Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal Nos. GIA/447/2014

ADMINISTRATIVE APPEALS CHAMBER   & GIA/448/2014

THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

Appellant: Mr Chris Cole

First Respondent: Information Commissioner

Second Respondent: Ministry of Defence

Tribunal: First-tier Tribunal (Information Rights)

Tribunal Case Nos: EA/2013/0042 & EA/2013/0043

Tribunal Venue: Field House, London

Hearing Date: 23 & 34 September 2013

Decision Date: 30 October 2013

The background to the oral hearing of this application for permission to appeal

1. This is an application for permission to appeal from the decision of the First-tier Tribunal (‘the Tribunal’) dated 30 October 2013 following a two-day hearing on 23 and 24 September 2013. After that hearing, the Tribunal dismissed Mr Cole’s two appeals against the Information Commissioner’s two Decision Notices (DNs), both dated 7 February 2013 (FS50462269 and FS50462865). Those two Decision Notices in turn had followed two FOIA requests that Mr Cole had made to the Ministry of Defence (MOD) about the use of drones (or ‘unmanned aerial vehicles’, or UAVs, as they are referred to in the language of MOD-speak) in Afghanistan.

2. Judge Pilling, who had chaired the Tribunal in question, refused Mr Cole permission to appeal to the Upper Tribunal in her ruling dated 6 December 2013. Mr Cole then renewed his application direct to the Upper Tribunal. He answered “No” to the question on the UT11 Form asking whether he wished to have an oral hearing of the application. However, this was qualified by the remark that if the Upper Tribunal would be assisted by oral argument, or was minded not to grant permission, then an oral hearing was sought.

3. I conducted an initial consideration of the application on the papers. My main focus, of course, was the Tribunal’s open decision with reasons, read with the proposed grounds of appeal. However, I should make it clear that in undertaking that preliminary consideration I reviewed all the relevant closed material, and in particular the Tribunal’s companion closed decision with reasons. Indeed the only closed material I did not read comprised the detailed written notes of the Tribunal panel members of the hearing in the closed session, as it would be very unusual for there to be any need to consider those notes at this stage of the proceedings. I formed the view that both of the contingencies mentioned by Mr Cole on Form UT11 applied, and on 19 March 2014 issued some preliminary Observations with directions for an oral hearing.

4. I held that oral hearing on Monday 20 July 2014. Mr Ian Wise QC and Mr Sam Jacobs, both of counsel, appeared for the Applicant Mr Coles. The First Respondent did not attend and was not represented. The Commissioner had been represented by Mr Robin Hopkins of counsel below, but did not take any active part in these proceedings before the Upper Tribunal (I should add that I can understand why, as although the general issues raised by this case are of considerable public importance, it does not involve particularly complex issues of information law which might be relevant to other cases). The MOD was represented by Mr Charles Bourne QC. Mr Jacobs and Mr Bourne had both appeared before the tribunal below. I am grateful to all counsel for their submissions and associated endeavours on this matter.

The original information requests made to the Ministry of Defence under FOIA

5. Request 1, made on 5 January 2012, principally asked for information about the date and province of each weapon launch from RAF drones in Afghanistan. This led to the Commissioner’s DN FS FS50462269. Request 2, made on 28 May 2012, asked how many drone weapon launches had been made under ‘daily air tasking orders’ and how many under ‘dynamic targeting procedures’. This led to DN FS50462865. In crude terms ‘daily air tasking orders’ are pre-planned instructions, before the drone is airborne, whereas ‘dynamic targeting procedures’ are changes to such instructions, typically in reaction to real-time developments on the ground that are considered to require immediate response.

6. It is only right to point out that the MOD provided certain information in relation to each of these two requests, e.g. a breakdown of the number of RAF drone strikes by year since 2008. However, the MOD refused to release the disputed information, relying on section 26 of FOIA (and also section 27 in relation to Request 1). The Information Commissioner concluded that the information in question was exempt from disclosure in both cases by virtue of section 26. Given those findings, the Commissioner did not consider the potential application of section 27 (FS50462269 at [31]). As noted, the Tribunal dismissed both appeals.

The Applicant’s grounds of appeal against the First-tier Tribunal’s decision

7. At the oral permission hearing Mr Wise QC, for Mr Coles, advanced three principal grounds of appeal. Ground 1 was that the Tribunal had erred in law by finding that the section 26 exemption applied in respect of both Request 1 and Request 2. Grounds 2 and 3 were both reasons challenges; namely that the Tribunal had failed to give adequate reasons for its conclusion that section 26 was engaged and as to how the public interest test fell in favour of maintaining the exemption.

Ground 1

The parties’ submissions

8. Mr Wise QC argued first that the Tribunal had misdirected itself as to the information about drone strikes which was already in the public domain. He pointed out that, independently of any FOIA requests, the RAF makes frequent releases of information about drone strikes in Afghanistan. Many examples of these press releases (which are what they are in effect) were in the tribunal hearing bundle. The Applicant’s argument, in short, was that these RAF reports contained a considerable amount of information, often at a far greater level of detail than merely the province within which the particular drone strike took place – for example, report [65] stated that a drone had been tasked with “tracking a known insurgent travelling on a motorbike in the region of Lashkar Gah” for 5 hours “and it was only once there was no risk to civilians that the aircraft was authorised to carry out a successful strike”.

9. The Tribunal, according to Mr Wise QC, was therefore simply wrong to conclude that these RAF releases “have been drafted carefully to reveal very little by way of detail that could identify where a particular weapon launch took place” (Tribunal’s decision at [37]). That, Mr Wise QC argued, was an unsustainable finding of fact which amounted to an arguable error of law. It also followed, he argued, that there was no prejudice in the disclosure of a complete list of drone strikes but organised by province only.

10.  Mr Bourne QC made two main submissions by way of reply. First, in general terms the RAF releases were, as the Tribunal found, sufficiently vague to prevent anyone from identifying with certainty a particular drone strike. Second, the RAF reports were merely examples; they did not purport to give a comprehensive geographical coverage of the use of drone strikes in Afghanistan. He conceded that the particular example cited by Mr Wise QC had a “specific ring” to it. However, that did not detract from the validity of his point about the generality of these reports. In effect, Mr Bourne QC argued, Mr Wise QC was seeking to argue a perversity challenge.

The Upper Tribunal’s analysis

11.  It is important to read the Tribunal’s decision as a whole and in context. The bundle of evidence that the Tribunal had before it comprised a total of 76 RAF press reports of drone strike operations between January 2010 and August 2012. The Tribunal’s job was to undertake an overall and global assessment of the nature of those reports. The level of detail involved in those reports in plainly a factual assessment based on an overall evaluation of all the evidence. The Tribunal made a clear finding of fact that the RAF reports “have been drafted carefully to reveal very little by way of detail that could identify where a particular weapon launch took place”. It seems to me that this has to be an assessment based on the generality of those reports. There will, inevitably, be some outliers where more information is revealed than in others, as in the two examples I was specifically directed to. However, the Tribunal also acknowledged that Squadron Leader Brown, the MOD witness, was uncomfortable with the level of detail in some of the reports. In addition, as Mr Bourne QC noted, there was no suggestion that the RAF reports were comprehensive. Furthermore, there was an express finding of fact by the Tribunal that the source of a particular weapon strike would not necessarily be obvious to a bystander on the ground (paragraphs [38]-[39]).

12.  I accept, of course, Mr Wise QC’s submission in principle that an unsustainable finding of fact may give rise to an arguable error of law such that permission should be given. However, I also bear in mind the warning of Laws LJ against the “misused of factual arguments, sometimes amounting to little more than nuance, and often points of small detail, as a basis for assaulting the legality of a decision” (AJ (Cameroon) v Secretary of State for the Home Department [2007] EWCA Civ 373 at paragraph [22]). Reading the Tribunal’s decision as a whole, and in the important context of all the material before it, I am satisfied that this is just such a point of detail or nuance. The passage complained of was a finding based on the RAF reports as a whole. It was a sustainable finding of fact on the evidence which is not undermined by a handful of individual examples where rather more detail is included. 

Ground 2

The parties’ submissions

13.  Secondly, Mr Wise QC argued that the Tribunal had failed to provide adequate reasons for its conclusion that disclosure of the disputed information might prejudice the capability, effectiveness or security of the armed forces within section 26. In doing so, he said, the Tribunal was unduly deferential to the evidence of Squadron Leader Brown. The Applicant accepted that appropriate weight ought to be given to Sqn Ldr Brown’s evidence. However, he argued that the witness’s evidence had to be subject to critical analysis, not least given the reliance on closed material, which by definition had not been available to Mr Cole. In effect, Mr Wise QC argued, the Tribunal had started from the position that the Squadron Leader’s evidence was determinative, absent any evidence to the contrary. He submitted that the Tribunal should have explained in general terms why release of the disputed information would be prejudicial to the armed forces within section 26. In particular Mr Wise QC attacked paragraph [42] of the Tribunal’s reasons as inadequate. This read as follows:

“[42] It is difficult for anyone to assess or estimate what use enemy forces could make of the information withheld by the MOD. The enemy forces in Afghanistan are unknown, uncertain and operate covertly. Because of his role in intelligence gathering, the Squadron-Leader was able to provide us with specific evidence about how the enemy has and could adapt their tactics from information they receive of the activity of coalition forces. We gave substantial weight to his evidence. There was no evidence or cogent reason advanced for us to depart from his view of the use to which enemy forces in Afghanistan could put this information. We are therefore satisfied that the disclosure of the information withheld by the MOD would cause prejudice to the effectiveness, capability and security of relevant forces in Afghanistan.”

14.  Mr Bourne QC understood Mr Cole’s frustration at the lack of more precise detail. However, he argued that the Tribunal’s approach to the divide between the open and closed material had been pitched perfectly. It had been elegant and precise in the open reasons at paragraph [42] and had given full reasons in the closed decision. Mr Wise QC had argued that the Tribunal needed to go further and explain what changes in tactics could be involved. However, of itself, Mr Bourne QC submitted, such an explanation would reveal vital clues about the disputed information. As soon as one disclosed more detailed information about the types of tactical changes in question, then one provided clues as to the strengths and weaknesses of UK armed forces operations.

The Upper Tribunal’s analysis

15.  First-tier Tribunals have a tricky role to negotiate with the use of closed materials in FOIA cases, as is evident from the burgeoning litigation which has taken place before the Court of Appeal and Upper Tribunal on such matters. I am satisfied this Tribunal approached such issues entirely properly (see their detailed synopsis of the procedure adopted at paragraphs [11]-[19] of the decision, which Mr Wise QC did not seek to challenge). It then came down to the reasons to be given in open and closed. The key passage, it seems to me, is the Tribunal’s statement in the open decision that “Because of his role in intelligence gathering, the Squadron-Leader was able to provide us with specific evidence about how the enemy has and could adapt their tactics from information they receive of the activity of coalition forces.” I agree with Mr Bourne QC that this was both elegant and precise. As soon as specific examples were given as to how “the enemy has and could adapt their tactics from information they receive of the activity of coalition forces”, then the cat would be well and truly out of the bag. Those examples were given by Sqn Ldr Brown in his closed evidence and referred to by the Tribunal in its closed decision. The officer’s evidence was not simply unquestioningly adopted – it was rigorously tested (see for example the Tribunal’s exploration of the possibility of partial disclosure of the disputed information at paragraph [43] of the open decision).

16.  I also bear in mind the observations of the Upper Tribunal three-judge panel (of which I was a member) in All Party Group on Extraordinary Rendition (APPGER) v Information Commissioner and Foreign and Commonwealth Office [2013] UKUT 560 (AAC) at paragraph [44]:

“... it seems to us that in many cases permission to appeal on the basis of a ‘reasons challenge’ should not be given simply on the basis that the excluded party has not seen the documents or the closed reasoning (if any) and wants the appeal court or tribunal to check the conclusions reached on the application of an exemption to the requested information.  In any event, when dealing with an application for permission the court or tribunal can consider the impact of the closed reasoning.”

17.  Unlike Mr Cole, I have obviously had the advantage of reading both the open and the closed evidence and the open and the closed decisions. The closed decision provides further and more detailed reasons as regards Request 1 (paragraphs [5]-[12]) and Request 2 (paragraphs [13]-[21]). It is also clear from the 22 pages of Judge Pilling’s handwritten record of the Tribunal’s deliberations, which I have now reviewed, that the relevant issues were explored systematically by reference to both the open and closed evidence. Crucially, however, I cannot accept that it is arguable that the Tribunal’s reasoning was inadequate. The Tribunal was indeed required to explain in general terms why release of the disputed information would be prejudicial within section 26. The Tribunal did just that; and giving detailed examples of changes in tactics would have the effect of disclosing precisely the type of information which was protected by section 26. The Tribunal struck the balance in reasons between open and closed in an entirely appropriate fashion. I cannot accept Mr Wise QC’s submission that the Tribunal “was required to state in what way the enemy could adapt its tactics in light of any disclosed information” under the two FOIA requests. To do so, very simply, would be to disclose the very disputed information sought to be protected by section 26, subject of course to the public interest test – which takes us to the third ground of appeal.

Ground 3

The parties’ submissions

18.  The Applicant’s third ground of appeal is a further aspect of the reasons challenge, namely that the public interest balancing test under section 2 of FOIA was misapplied, in particular by the Tribunal’s finding that the disputed information “does not inform in respect of any of the legal or moral considerations of the public debate” (at paragraph [59]) and “will not inform the debate in respect of the capabilities of armed UAVs” (at paragraph [60]). Mr Wise QC submitted that these findings were simply “astonishing”, given that there was ample evidence before the Tribunal, both from Mr Cole himself and in his written evidence from Mr Tom Watson MP, as to the vitally important public interest issues raised by the use of armed drones. The only feasible conclusion was that the Tribunal had failed to appreciate the nature of the public interest in disclosure and so had failed to carry out the balancing exercise properly.

19.  Mr Bourne QC argued that the passages in paragraphs [59] and [60] of the Tribunal’s decision had been taken out of context. The Tribunal had been fully aware of the public interest issues, which it had itemised in detail at paragraph [56]. It had very properly had regard to the information which was already in the public domain (some of it, of course, as a result of the partial releases that had been made under Requests 1 and 2) and had taken into account the public interest issues. The Tribunal had then reached the view that a complete list of strikes by province and date, and a breakdown by different tasking procedures, as sought under Requests 1 and 2, would not materially assist in resolving matters of public controversy. Furthermore, the Tribunal had expressly addressed specific issues of concern that had been raised in the hearing before it (e.g. the wider coalition dimension and the so-called “Playstation mentality”, whereby drone operators are said by some to be more emotionally removed and, by inference, more “trigger-happy” than e.g. pilots of RAF fighter jets).

The Upper Tribunal’s analysis

20.  The Applicant argues that the use of armed drones is matter of legitimate national and international concern and debate. I do not think that is in any dispute. Leaving aside the wider political and policy issues, I acknowledge that there is considerable debate amongst public international law scholars as to the legality (if any) of armed drone strikes. I also accept that in this case the Information Commissioner had certainly reached the view that the disputed information would “provide a clear insight into how [drones] had been used by British forces since 2008” (FS50462269 at [29]), although he went on to conclude that “the public interest firmly favours maintaining the exemption” (FS50462269 at [30]). The Tribunal agreed with that conclusion, but disagreed with the Commissioner as to the value of the particular information.

21.  As I remarked at the oral hearing, the Tribunal had reached a conclusion on the public interest balancing test that was less advantageous to the Applicant than that reached by the Commissioner. However, this does not, of itself, make it “astonishing”. The Tribunal was in a better position than the Commissioner. It had more evidence before it, including oral evidence of Sqn Ldr Brown, which it was able to test. It was perfectly entitled to come to a different conclusion on one aspect of the public interest balancing test, so long as it explained why it had. It did just that. Mr Wise QC quite rightly picked up Mr Bourne QC’s reference to whether the information would resolve matters of public concern. That, of course, is not the test; the question was whether they might inform that public debate. That was the question the tribunal asked itself. It knew the precise nature of the disputed information. It knew the parameters of the public debate over the use of drones and the concerns that had been identified. It was quite entitled to reach the conclusion that the requested information would not materially inform (and not resolve) that debate. In any event it is axiomatic that the weight to be attached to competing factors under the public interest balancing test is a quintessential question of fact for the First-tier Tribunal: see e.g. DBERR v Information Commissioner and O’Brien [2009] EWHC 164 (QB), [2011] 1 Info LR 1087 per Wynn Williams J at paragraph [32].

22.  Behind all this is the point that Mr Bourne QC made in his opening remarks at the oral hearing of the permission application. This was a case where the Tribunal had made a categorical finding of fact that the release of the disputed information would create a risk to life and limb of UK armed forces (see e.g. decision at paragraph [49]). In those circumstances it was always going to be very difficult (putting it fairly mildly) to show that the public interest in disclosure outweighed the public interest in maintaining the exemption. Mr Wise QC, in his opening remarks reminding me of the various public law principles at stake, sought to characterise the Tribunal’s decision as one that was inherently contrary to the fundamental purpose of the statutory scheme established by FOIA. I cannot agree. One of the chief objectives of FOIA is that where a qualified exemption is concerned (as here), those charged with adjudicating on information requests conduct a proper public interest balancing exercise. This Tribunal did just that.

Conclusion

23.  Mr Wise QC for Mr Cole sought to persuade me that Mr Bourne QC for the MOD had not landed a “knock-out blow”. All he had to do at this stage was to show an arguable case to proceed on appeal. In my judgment he is right on the principle to be applied but wrong on its practical application in this case. I have explained above why I take the view that the grounds of appeal are not arguable. There is, quite simply, no realistic prospect that the proposed appeal will succeed, as explained above. This may sound counter-intuitive. I accept, of course, that if it has taken the best part of 6 pages to explain why there is no arguable point of law involved, that may of itself demonstrate that there is indeed just such an arguable point involved. However, the length of this ruling may reflect in part judicial prolixity. More importantly, it also reflects the fundamental significance of the public debate which lies behind Mr Cole’s two requests.

24.  In that context I also acknowledge that even if there is no arguable error of law in the Tribunal’s decision, it may still be appropriate for the Upper Tribunal to give permission as a matter of wider discretion. The circumstances in which that may be appropriate include cases where it would be helpful to have Upper Tribunal authority or guidance on a particular point of law or procedure. I recognise that the legality of the use of armed drones is one of the most important and pressing issues in modern international relations and public international law. The fact that (according to the Tribunal’s decision at paragraph [3]) weapon-armed drones are only operated by the armed forces of the USA, the UK and Israel is some indication of the sensitive and complex issues involved. However, that of itself does not mean that I should give permission where the First-tier Tribunal has properly directed itself as to the law and the facts and has reached a sustainable and fully-reasoned decision on the evidence before it. I therefore refuse permission to appeal.

(Signed on the original)

Nicholas Wikeley

Judge of the Upper Tribunal

(Dated) 24 July 2014