Home Office v Information Commissioner & Anor (Final Decision)

Mr Cobain’s witness statement dated 6 December 2014 covers three main areas. First, he points out, by reference to various news reports, that there have been a number of cases in which the grounds for deprivation of citizenship are already in the public domain. These include at least one case – that of the Russian spy, Anna Chapman – where the terms of the Home Office’s own public statement led irresistibly to the conclusion that the order must have been made on national security grounds. Second, he reminds me that it is well documented that, outside of the UK, terrorist suspects have been the victims of serious unlawful activity, including torture. Third, he refers to the serious public concerns that have been expressed – e.g. most notably by the Rt Hon David Davis MP – as to the way in which the power to make deprivation orders is being used in respect of terrorist suspects and the consequences (allegedly fatal in some instances) for those whose citizenship is revoked while they are abroad.

Mr Cobain’s legal submissions on the section 50(4) steps discretion issue start with the proposition that the purpose of FOIA is to provide for disclosure of information and that a presumption of disclosure is “built in” to the Act. Consistently with this starting point, FOIA does not prohibit public authorities from disclosing requested information – it simply defines certain classes of information which a public authority may lawfully choose to withhold. As section 50(4) vests the Tribunal with a statutory discretion, that discretion must be exercised so as to promote the underlying objects of FOIA. Furthermore, given the policy and purpose underpinning the Act, the steps discretion should not be approached from a neutral standpoint, with no predisposition for or against disclosure. Rather, the presumption is that disclosure should be made, and it is for the resisting public authority to demonstrate why a “no steps” order is appropriate on the particular facts of the case.

Mr Cobain acknowledges that Parliament cannot have intended that a public authority should be required by virtue of section 50(4) to do something which, by the time it falls to be done, is unlawful or impossible (a paradigm case being Information Commissioner v HMRC and Gaskell [2011] UKUT 296 (AAC); [2011] 2 Info LR). However, if disclosure is both legally and practicably feasible then a particularly strong case will need to be mounted to justify a “no steps” order, bearing in mind the purpose of FOIA. In short, the public authority’s right to withhold information cannot be automatically prioritised over the requester’s right to receive information.

In this context the Information Commissioner has suggested a number of generic considerations which apply to the exercise of the steps discretion under section 50(4) in any given case. These include the submission that the fact that an absolute exemption such as section 23 is in play automatically adds weight to the argument that a “no steps” is appropriate (see paragraph 18j below). Mr Cobain resists that suggestion for three reasons. First, he says section 23 simply permits the public authority to withhold information that it could lawfully disclose; in contrast sections 40(2), 41 and 44 reflect legal provisions extraneous to FOIA that render disclosure unlawful. Second, the purpose of section 23 is to ensure that the exclusion of security bodies from disclosure duties should not be circumvented by allowing information relating to them to be obtained from some other public authority which falls within FOIA. Third, the fact that section 23 is drafted in both absolute and wide terms does not mean that the same approach should be carried across to a situation where a requester has established his entitlement to the disputed information (y) in circumstances where he may be able incidentally to infer facts which could have been withheld under section 23 (x) if his request is granted.

Mr Cobain’s core submission is that the burden is on the Home Office to show that a disclosure order would undermine the protection given to the security bodies under section 23 to such an extent that his right to receive non-exempt information should be overridden. In that context he argues that Home Office case is weakened by five particular factors. First, this is not a Gaskell lookalike case where disclosure is unlawful or impossible. Second, the involvement of the security bodies in the process leading to CT/NS deprivation orders is already a matter of public knowledge, yet there is no way of knowing whether the Home Secretary always makes an order when the relevant agencies recommend one or, alternatively, never makes an order unless they so recommend. Disclosure would therefore lead only to a marginal increase in public knowledge about the security agencies and would not undermine section 23. Third, as Mr Cobain explained in his witness statement, several individual cases are already in the public domain. Fourth, if section 23 was so important, the Home Office would have relied on that exemption from the outset. Fifth, and again as Mr Cobain had set out in his witness statement, “there are compelling public interest arguments in favour of providing Mr Cobain with the non-exempt information”.

The Information Commissioner submits that the steps discretion under section 50(4) of FOIA must be exercised in accordance with public law principles. As I suggested in the interim decision, the Commissioner also accepts that the public authority’s right to withhold exempt information does not automatically ‘trump’ its duty to communicate non-exempt information. It follows that there may be cases in which disclosure of non-exempt information should be ordered, even where that would involve revealing exempt information, and that the exercise of the steps discretion will always be context- and fact-specific (see interim decision at [56]).

The Commissioner’s written submission helpfully sets out a non-exhaustive list of ten relevant considerations to be borne in mind when considering the exercise of the section 50(4) steps discretion in any case that it arises. His argument is that these point to “a balancing exercise which, though different to the analyses of prejudice and the public interest under FOIA, involves a similar exercise in weighing up the comparative benefits and detriments which are likely to result from disclosure in an ‘x + y = z’ case” (written submissions dated 19 December 2014 at paragraph 11). These general considerations, as enumerated by the Commissioner, are as follows:

Turning to the particular circumstances of this appeal, the Commissioner argues that the present case is an exceptional one in which the appropriate exercise of the section 50(4) discretion is to order that no steps be taken. In particular, he argues that this is so for the following six reasons (written submissions dated 19 December 2014 at paragraph 13):

The Commissioner accordingly considers that the case for withholding the exempt information is on balance stronger than the case for disclosing the non-exempt information. He therefore invites the Upper Tribunal in this case to exercise the section 50(4) discretion so as to order that no steps be taken by the Home Office. The result, of course, would be that the Home Office could withhold both the exempt and the non-exempt information.

The Home Office’s argument is that the Upper Tribunal should make a “no steps” order under section 50(4) of FOIA. It opposes the disclosure of the number represented by x on the basis that it is subject to an absolute exemption under section 23. Furthermore, the scheme of the Act reflects the policy intention that any and all such information should be protected from disclosure. A direction to the effect that the non-exempt information y should be disclosed would have the consequence of ordering disclosure of x, which would run contrary to the will of Parliament and would be “nonsensical, self-defeating and, therefore, unjust”. The Home Office furthermore adopts the Information Commissioner’s submissions on the nature and extent of the steps discretion and the appropriate manner of its exercise in this case.

The Home Office (HO) further submits as follows (written submissions dated 22 December 2014):

“6.

HO does not make this argument on the basis that disclosure of the ‘x’ figure would cause significant damage to the public interest. Equally, HO agrees with C [Mr Cobain] that ‘disclosure would lead only to a very marginal increase in public knowledge about the Security Service’ (submissions dated 25/07/14, para.17(2)-(3)).

7.

The public interest considerations are this finely balanced. However, HO submits that the UT’s decision should not turn on a public interest balancing exercise which would effectively convert FOIA, s.23 into a qualified exemption in the context of this case. Rather, it is submitted that the UT should seek to respect and give effect to the clear Parliamentary intention underlying both the institutional exclusion of the security bodies from the FOIA regime and the absolute exemption in FOIA, s.23.”

For completeness I should add that while the Home Office takes issue with parts of Mr Cobain’s witness statement, its principal response is that the witness statement’s contents do not take the matter any further forward and accordingly there is no need for cross-examination or for evidence in reply to be adduced.

I have not found this an easy appeal to decide. The arguments are in some respects finely balanced and the case has been ably argued on all sides. However, my conclusion is that this is an exceptional case such that a “no steps” order is appropriate under section 50(4). My reasons are as follows.

First, I agree that as a general principle the “default setting” in FOIA, as the Information Tribunal once put it, “is in favour of disclosure: information held by public authorities must be disclosed on request unless the Act permits it to be withheld”, (Guardian Newspapers Ltd and Brooke v ICO and BBC (EA/2006/0011 & 0013) at [82]). Given that the purpose of FOIA is the release of information, as a matter of principle the Act should be construed in as liberal a manner as possible (a principle which I recently described as “the golden thread which runs through the FOIA case law”: University and Colleges Admissions Service v The Information Commissioner and The Lord Lucas [2014] UKUT 0557 (AAC) at [39]). Conversely, it follows that a “no steps” order under section 50(4) will only be appropriate in exceptional cases (as recognised in Gaskell). To that extent I agree with Mr Cobain that the steps discretion should not be approached from a neutral standpoint, with no predisposition for or against disclosure; rather, the presumption is for disclosure. It follows that it is for the resisting public authority to demonstrate why a “no steps” order is appropriate on the particular facts of the case.

Second, I agree with the Information Commissioner’s submission – and there is understandably no dissent from this proposition – that the steps discretion under section 50(4) of FOIA must also be exercised in accordance with public law principles. It follows that steps which would involve the law being broken (as would have been the case in Gaskell) must not be ordered. However, for the reasons given in my interim decision (at [47]-[48]), the category of exceptional cases is not limited to those where disclosure is rendered unlawful or impossible. Furthermore, the steps discretion must be exercised rationally and so all relevant considerations must be taken into account and irrelevant ones excluded.

Third, in undertaking that process, the Commissioner’s ten generic and non-exhaustive considerations (see paragraph 18 above) act as a useful checklist. Those considerations will not necessarily each apply in every case, but the list operates as a useful guide. I did not understand Mr Cobain to take issue with those considerations, with the sole exception of paragraph 18j. He resists the suggestion that the fact section 23 is in play automatically adds weight to the argument that a “no steps” is appropriate. However, the Commissioner’s point is not confined to section 23. The Commissioner’s primary argument is that in the context of any absolute exemption it is relevant to consider what Parliament intended by creating that particular absolute exemption. This stands in contradistinction to the situation where x and y are both subject to qualified exemptions, in which event it will be relevant to consider the respective operation of the public interest balancing test in relation to each qualified exemption (see paragraph 18i above). In my view both the absolute and broad terms of section 23 are highly relevant, as is its place in the overall scheme of the Act. As Lord Hope observed in Common Services Agency v Scottish information Commissioner [2008] UKHL 47, “while the entitlement to information is expressed initially in the broadest terms that are imaginable, it is qualified in respects that are equally significant and to which appropriate weight must also be given. The scope and nature of the various exemptions plays a key role within the Act's complex analytical framework” (at [4]).

Thus in the context of the present appeal, section 23 provides that “Information held by a public authority is exempt information if it ... relates to” any of the security bodies specified in section 23(3). This is, of course, an absolute exemption (FOIA, section 2(3)(b)). It is significant that there is a separate qualified exemption in section 24 where non-disclosure of disputed information is “required for the purpose of safeguarding national security”. As the First-tier Tribunal explained in Commissioner of Police of the Metropolis v Information Commissioner (EA/2010/0008):

“15.

Sections 23 and 24 are closely linked provisions. Not surprisingly, s.24 applies only where s.23 does not. Whereas s.24 protects from disclosure, subject to the weighing of conflicting public interests, any information outside s.23 which should be withheld in the interests of national security, s.23 provides absolute protection to information coming from or through the specified security bodies or which, “relates to” any of those bodies. Significantly for this appeal, that very broad class of information plainly embraces, not just the content of information handled by a specified body but the fact that it handled it. It is, moreover, an exemption which applies without proof of prejudice. Parliament decided that the exclusionary principle was so fundamental, when considering information touching the specified bodies, that even perfectly harmless disclosure would only be made on the initiative or with the consent of the body concerned.”

Fourth, and crucially, the issue is how these various considerations play out in the context of this particular case. As noted above, it is for the Home Office to show that, exceptionally, a “no steps” order is appropriate in the exercise of the discretion under section 50(4). I agree, for the reasons above, with the Information Commissioner that the very fact that section 23 is engaged is highly material (paragraph 19a-19c), not least because, as he remarks, “of all the exemptions under FOIA, s.23 affords the widest protection” (paragraph 19b). In addition, the First-tier Tribunal found as a fact that it was “clear to us on the evidence in this case that the information requested on national security cases relates to the Security Service” (at [37]; see paragraph 19d). Undoubtedly some relevant material is already in the public domain. Indeed, as the Home Office acknowledged, the Home Secretary has since made a speech on 24 November 2014 in which she declared that “Since May 2010 I have revoked the British citizenship of twenty-seven people because their activities were not conducive to the public good, the overwhelming majority because of terrorist activities” (see www.gov.uk/government/speeches/home-secretary-theresa-may-on-counter-terrorism; emphasis added). However, as the Information Commissioner argues, “the discretionary or unavoidable disclosure of some information on the facts of some cases does not remove the justification for withholding similar information in other cases” (paragraph 19e).

Finally, while there is undoubtedly a very significant public interest in the matters to which Mr Cobain refers, the same simply cannot be said about the particular disputed information which he seeks. The fact of the matter is that Mr Cobain already knows that x is a figure that falls somewhere between 0 and 13. But as the Information Commissioner argues, the incremental benefit of knowing the precise breakdown is much less weighty (paragraph 19f). The addition to the sum of human knowledge about the security agencies would be marginal. Indeed, the Home Office does not suggest that release of the actual figure would cause significant damage to the public interest. Further, I accept that I should be wary of turning section 23 into a qualified exemption.

These are my primary reasons for preferring the analysis of the Information Commissioner and the Home Office to that of Mr Cobain. There is one final matter I should perhaps deal with in the light of Mr Cobain’s arguments at paragraph 16 above. This is the suggestion that if the section 23 exemption was so important, then the Home Office would have relied on that provision from the outset. I disagree for a number of reasons. It is unclear at what civil service grade the initial Home Office decision was taken to rely on the personal data exemption, and there may have been tactical reasons why that route was adopted. In any event a public authority is not estopped from seeking to raise a relevant exemption at a later stage, subject to the principles expounded in Birkett v The Department for the Environment, Food and Rural Affairs [2011] EWCA Civ 1606.

The present case appears to be the first occasion in the case law on which this particular problem has arisen. FOIA itself makes no express provision for the situation where disclosure of non-exempt information will necessarily result in the disclosure of exempt information. It might be argued that if Parliament had intended that public authorities should not be required to disclose non-exempt information in such a scenario then it could have included a further exemption to apply in such circumstances. On the other hand, it may be that this particular type of situation was simply never anticipated, but that section 50(4) conveniently provides sufficient flexibility in the Commissioner’s toolkit to deal with such exceptional cases.

The fact that this is the first time the issue has arisen may reflect the fact that many of the exemptions in FOIA are prejudice-based, i.e. based on the effects of disclosure, rather than class-based, i.e. dependent on the nature or category of the information requested. If disclosure of requested information (A) will necessarily cause the disclosure of other information (B), and information B in turn is subject to a prejudice-based exemption, and so one that relies on the risk of prejudice as a result of disclosure, then it is arguable that information A will inevitably also engage that exemption. If that is right, then the conundrum which has been thrown up by the present case will not occur in connection with a prejudice-based exemption.

That said it would appear that there are a number of other class-based exemptions in FOIA where, in principle, the same predicament could arise. These include sections 30 (investigations and proceedings conducted by public authorities), 35 (formulation of government policy), 41 (information provided in confidence) and 42 (legal professional privilege). This list is not exhaustive. However, the possibility that further x + y = z cases may arise is one reason why I have set out above the parties’ submissions and my findings in this case as to the proper application of the steps discretion in such detail.

For completeness I should correct, or at least clarify, the description of appeal routes as set out in the interim decision (at [8]). The default position is that a person’s appeal against a deprivation order is heard by the First-tier Tribunal (Immigration and Asylum Chamber). However, if the Home Secretary certifies that her decision has been in part taken on the basis of information that, in her opinion, should not be made public for certain reasons, then the appeal lies to the Special Immigration Appeals Commission (SIAC) – see section 40A of the British Nationality Act 1981 as amended.

I conclude that the Home Office’s appeal is allowed. I confirm my interim decision. I also exercise the steps discretion in section 50(4) of FOIA so as to order that no steps be taken by the Home Office.

The First-tier Tribunal had made a substituted decision notice in the terms as set out at paragraph 4 above, requiring the Home Office to disclose the non-exempt information within 35 days. Now that the Home Office’s further appeal has been allowed, the question arises as to the appropriate form of the Upper Tribunal’s decision. This raises a further complication on which I have not had submissions from the parties, but I do not think that the disposal of the appeal should be subject to any further delay.

The complication is that in Information Commissioner v Bell [2014] UKUT 0106 (AAC) Judge Jacobs held that in a case where the First-tier Tribunal finds that the Information Commissioner’s Decision Notice is not in accordance with the law, and that the Commissioner should have given a Decision Notice in different terms, then the correct approach for the First-tier Tribunal is not to substitute a new Decision Notice. Rather, the First-tier Tribunal decision should identify the respects in which the Decision Notice is incorrect. Judge Jacobs expressed the view that the use of the disjunctive in section 58 of FOIA (“the Tribunal shall allow the appeal or substitute such other notice...”) was intentional and not a drafting error (Bell at [20]). He further held that the reference to substituting such other notice reflected the possibility that the First-tier Tribunal might decide that the Commissioner should have issued a form of notice other than a Decision Notice (Bell at [26]).

Judge Jacobs concluded his analysis of this point in Bell as follows:

“Implications for the form of First-tier Tribunal decisions

29.

I am aware that different judges in the First-tier Tribunal express their decisions differently. Some merely say that the appeal is allowed and set out why. On my analysis, that is the correct form of decision for most cases. Other judges say that the appeal is allowed and exercise the power to set out a substituted version of the decision notice. On my analysis, that is not the correct form of decision for most cases. That does not mean that decisions expressed in that way are wrong in law. The test of error is a matter of substance, not form. It has only been necessary to undertake this detailed analysis because of the confused way in which the tribunal dealt with the appeal in this case.”

The decision in Bell is, with respect, undoubtedly correct on its facts as the First-tier Tribunal had erroneously purported to remit the case to the Commissioner for reconsideration without having set aside the Decision Notice. However, I am not sure that I would agree with all aspects of Judge Jacobs’s reasoning on the question as to the proper form of First-tier Tribunal decisions when allowing an appeal. For example, it may be arguable that the principles developed by the Tribunal of three Social Security Commissioners in R(IS) 2/08 might result in a different, more pragmatic and less cumbersome approach.

In this context I note the analysis (although critique might be a better word) of the Upper Tribunal’s decision in Bell by another First-tier Tribunal in Clucas v Information Commissioner (EA/2014/0006), a decision which does not itself appear to have been appealed to the Upper Tribunal. If there were to be a prize awarded for the decision of any first instance court or tribunal which loyally follows the decision of an appellate court or tribunal whilst simultaneously making it perfectly clear it thinks that binding decision is fundamentally misguided and wrong, then Clucas would be a run-away odds-on frontrunner for the prize. Bookmakers would simply have stopped taking bets. In its concluding comments (at [66]), the Tribunal in Clucas expressed the hope that the question of the scope of the Tribunal’s power to remit would be reconsidered at Upper Tribunal level, with the advantage of submissions on both sides of the question.

Unfortunately, this is not that case. Be that as it may, Judge Jacobs plainly contemplated in any event (Bell at [29]) that there may be cases in which a First-tier Tribunal allowing an appeal should set out a substituted version of the Decision Notice, rather than simply identifying the error in the Commissioner’s original Decision Notice. I am satisfied that the present appeal is just such a case. To ensure absolute clarity this is a case in which, when exercising the power to re-make the decision of the First-tier Tribunal, I should substitute a new Decision Notice in the terms set out at the head of this final decision.