Garett Hargan v The Information Commissioner

The material points of the Appellant’s grounds of appeal set out his views that (in summary):

Similar to our earlier comments in respect of the erroneous terminology used in the Decision Notice, we should also point out that whilst the Appellant’s grounds of appeal referred to the Authority withholding the Requested Information, the Authority did not confirm or deny whether it holds the Requested Information.

The powers of the Tribunal in determining this appeal are set out in section 58, as follows:

“(1)

If on an appeal under section 57 the Tribunal considers—

(a)

that the notice against which the appeal is brought is not in accordance with the law, or

(b)

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

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.

(2)

On such an appeal, the Tribunal may Review any finding of fact on which the notice in question was based.”.

In summary, therefore, the Tribunal’s remit for the purposes of this appeal was to consider whether the Decision Notice was in accordance with the law. In reaching its decision, the Tribunal may review any findings of fact on which the Decision Notice was based and the Tribunal may come to a different decision regarding those facts. Essentially, the Tribunal is empowered to undertake a ‘full merits review’ of the appeal before it (so far as the Decision Notice is concerned).

The parties consented to the appeal being determined by the Tribunal without an oral hearing.

The Tribunal considered that the appeal was suitable for determination on the papers in accordance with Rule 32 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 and was satisfied that it was fair and just to conduct the appeal in this way.

The Tribunal read and took account of an open bundle of evidence and pleadings.

All of the contents of the bundle, including all the submissions of the parties, were read and taken into account, even if not directly referred to in this decision.

Section 1(1) provides individuals with a general right of access to information held by public authorities. It provides:

“Any person making a request for information to a public authority is entitled—

(a)

to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)

if that is the case, to have that information communicated to him.”.

In essence, under section 1(1), a person who has requested information from a public authority is entitled to be informed in writing whether it holds that information. If the public authority does hold the requested information, that person is entitled to have that information communicated to them. However, these entitlements are subject to the other provisions of FOIA, including some exemptions and qualifications which may apply even if the requested information is held by the public authority. Section 1(2) provides:

“Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14.”.

It is therefore important to note that section 1(1) does not provide an unconditional right of access to any information which a public authority does hold, nor an unconditional right even to be told if the information is held by the public authority. The rights contained in that section are subject to certain other provisions of FOIA, including section 2.

Section 2(1) addresses potential exemptions from to the Duty to Inform. That section provides:

“Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either—

(a)

the provision confers absolute exemption, or

(b)

in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information,

section 1(1)(a) does not apply.”.

Accordingly, where there is an applicable exemption in Part II of FOIA then it negates the Duty to Inform. This means that the public authority is permitted to neither confirm nor deny that it holds the requested information.

Pursuant to the provisions of section 2(1), some of the exemptions to the Duty to Inform set out in Part II of FOIA are absolute and some are subject to the Public Interest Test. Section 2(3) explicitly lists which of those exemptions are absolute (and, pursuant to that section, no other exemptions are absolute). For the purposes of the appeal, the relevant exemptions (as referred to in the Decision Notice) are section 23(5) and section 24(2). Section 23 is included in that list. Section 24 is not included in that list.

Accordingly, in summary:

Section 23(5) provides:

“The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) which was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).”.

The bodies specified in section 23(3) include:

“(a)

the Security Service,

(b)

the Secret Intelligence Service,

(c)

the Government Communications Headquarters,

(d)

the special forces,…

(k)

the National Criminal Intelligence Service,…

(m)

the Serious Organised Crime Agency.”.

Section 24(2) provides:

“The duty to confirm or deny does not arise if, or to the extent that, exemption from section 1(1)(a) is required for the purpose of safeguarding national security.”.

In accordance with the remit of the Tribunal to which we have referred, the fundamental issues which we needed to determine in the appeal were whether the Commissioner was correct to conclude, in the Decision Notice, that the Authority could rely on section 23(5) and/or section 24(2) to neither confirm nor deny whether it holds the Requested Information.

That therefore means:

Before we turn to the above issues, we make some other relevant observations.

As we have noted, the Appellant’s grounds of appeal addressed matters relating to the public interest in disclosing the Requested Information and (for current purposes) it would be more accurate to refer to the public interest in confirming or denying whether the Authority holds the Requested Information. However, as we have also noted, the Public Interest Test is only applicable in respect of section 24(2) and not section 23(5) (the latter being an absolute exemption to which the Public Interest Test does not apply). Accordingly, the Appellant’s arguments in respect of the public interest are only relevant if we determine that section 24(2) is engaged in respect of the Requested Information.

The bundle contained correspondence between the Authority and the Commissioner relating to the Commissioner’s investigation and aspects of that correspondence were redacted. We did not have a closed bundle showing unredacted versions of that correspondence, but we concluded that it was not necessary for us to see the unredacted correspondence for the reasons we refer to below.

We concluded that it was appropriate, with regard to the relevant issues we address below, to consider the Requested Information holistically (rather than separately considering each individual component of the Request).

It may be helpful to reiterate the provisions of section 23(5). That section provides an exemption from confirming or denying whether information is held if doing so would involve the disclosure of any information which was directly or indirectly supplied by, or relates to, certain specified bodies. The bodies so specified (in section 23(3)) include the Security Service, the Secret Intelligence Service, the Government Communications Headquarters, the special forces and the Serious Organised Crime Agency. For convenience, we refer below to the relevant bodies specified in section 23(3) as the ‘security bodies’ and any one of them a ‘security body’.

In order for some exemptions in FOIA to be engaged, there must be some prejudice to the matters referred to in the specific exemptions. These are known as ‘prejudice-based’ exemptions. Other exemptions apply only to a particular category or class of information, which are known as ‘class-based’ exemptions.

Section 23(5) is a class-based exemption. This means that (unlike the case with ‘prejudice-based’ exemptions) there is no need to establish any prejudice for it to be engaged. Section 23(5) will therefore be engaged if confirmation or denial that the Requested Information is held would have the result described in that section – namely, that it would involve the disclosure of any information which was directly or indirectly supplied by, or relates to, any of the security bodies.

The Authority stated during the Commissioner’s investigation that if the Requested Information was held by it, then it would be directly or indirectly supplied by one of the security bodies. The correspondence in the bundle did not itself reveal what the security body in question was, because of the redactions which were applied. However, the Decision Notice recorded that the Authority had confirmed that the Requested Information (if it was held) would likely to be directly supplied to it by the Government Communications Headquarters (which is listed in limb (c) of section 23(3)).

As we have noted, we considered that it was not necessary for us to see the unredacted version of that correspondence. In part, this was because it was evident from the redacted correspondence that one of the security bodies in section 23(3) was being referred to and in part because the Commissioner had (as noted in the preceding paragraph) referred to the relevant body in the Decision Notice. Further, it was also clear from the correspondence that the Authority had stated that the Requested Information, if it was held, would be supplied by a security body.

We find that this was sufficient to demonstrate that the Requested Information, if it was held by the Authority, would be directly or indirectly supplied by one of the security bodies.

The Appellant’s position, as we have noted, was that some information was already in the public domain. He referred to articles published in 2021 regarding the involvement of the Authority in certain project work. The Authority accepted that the articles contained official comments from it. However, the Authority’s comments within the articles only confirmed its involvement in the EU project Horizon 2020 and did not specify any countries which it was working with. Importantly, the Authority’s comments did not include any acknowledgement or denial that any of the Requested Information was held by it.

Case law has clearly established (Footnote: ³) that section 23(5) requires consideration of whether answering ‘yes’ or ‘no’ to whether the information requested is held engages any of the limbs of section 23 and that the purpose of section 23(5) is a “protective concept”, to stop interferences being drawn on the existence or types of information.

We find that it is clear that should the Authority have confirmed whether or not it holds the Requested Information, this would have meant saying ‘yes’ or ‘no’ with regard to whether it held information supplied by a security body - and consequently that this engaged section 23(5).

In respect of the Appellant’s arguments that relevant information was in the public domain, an important principle behind the exclusion of the Duty to Inform in section 23(5) is that a public authority can avoid giving any official confirmation (by way of either confirmation or denial) regarding any such publicly available information. Being able to neither confirm nor deny whether a public authority holds any given information relating to any security body can avoid inferences being drawn with regard to other information which may be in the public domain.

Case law has also clearly established (Footnote: ⁴) that the purpose of section 23 is to ensure that FOIA is not to be used to obtain information from or about the activities of the security bodies, such that even “perfectly harmless disclosure” should only be made on the initiative or with the consent of the security body in question.

There was no such consent or initiative of any security body in the current instance. Also, for the reasons we have referred to, we consider that the existence of the conflict in Gaza is not relevant to whether or not the exemption in section 23(5) is engaged.

As we have noted, given our conclusion that section 23(5) was engaged (and it being an absolute exemption), the Authority was entitled to refuse to confirm or deny whether it holds the Requested Information and we therefore do not need to go on to consider whether section 24(2) was engaged.

We would just observe, though, that section 23(5) and section 24(2) are to be considered independently on their own merits and they are not mutually exclusive. Whilst section 23(5) may be engaged on the basis that confirmation or denial would involve the disclosure of any information supplied by (or relating to) a security body, it is possible that confirmation or denial with regard to the same information may also undermine national security and therefore also engage section 24(2). As we have noted, the Commissioner concluded in the Decision Notice that both section 23(5) and section 24(2) were engaged. Although that is permissible legally, the scope of the exemption under section 23(5) is not to be construed or applied by reference to any other exemptions, including section 24(2). Consequently, we are able to conclude that section 23(5) is engaged – and therefore that the Authority was entitled to refuse to confirm or deny whether it holds the Requested Information - without needing to also address the application of section 24(2).

For all of the reasons we have given, we find that the Decision Notice was correct to conclude that the Authority could rely on section 23(5) to refuse to confirm or deny whether it holds the Requested Information.

We therefore dismiss the appeal.