Professor M Wickham-Jones v Information Commissioner & Anor.

The Appellant is a historian with a special interest in the British Labour Party’s policytowards Italy following the Second World War.

On 6 March 2019 he made a request to the FCDO for the declassification of a specific file on the political situation in Italy in 1947. The document was held by the FCDO and hadnot been released to the Public Records Office under the Public Records Act 1958.

The FCDO replied that the information requested was held but that it would not bedisclosed as it was exempt under FOIA, s23(l) (security bodies) or s24(l) (nationalsecurity). Those exemptions are mutually exclusive.

By a decision notice dated 27 November 20 19 the First Respondent (“the
Commissioner”) determined that the requested information was exempt under FOIA,ss23(l) or 24(1).

A hearing was held before the First-tier Tribunal on 13 November 2020 to determinewhether, as a matter of law, it was open to the FCDO to rely on s23(l) or 24(1) in thealternative. It decided on 29 December 2020 that it was not but, by a decision of 1October 2021, the Upper Tribunal (‘UT’) overturned it. 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 requested relates to one of the security bodieslisted in section 23(3).”

The appeal came before us for final hearing on 28 March 2023. The Appellant wasrepresented by Mr John Fitzsimons, counsel, acting pro bono the FCDO by Mr AaronMoss, also counsel. We are grateful to both for their assistance.

We began with brief openings from both counsel. We then moved into a closed session, during which Mr Moss took us in detail through the disputed material. Finally, counsel delivered succinct closing submissions.

FOIA, s23(l) states:

“Information held by a public authority is exempt information if it was directlyor indirectly supplied to the public authority by, or relates to, any of the bodiesspecified in subsection (3).”

The effect of s64(2) is that where information within s23(l) is contained in a “historicalrecord” in the Public Record Office (Now the National Archives), s23(l) creates aqualified exemption. Subject to this, the exemption is absolute. As we have noted, thedisputed file was never transferred to the Public Records Office.

FOIA, s24(l) states:

“Information which does not fall within s23(l) is exempt information ifexemption from sisecurity.”

In the Commissioner’s response dated 17 January 2020, para 21, it is stated that:

“the Commissioner cannot elaborate upon her rationale for the aboveconclusion without revealing which of the two exemptions apply or indeedwithout compromising the content of the withheld information itself.”

The shared view of counsel was that, in explaining its decision-making, the Tribunal hadno more room for manoeuvre than the Commissioner. That said, Mr Fitzsimons remindedus that, given the necessary resort to closed proceedings, we were the Appellant’s “eyesand ears” and must examine the closed material with great care to test whether a tenableground for withholding the information was shown. We acknowledge that responsibilityand have done our best to live up to it.

We have also had careful regard to the applicable legal framework. In relation to s23(l),Mr Fitzsimons stressed three points in particular. First, the Tribunal must be satisfied thatthe information relates to an existing security body within s23(3). Second, although the “relates to” wording is wide its scope is not unlimited and there will come a point whenany connection between the information and the body is too remote (Commissioner ofPolice of the Metropolis and ICO v Rosenbaum 2021 UKUT 5AAC, para 35). Third, a“blanket approach” to s23(l) is to be avoided: “regard should be had to whether or notinformation can be disaggregated from the exempt information so as to render it non-exempt and still be provided in an intelligible form” (Rosenbaum, para 35).

In relation to s24(l), Mr Fitzsimons reminded us (on the subject of “national security”) of the familiar authority of Home Dept v Rehman [2001] UKHL 47,para 14. On the public interest balancing test he emphasised the key considerations bearing on the public interest. In particular, he submitted, these were the extent of the engagement of s24(l) (specifically whether it applies to all the disputed information) and the degree of harm against which protection was needed.

We have had Mr Fitzsimons’s measured arguments very much in mind. Nonetheless,having regard to the closed material, we have concluded that the alternative exemptionsrelied upon were validly cited and that the Commissioner’s decision entailed no error orlaw or inappropriate exercise of discretion.

Accordingly the appeal must be dismissed.