision to modify the waste
management licence could not stand. In the second decision, namely
R (ota Gregan & Others) v Hartlepool Borough Council and AbleUK
Limited [2003] EWHC 3278 (Admin) Sullivan J granted a declaration
that the planning permission granted to Able UK in 1997 by the
Hartlepool Borough Council did not allow for the dismantling of ships.
The judge remarked that given the absence of suitable authorisation,
the position remained “highly unsatisfactory” from the point of view of
all those involved and he urged the carrying out of a “thorough
investigation into the decision making processes that have so
conspicuously failed to prevent the most unsatisfactory situation from
arising …” (see para 92 of the latter judgment).
20.      In April 2004 the Environment Agency published a review to identify the
lessons to be learned from the incident and DEFRA published in its
own right a similar report. The Tribunal has read these reports. The
two reviews consider the regulations and practices relating to the
dismantling and recycling of vessels that might contain hazardous
materials. The DEFRA report considered general issues of policy
whilst the Environment Agency report had regard to the lessons that
needed to be learnt by those responsible for applying the relevant
regulations based on the events in question. In November 2004 the
House of Commons Committee referred to above published its own
report which considered a wide range of issues concerning the
dismantling of vessels in the United Kingdom as well as the
international regulatory framework which applied to such activities.
The evidence
21.      The Tribunal has had the benefit of hearing evidence from two
witnesses. Both provided statements on so called open and closed
bases. In the case of the closed statements the evidence was
considered in the absence of the Additional Party. However, as
matters have emerged and developed, save with regard to the contents
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of paragraph 25 below, it is fair to say that nothing that transpired in the
closed sessions in any way bore upon the true issues in the appeal.
22.      Ms Anne Pringle who gave evidence on behalf of the FCO is a highly
experienced diplomat. She is currently Director of Strategy and
Information at the FCO. She reports to the Permanent Secretary and is
a member of the FCO board. She has had numerous foreign posts,
most recently as Ambassador to the Czech Republic. It is fair to say,
however, that her experience was not (save perhaps in those latter
capacities) one which had dealt directly with the diplomatic relationship
with the United States, either by her having served there or in any
office or function specifically connected with that relationship: however,
the Tribunal entirely accepts that she was a competent witness as
regards international relations generally. In her view the release of the
information requested was capable of prejudicing the UK’s relations not
simply with the United States but also more widely within the
international community as a whole. The gist of her evidence is
reflected in the following passage from her open witness statement,
namely what she called “the ability to talk freely and frankly on the
controversial issues of the day, particularly at the levels at which policy
decisions are taken.” She went on to add:
“This freedom and frankness would be seriously compromised if either
or both of the parties to an exchange they considered to have occurred
on a confidential basis believed that the content of the discussion
would be made public”.
23.      Both in her open statement as well as in evidence she stressed the
importance regarding good and effective administration with regard to
the maintenance of the records of any such discussions. She also
discussed the levels of protection required for documents which were
generated as a result of such discussions, e.g. Top Secret, Secret,
Confidential and Restricted. She claimed that a “weighty public
interest” was required to justify disclosure under section 27 and again
both in her oral and her written evidence pointed to three factors which
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militated in favour of non-disclosure, namely the age of the information
(albeit likely to diminish in importance over time), the political and other
sensitivity of the subject-matter involved and the level at which the
exchange or exchanges took place. She also contended that
“considerable weight” should be given to judgements made by “experts
in the field”. She also relied on the fact that the United States had in
this case voiced “strong objection” to disclosure, quoting a response
received from the US State Department in November 2005 which had
stated that release of the documents in question:
“… could be detrimental to the climate of confidence that contributes to
the effectiveness of the UK-US diplomatic relationship and we would
not release them”.
24. The second witness was Andrew Howarth, currently head of the
Hazardous Waste Unit in the Waste Management Division at Defra.
He commented upon the assertion made by the Commissioner in the
Commissioner’s Decision Notice to the effect that the FCO in
assessing the public interest should have considered the extent to
which the disputed information would have borne out the conclusions of
the reports published in the wake of the events of 2003 as well as,
conversely, the extent to which the same information might suggest
that the enquiries leading to the reports were defective. However, the
true importance of Mr Howarth’s evidence emerged in cross-
examination in open session. First, he accepted in answer to questions
from the Commissioner’s Counsel, Mr Pitt-Payne, that there were what
Mr Pitt-Payne called three “themes” in the public debate insofar as that
debate concerned the trans-shipment of the “ghost ships” from mid
2003 onwards, namely first the question of whether environmental
damage would arise from any dismantling work that might be carried
out in the United Kingdom, secondly the fact that the ships were being
transported over the Atlantic without the necessary authorisations in
place and thirdly, that once it was clear that the first two ships were
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destined to come to the United Kingdom what should happen to them
once they did arrive in this country.
25.      Mr Howarth gave evidence that when it became clear that the second
pair of ships were on their way across the Atlantic, as indicated above,
other options suggested themselves apart from the second pair of
ships at that time being allowed to dock in the United Kingdom. One
option was that the vessels be kept in the Azores pending resolution of
the overall position concerning authorisation and the second option
involved directing them to an alternate point outside the United
Kingdom. He made it clear that the United States was reluctant to
accept, if not directly opposed to, the return mid-passage to the United
States of the second pair of vessels, in part on account of an inability to
obtain suitable reinsurance coupled with other considerations. He
added that in connection with the press release referred to above,
namely the one issued on 15 November, a “final decision” to allow the
vessels to dock in the United Kingdom “would have been made around
14th, 15th November …”. However, in closed session, Mr Howarth
confirmed that the decision to allow the second pair of vessels to dock
had effectively been made by DEFRA prior to 13 and 14 November.
The decision he said reflected the fact that as evidenced by DEFRA’s
own press release on 7 November, the United States despite having
received proposals that the second pair of ships should turn back,
retained deep concerns about the feasibility of such a proposal and by
13 November had concluded that the alternatives reflected in the
various options mentioned above were not feasible, thereby causing
Defra to come to the view prior to 13 November that the ships should
dock in the United Kingdom.
The Environment Information Regulations 2004 (EIR)
26.      As explained above at paragraph 11, the Decision Notice determined
that the disputed information was not “environmental information” and
therefore fell to be considered under FOIA. The EIR provide that the
public authority shall make “environmental information” available on
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request. The term “environmental information” is defined by Regulation
2 in relevant part as follows, namely:
“”environmental information” has the same meaning as in Article 2(1) of
the Directive [i.e. Council Directive 2003/4/EC on public access to
environmental information], namely any information written, visual,
aural, electronic or another material form on –
(a)       the state of the elements of the environment, such as air and
atmosphere, water, soil, land, landscape and natural sites
including wetlands, coastal and marine areas, biological
diversity and its components, including genetically modified
organisms, and the inter action among these elements;
(b)      factors, such as substances, energy, noise, radiation or waste,
including radioactive waste, emissions, discharges and other
releases into the environment, affecting, or likely to affect the
elements of the environment referred to in (a);
(c)       measures (including administrative measures) such as policies,
legislation, plans, programmes, environmental agreements, and
activities affecting or likely to affect the elements and factors
referred to in (a) and (b) as well as measures or activities
designed to protect those elements;”
27.      Regulation 12 of the EIR contains a list of so called exceptions to the
duty to disclose environmental information in particular by Regulation
12(5) by providing that:
“A public authority may refuse to disclose information to the extent that
its disclosure would adversely affect –
(a) international relations, defence, national security or public
safety;”
28.      As indicated above, the Tribunal was invited by FOE to rule on whether
the disputed information constituted “environmental information” within
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the meaning of the EIR. The principal difference between the EIR and
section 27 of FOIA is that, as Mr Michaels for FOE pointed out, the
threshold is arguably less easy to satisfy under Regulation 12(5)(a) of
the EIR than under section 27 which requires that information is to be
exempt if its disclosure “would or would be likely to prejudice” relations
between the United Kingdom and another State.
29.      Whilst fully accepting, as he was clearly bound to do, that he could not
examine the disputed information, Mr Michaels raised a number of
points which the Tribunal feels it is appropriate to deal with.
30.      First, the phrase “information relating to the environment” found in the
appropriate Council Directive referred to above and in effect re-enacted
in Regulation 2 of the EIR has been held to include a statement of
views advanced by a public authority made in connection with planning
approval for the construction of a proposed ring road. See
Mecklenburg v Pinneberg – Der Landrat ECJ C-321/96 (17 June 1998)
and that in the circumstances a broad interpretation had to be afforded
to the concept of “environmental information” under the EIR: see also
R v Secretary of State for the Environment ex p Alliance Against the
Birmingham North Relief Road [1999] Env LR 447 per Sullivan J
especially at 470.
31.      Secondly, Mr Michaels contended that since the vessels in question in
this case constituted waste, the definition in Regulation 2(1)(b) was
directly engaged and moreover Regulation 2(1)(a) was engaged on the
basis that there here existed information which could be said to relate
to the way in which the importation of the ships would or might affect
the state of any of the elements of the environments listed in that sub
paragraph.
32.      Both the Commissioner and the FCO were agreed that the EIR did not
apply. The Tribunal heard argument to this effect from both those
parties, of necessity in closed session. It informed the parties during
the appeal that it was of the view that the EIR did not apply. It
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undertook to give such reasons but again since the reasons will relate
to the content of the disputed information they will be given in a
separate judgment to be made available solely to the Appellant and to
the Commissioner.
The issues in the Appeal
33.      Apart from the question of whether the requested information fell within
the EIR, the two issues on the appeal are:
(1)       whether the exemptions in section 27 of FOIA are engaged and
if so which, and to what extent,
(2)       whether the public interest in maintaining the applicable
exemption or exemptions outweighs the public interest in
disclosure; the Commissioner considered that the applicable
exemption was section 27(1); paragraph 5.9 of his Decision
Notice shows that his conclusion was based on the FCO’s
judgment that prejudice was likely to occur.
34.      Section 27(1) involves a prejudice-based exemption. Such exemptions
have been considered in a number of the Tribunal’s decisions most
recently in Office of Government Commerce v Information
Commissioner (2 May 2007) EA/2006/0068 and 0080). At paragraphs
40 and 41 of the Tribunal’s judgment the following passages appear,
namely:
“40. The Tribunal has considered the meaning and application of the
prejudice test, which is common to a number of qualified exemptions
under FOIA, in several decisions e.g. Hogan and Oxford City Council v
Information Commissioner and John Connor Press Associates Limited
v Information Commissioner. These cases found the term “would
prejudice” means that it is “more probable than not” there is prejudice
to the specified interests set out in the exemption. The other part of the
prejudice test, “would be likely to”, has been found by the Tribunal to
mean something less than more probable than not but where “there is
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a real and significant risk of prejudice” (Hogan at paragraph 35). This
finding has drawn support from a decision in R (on the application of
Lord) v Secretary of State for the Home Office [2003] EWHC 2073
(Admin).
41. In other words the Tribunal has found that the occurrence of the
prejudice to the specified interest in the exemption has to be more
probable than not or that there is a real and significant risk of prejudice,
even if it cannot be said that the occurrence of prejudice is more
probable than not. The probability of prejudice expressed by these two
limbs of the test are not too far apart.”
In the Office of Government Commerce v Information Commissioner
decision it was argued unsuccessfully that the basis on which the
second limb set out above was set far too high. The Tribunal rejected
that argument. This Tribunal is not minded to disagree with that finding
which reflects an approach which is now, it seems, well entrenched in
its jurisprudence.
35.      If a prejudice-based exemption is engaged two distinct issues need to
be addressed: first what is the risk of the prejudice and secondly what
is the likelihood of the occurrence of the prejudice. These elements
may differ from case to case and much will turn on the particular
subject matter of the exemption.
36.      In the present case, a number of general observations can be made
with regard to section 27(1):
(1) section 27(5) defines the term “State” as including the
“government of any state and any organ of its government”:
thus in most cases the question will be whether there may be
prejudice to relations as between the UK Government and the
Government of another State: whether an entity is an “organ” of
a foreign state’s government will be a question of fact and
degree and consideration will need to be given at least to the
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degree of autonomy attributed to the “organ” in question: the
latter question, however, does not arise in the present appeal;
(2)       the sole question raised by section 27(1) is whether prejudice
may “occur to the relations” between the United Kingdom and
another State: although the natural inference is that such
relations would normally reflect exchanges between the
Governments and their organs, i.e. diplomatic exchanges, there
seems no reason to confine the meaning of section 27(1) to
such exchanges: indeed there may be little, if any, diplomatic tie
or ties in a given case between the UK Government and a
foreign State, and such circumstances would not prevent the
disclosure of sensitive information risking prejudice or further
prejudice to the relationship in question: again, however, the
latter scenario is not in play in the present appeal;
(3)       the FCO urged the Tribunal to have regard to the FCO’s own
relevant expertise with regard to the predictable degree of
possible prejudice in the sense that the same reflected a proper
evaluation of the likely prejudice: the Tribunal is loathe to
sanction unqualified recourse in such a way in all cases where
section 27(1) is engaged: this issue will be referred to below in
connection with the contention that the question of foreign
relations and any decisions relating thereto are in some way
non-justiciable and that in this regard courts and tribunals should
not make orders that would require the Government in any way
directly or indirectly to conduct foreign policy in a particular way;
(4)       there is clearly a degree of overlap between the subject matter
of each of sub-paragraphs (a) to (d) of section 27(1): however,
as between sections 27(1) and 27(2) there is only an overlap
insofar as the information requested of the public authority
includes or refers to confidential information obtained inter alia
from a foreign State in accordance with the expanded definition
of confidentiality contained in section 27(3);
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(5) it follows from (4) above that if information is provided by a
foreign State in circumstances where confidentiality in the
extended sense referred to (including that relating to the identity
of the persons imparting the information) did not apply,
disclosure of that information should nonetheless not operate if
the likely effect of disclosure is to prejudice the international
relations of the United Kingdom generally, having regard to the
information itself: this is subject to the further observation that
the term “information” is not as such defined in FOIA and can,
therefore, connote knowledge of any fact or event, e.g. as here
the identity or identities of the persons who are involved in a
particular exchange or series of exchanges: information will
remain information even if it is not directly informative to the
recipient.
Prejudice and the balancing of the respective public interests
37.      In his Decision Notice at paragraph 5.17 which is quoted above the
Commissioner stated that he accepted that there was likely to be
“some prejudice” to US/UK relations but nonetheless considered that
such prejudice would be “slight”. In the circumstances although the
Commissioner gave weight to the judgment of the FCO he formed his
own assessment as to the degree of prejudice and the likelihood of its
occurrence.
38.      The Tribunal is fully entitled on the hearing of an appeal to make its
own assessment both as to the seriousness of any possible prejudice
and as to the likelihood of its occurrence: see Guardian Newspapers
and Brooke v Information Commission and the BBC (EA/2006/0011
and 0013 especially at paragraph 14. In particular the Tribunal can
review findings of fact in the light of all the evidence before it. In DfES
v Information Commissioner and Evening Standard (EA/2006/0006) at
para 20 the Tribunal confirmed that the competing public interests must
be assessed by reference to the date of the relevant request. Although
it was rightly pointed out in the Tribunal’s view, that account should be
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taken of the time that has passed, the Tribunal would add that the
overall effect of the passage of time since the time of the request may
well not militate in favour of disclosure in a case where the disclosure
of the disputed information could never have been regarded as being in
the public interest: see and compare DTI v Information Commissioner
(EA/2006/007) particularly at paragraph 44 and 46.
39. In the circumstances of this case and in considering the possible level
of prejudice as well as the likelihood of such prejudice the Tribunal
respectfully disagrees with the Commissioner’s assessment in his
Decision Notice. It does so for the reasons set out below.
(1)       Even though Ms Pringle both in her written statement and in her
oral evidence contended that only the FCO had the experience
to judge whether the release of the disputed information would
harm relations between the United Kingdom and the United
States, as indicated above, the Tribunal does not accept that
this matter was or is for the FCO’s judgment either in the sense
contended for or at all and rejects any contention as submitted
by the FCO that the judgment of a public authority in such a
case must be accepted unless otherwise perverse or in some
other way as to be so unreasonable that no tribunal could
accept it.
(2)       On the other hand the Tribunal accepts that the view of the FCO
as the relevant public authority is one that can properly be taken
into account with the question of weight to be decided
dependent upon the circumstances of the case.
(3)       The Tribunal has indicated above that it does not regard Ms
Pringle as perhaps the ideal witness to have spoken in particular
as to the possible prejudice to the relationship between the
United Kingdom and the United States; however, despite the
lack of her direct experience of those particular diplomatic ties,
the Tribunal is prepared to accept the gist of her evidence
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particularly when measured against the similar expressions
emanating from the United States both in March 2005 and in the
later exchange of November 2005 quoted above.
(4) Even though the Tribunal is not persuaded by the contention on
the facts of this case that the content of the exchanges
constituting the disputed information were necessarily of that
degree of sensitivity contended for by Ms Pringle, the Tribunal
nonetheless remains satisfied that the exchanges within the
scope of the request were at a sufficiently high level as to have
attracted a shared assumption that they were made in
confidence.
40.      As is clear from the earlier part of this judgment, there were at least
four principal subjects relating to the facts which form the subject
matter of this Appeal and which it can be justifiably be said were of
public concern at the relevant time, namely;
(1)       the fact that the vessels were being imported in order to be
dismantled in the United Kingdom;
(2)       the fact that authorisations previously given to AbleUK were
then withdrawn;
(3)       the fact that the United Kingdom Environment Agency had given
its consent to the transhipment of the vessels prior to the
necessary consents being finalised; and
(4)       the lack of coordination among the United Kingdom regulators.
It is against that background that the Tribunal has to assess the
respective arguments for and against disclosure.
41.      The arguments in favour of disclosure can be summarised as follows,
namely:
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(1) the four matters as set out in the preceding paragraph were of
public concern;
(2)      in particular, as demonstrated by the two reports issued by both
DEFRA and the Environment Agency which were issued in the
wake of the events in question, it was in the public interest to
understand how the entire situation surrounding the
transportation of the Ghost Ships to this country came about;
(3)      the disputed information had at least the potential to add to the
sum total of the public’s interests and concerns as to the matters
referred to in (1) and (2); and
(4)      moreover, the public had a right to know the extent to which
Ministers and senior officials were involved in the decision
making process.
42. The arguments in favour of maintaining the exemption can be
summarised as follows, namely:
(1)      the exchanges in question were being conducted on the basis of
a shared assumption that they were held in confidence;
(2)      the prosecution of a successful foreign policy depends in a large
part, if not wholly, upon mutual trust and confidence;
(3)      proper records might not be kept if there were a perceived view
of disclosure;
(4)      the United States had explained its own view in a formal manner
that it would have resisted disclosure being made of the
information in question under its own freedom of information
regime;
(5)      particular damage would be caused to the special relationship
which obtained between the United States and the United
Kingdom, in particular with regard to the way in which the United
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States might treat information that the United Kingdom intended
to share in confidence with the United States;
(6)      disclosure in the way sought might have implications with regard
to the United Kingdom’s dealings with other members of the
international community;
(7)      the information in question was marked “Restricted” to reflect
many, if not all, of the above considerations;
(8)      it was not for the Commissioner, let alone the Tribunal, to
second-guess the FCO in relation to the making of foreign
policy.
This Tribunal notes that in the DfES case mentioned above the
Tribunal quite properly suggested that in the context of section 35(1) of
FOIA which deals with the formulation or development of Government
policy (which attracts a qualified exemption), while the seniority of
those participating in recorded discussions may increase the sensitivity
of the matters minuted, no information under that section would be
exempt simply on account of its status, its classification or the seniority
of those whose actions are recorded. However, the present Tribunal is
loath to regard that as a principle of general application. Mindful of the
fact that the balancing of public interest with regard to any qualified
exemption must reflect the subject matter of the exemption, the present
Tribunal takes the view that the principles set out in the DfES case do
not necessarily apply to other exemptions such as that presently being
considered.
The Tribunal’s findings
43. The Tribunal agrees with the Commissioner that section 27(1) is
engaged. In answer to the questions raised in paragraph 35, the
Tribunal finds that on the facts of this Appeal there is a significant risk
of prejudice to UK/US relations and international relations as a whole
were disclosure to be ordered and that equally the likelihood of such
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prejudice is high on the basis of the evidence which the Tribunal has
heard. The Tribunal is satisfied that the arguments in favour of
maintaining the exemption are sufficiently made out in this case. The
Tribunal lays some store upon the arguments put forward in favour of
maintaining the exemption as reflected in sub paragraphs (1), (2), (4),
(5) and (6) of paragraph 42 but given a different set of facts and in a
different set of circumstances less weight may be accorded to each of
those elements. On the other hand the Tribunal does feel that proper
stress can be placed on the following matters, namely:
(1)      there was nothing of substance in the disputed information which
would have added in any material way to the public’s
understanding of the four areas of public concern outlined above
at paragraph 40.
(2)      there was an abundance of material in the public domain which
addressed each of the four highlighted areas of public concern,
principally in the forms of the DEFRA and Environment Agency
Reports;
(3)      in particular, the evidence before the Tribunal made it clear that
the exchanges in question played no, or no meaningful, part in
the decision made by Mrs Beckett to allow the second pair of
vessels to dock in this country; Mr Howarth, in his evidence,
made it clear in the Tribunal’s mind that the relevant decision
preceded the dates on which the exchanges took place and that
such decision was in any event largely dictated by events over
which the United Kingdom really had little, if any, control;
44. In the light of the elements set out in subparagraphs (1) to (3) above
therefore, the Tribunal takes the view that disclosure of the disputed
information would, in all the circumstances, have been and indeed
remains unjustified. As Mr Swift, on behalf of the FCO put it in the
course of argument, in all the circumstances, it is difficult to see how
release of this information would actually inform any public debate on
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the basis that there is a clear distinction between the information which
simply added to the sum of human knowledge, and information that
actually furthered a clear public interest.
45.      However, having come to the determination referred to above, the
Tribunal is not persuaded that the risk of disclosure would necessarily
prejudice the need or perceived wish to keep proper or adequate
records of any exchanges in respect of which an exception might
otherwise be claimed.
Section 27(2)
46.      As pointed out above, some reliance was placed on this exemption by
the FCO during the Appeal. The Tribunal is not persuaded that section
27(2) is engaged on the facts of this case.
Further observations on section 27(1): non-justiciability
47.      Mr Swift, on behalf of the FCO, addressed the Tribunal at length on an
argument based on the principle that English courts have consistently
refrained from requiring an executive to act on the basis of an
assessment by the court as to the best means of effecting international
relations, see e.g. R v Secretary of State for the Home Department ex
parte Lauder [1997] 1 WLR 839 per Lord Hope at 857 C-D; R v
Secretary of State for Foreign and Commonwealth Office ex parte
Pirbhai (1985) 107 ILR 462 per Sir John Donaldson MR at 479. To be
fair to Mr Swift, he placed reliance on these authorities and others of a
similar nature in support of his contentions as it was put in his skeleton
argument that: “any request for information under FOIA which falls for
consideration must be approached with similar caution …”. Without
intending any disrespect to the careful and painstaking way in which Mr
Swift developed this contention, the Tribunal does not find reliance on
these authorities of any assistance since section 27 is not an absolute
exemption nor should it be approached as such. The Commissioner’s
function, as well as that of the Tribunal, is to address on a case-by-
case basis the competing interests within the ambit of the section:
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indeed, it is not unfair to say that the carrying out of that exercise is
recognised elsewhere in Mr Swift’s written submissions. The Tribunal
was referred in particular to an Australian decision, namely Re Maher v
Attorney General’s Department (1985) 9 ADL 731. The equivalent
provisions of section 27 in the Australian Freedom of Information Act
1982 are cast in different terms and the Tribunal places no store upon
this decision for that reason, save to say that the Australian
Administrative Appeal Tribunal in its decision showed its reluctance to
convert what is a prejudiced based exemption into a purely class based
exemption, and to that extent, this Tribunal is fully in sympathy with that
approach.
Conclusion
48. For all the above reasons the Tribunal allows this Appeal.
DAVID MARKS
Deputy Chairman                                                Date 29 June 2007
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