Keane v IC & Ors

There is much still to be written about the history of Ireland since the late nineteenth century. Many events in this troubled era have taken place in the full glare of publicity. Other events have taken place in the shadows. One of the historian’s roles is to shine a light into those dark corners of history.

The National Archives (TNA, formerly the Public Record Office) at Kew houses files from various government departments that have been retained as having some historical interest (although by no means everything of significance has found its way to Kew: see Ian Cobain, The History Thieves: Secrets, Lies and the Shaping of a Modern Nation (September 2016, Portobello Books)). Some of the Kew files contain information about the use by the police and security services of paid informants in Irish republican organisations at a time when British rule extended to the whole island of Ireland.

How far should historians be able to access such files today, more than 100 years after the files were current? Should there effectively be open access? Or are there some details in those files which should still be withheld from researchers, a century on? If so, on what basis should that be? These are questions which have come before the First-tier Tribunal (Information Rights) in the General Regulatory Chamber on more than one occasion.

In Metropolitan Police v Information Commissioner [2008] UKIT EA 2008 0078 (“the Butterworth case”) a historian (Mr Butterworth) sought access to Special Branch files from the period from 1888 to 1912 dealing with its investigations into the activities of European anarchists. In a sense, the researcher wanted to inspect the official paperwork underpinning the type of police work depicted in Joseph Conrad’s The Secret Agent. The First-tier Tribunal issued what was, in effect, a consent judgment, ordering the Metropolitan Police to disclose the files in question. However, the Tribunal also directed that the names of any individuals referred to should be redacted before the files were released.

In Marriott v Information Commissioner [2011] UKFTT EA 2010 0183 another First-tier Tribunal concluded that Metropolitan Police records from the same era, including details of informants, and relating to the ‘Jack the Ripper’ murders, should not be disclosed. That Tribunal decided unanimously that the records fell within the scope of the qualified exemption in section 30(2) (information held for the purposes of an inquiry) of the Freedom of Information Act 2000 (FOIA). The Tribunal also held (but only by a majority) that the public interest in maintaining the exemption outweighed the public interest in disclosure. That decision was not appealed to the Upper Tribunal.

In the present case – Keane v Information Commissioner and Others [2015] UKFTT EA 2015 0013 GRC – a different First-tier Tribunal, again by a majority decision, decided that the details of paid informants referred to in Metropolitan Police records and involved in Irish secret societies in the period from 1890 to 1910 should not be disclosed. The files were accordingly broadly contemporaneous with those in both the Butterworth case and Marriott, albeit the context was different. Disclosure of the names of paid informants was resisted on the grounds of both national security (FOIA, section 24(1)) and health and safety (FOIA, section 38(1)).

If nothing else, these three first instance decisions demonstrate how finely balanced such decisions may be and how reasonable people (and especially reasonable judicial office-holders) may reasonably differ. In that context it is important to remember that an appeal to the Upper Tribunal is not a full merits review. The First-tier Tribunal, of course, must conduct a full merits review of the Information Commissioner’s decision notice. The Upper Tribunal’s role is confined to ascertaining whether the First-tier Tribunal’s decision involves a material error of law.

The practical issue raised by this appeal before the First-tier Tribunal was accordingly whether certain information in a National Archives file entitled Activities of named paid informants against Irish Secret Societies (TNA file ref HO 317/38) should be released under the Freedom of Information Act 2000. The file covers the period 1890-1910. The requested information in issue comprises the names of such paid informants.

The (rather narrow) legal issue arising on this appeal to the Upper Tribunal is whether the majority members of the First-tier Tribunal correctly carried out the public interest balancing test, having already decided that the qualified exemptions under sections 24(1) (national security) and 38(1) (health and safety) of FOIA were engaged.

Mr Keane is both an Irish historian and a historian of Ireland. As part of his research he visited Kew to consult the National Archives file referred to in paragraph 8 above. It was evident that a significant number of pages in that file relating to police informants had been removed. He made a request, treated as a request under the Freedom of Information Act 2000 (FOIA), to access the withheld information. He argued (in 2013) that “while there may have been good reason for doing so [i.e. redacting names] when the file was sent to the National Archives it does not appear to have any validity now. As the file ends in 1910 there seems no reason why any papers should be excluded 103 years later.”

The Home Office, the public authority which was in effect guardian of the file, declined to release the information requested, having taken the view that the information was exempt from disclosure by virtue of section 24(1) of FOIA, i.e. it was being withheld for the purposes of safeguarding national security. That decision was confirmed on internal review. Mr Keane then lodged a complaint with the Information Commissioner.

On 13 November 2014 the Information Commissioner issued a Decision Notice (FS50532586), which rejected the substance of Mr Keane’s complaint. In short, the Commissioner decided that the Home Office had been correct to find that the section 24(1) was engaged and had also correctly concluded that the public interest balancing test favoured maintaining the exemption. Mr Keane then appealed to the First-tier Tribunal. By the time the matter proceeded to hearing, the Home Office also sought to rely on the health and safety exemption in section 38(1) of FOIA. In addition, the Metropolitan Police Service (MPS), with its obvious interest both as the historical source of the file and a contemporary State agency using paid informants, was joined as a further respondent.

The First-tier Tribunal (“the Tribunal”) held an oral hearing on 17 June 2015. As well as receiving assorted documentary evidence, the Tribunal heard oral evidence from Mr Keane himself, from Ms Janet Millar (described as Senior Information Rights Consultant at the Home Office) and from “Officer A”, an Acting Detective Inspector in the MPS assigned to the Counter Terrorism Command, who has first-hand experience of dealing with informants (or Covert Human Intelligence Sources (CHIS), as they are known in the jargon of the Regulation of Investigatory Powers Act 2000 (RIPA)).

Mr Keane’s evidence was summarised by the Tribunal at paragraph [9] of its decision. His case was that neither the section 24(1) nor the section 38(1) exemption was engaged, given the age of the disputed information. He also pithily expressed the view that “it’s ridiculous to suggest that there would be retribution in 2015 for events in 1910”.

Ms Millar’s evidence was summarised by the Tribunal at paragraph [17]-[18]. Her evidence mainly related to the internal processes for reviewing sensitive information and was heard entirely in open.

Officer A’s evidence was heard both in open and in (a short) closed session (paragraphs [10]-[16]). His detailed and lengthy open witness statement argued that the issue was not simply whether a particular name should or should not be released. Rather, disclosure would have “far wider reaching implications for the Public Interest and safety of individuals.” In the conclusion to his open witness statement, Officer A contended that there were four reasons why the information should not be disclosed. First, the MPS was unable to identify with certainty which names in the file were true names and which were pseudonyms, and so the police could not conduct a risk management process for disclosure. Second, there was “an unquantifiable risk to the relatives of these informants”. Third, given the MPS’s inability to identify those concerned, the procedure in R (on the application of WV) v Crown Prosecution Service [2011] EWHC 2480 (Admin) could not be operated (i.e. giving those concerned the opportunity to object to disclosure). Fourth, it was argued that disclosure “will cause irrevocable damage to the MPS and Security Services’ ability to recruit and retain future informants”. As the case has unfolded, it is the second and last of these four reasons that has formed the basis of the Second and Third Respondents’ fundamental objections to disclosure.

By a majority, the Tribunal dismissed the appeal. In a lengthy decision, the majority essentially endorsed the position taken by the Commissioner. So the majority found both that section 24(1) was properly engaged and that the public interest balancing test favoured maintaining the exemption, i.e. withholding the information concerned. The majority decision was particularly influenced by two factors. The first was the State’s ability to recruit and retain informants (paragraphs [30]-[38]). The second was the potential risk of harm to the descendants of informants (paragraphs [39]-[56]). Putting these factors into the melting pot of the public interest balancing test, the majority decided that these factors outweighed the arguments in favour of disclosure (paragraphs [57]-[68]).

The contrast in the approach of the dissenting member of the First-tier Tribunal was stark. In his assessment, the Respondents’ arguments about the engagement of the claimed qualified exemptions failed “a very basic common sense test” (paragraph [69]). In summary, his view was that neither the section 24(1) exemption nor the section 38(1) exemption was engaged in the first place (paragraphs [69]-[70]). He did not in so many words address the public interest balancing test itself (and, given his conclusion on engagement, perhaps nor did he need to).

Mr Keane then applied for permission to appeal to the Upper Tribunal, in part on the ground that while the First-tier Tribunal had purported to apply a qualified exemption by way of the balancing test, in reality it had applied an absolute test. The First-tier Tribunal Judge gave permission to appeal.

All parties have made written submissions on the appeal. I also held an oral hearing of the appeal at the Rolls Building in London on 29 September 2016. The Appellant attended and was represented by Mr Brian Leahy and Mr Cathal Malone, both of the Irish Bar. The First Respondent was represented by Mr Rupert Paines of Counsel. The Second Respondent was represented by Mr Andrew Sharland of Counsel. The Third Respondent was represented by Mr Christopher Knight of Counsel. Of that stellar cast only Mr Leahy and Mr Knight had appeared before the First-tier Tribunal. I am grateful to all counsel (and those supporting them) for their well-focussed submissions and invaluable assistance, both before and at the hearing.

Section 23 of FOIA provides for information to be exempt information “if it was directly or indirectly supplied to the public authority by, or relates to, any one of a number of named bodies” (e.g. the Security Service). Section 23, of course, is an absolute exemption (see section 2(3)) and was not relied upon in this case. However, by virtue of section 24(1), “information which does not fall within section 23(1) is exempt information if exemption from section 1(1)(b) is required for the purpose of safeguarding national security” (emphasis added). This is a qualified exemption, which necessarily “implies that there may be instances in which it will be in the public interest to disclose information, notwithstanding that the exemption is required for the purpose of safeguarding national security. Otherwise the exemption will be effectively metamorphosed into an absolute exemption” (see Baker v Information Commissioner[2007] UKIT EA 2006 0045 at paragraph [31]).

Section 38(1) of FOIA, also a qualified exemption, provides that information “is exempt information if its disclosure under this Act would, or would be likely to — (a) endanger the physical or mental health of any individual, or (b) endanger the safety of any individual.”

Mr Keane’s application to the First-tier Tribunal for permission to appeal to the Upper Tribunal cited two grounds. The first ground was the contention that the Tribunal had erred in law in its application of the public interest balancing test, and in effect had applied an absolute exemption. The second ground concerned the Tribunal’s approach to the evidence of Officer A. The First-tier Tribunal Judge gave permission on the first ground but not the second, commenting en passant that “although it is a matter for Mr Keane rather oddly he does not adopt any of the arguments set out by the minority in the FTT’s judgement but seeks to present quite different arguments.”

In their skeleton arguments for the Upper Tribunal all three Respondents argued that the First-tier Tribunal’s ruling was a limited grant of permission to appeal. Accordingly, they argued, the appeal before the Upper Tribunal was confined to the sole ground on which permission had been given, i.e. that relating to the application of the public interest balancing test.

At the outset of the oral hearing, Mr Leahy also accepted that the only ground of appeal related to the public interest balancing test, and so it was not open to him to revisit the Tribunal’s finding that the section 24(1) and 38(1) exemptions were both engaged. He suggested, however, if somewhat gnomically, that consideration of the public interest balancing test might “stretch into” the issue of engagement as it was difficult to disentangle the two issues.

Normally I would accept any concession by counsel with alacrity and move swiftly on. However, in the particular circumstances of this case I consider that some further comment is in order. In my view the First-tier Tribunal’s permission ruling is ambiguous and can be read in either of two ways. The first (the reading adopted by all the Respondents, and indeed acceded to by the Appellant) is that the Tribunal gave limited permission to appeal only on ground one, having expressly rejected ground two. An alternative reading – and one to which I incline – is that the Tribunal gave general permission to appeal on the basis of ground one and any other material issues raised later in the course of the appeal proceedings. Certainly as a matter of good judicial practice if a tribunal is giving limited permission to appeal one would expect it to say so in as many words for the avoidance of any doubt, e.g. “Limited permission to appeal is granted” rather than (as here) “Permission to appeal is therefore granted”.

My preferred reading is supported by the contemporaneous documentation associated with the grant of permission to appeal. In that context I note that rule 43(5) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI 2009/1976) provides that the Tribunal “may give permission to appeal on limited grounds, but must comply with paragraph (4) in relation to any grounds on which it has refused permission”. Rule 43(4) in turn requires the Tribunal to give an applicant reasons for any refusal of permission (rule 43(4)(a)) as well as notification of (A) the right to apply to the Upper Tribunal for permission to appeal, (B) the time limit, and (C) the method to be used for any such application (rule 43(4)(b)).

In the present case the Tribunal arguably just about complied with rule 43(4)(a) as regards its rejection of ground two (“I do not think that [the Appellant’s] comments on the Tribunal’s approach to Officer A’s evidence found a valid basis for seeking permission to appeal”).

However, looking at the file I can see no evidence that the Tribunal complied with rule 43(4)(b). The Tribunal office sent the Appellant a copy of the permission ruling with a standard form e-mail dated 17 September 2015 announcing that “Permission has been granted” (again, no mention of limited permission having been granted). There was no suggestion whatsoever that the Appellant could apply to the Upper Tribunal for permission to appeal on the refused ground (or indeed on any other ground). Nor, indeed, was there any direct statement as to the time limit for lodging an appeal, although a link was provided to the Upper Tribunal AAC website. The Tribunal’s comprehensive failure to comply with rule 43(4)(b) means that I find it very hard to accept that this was an effective grant of limited permission to appeal.

Whilst on the procedural aspects of the grant of permission to appeal, there was another problem which needs to be highlighted. On 4 November 2015 the Treasury Solicitor’s representative (presumably acting for the Home Office) emailed the Tribunal office to say that she understood the Appellant had been given permission to appeal (PTA) but she had not been sent a copy of the grant and so would be grateful to receive a copy. The Tribunal office’s reply was (remarkably) that “it is not the Tribunal’s policy to send PTA rulings to respondents in an appeal. If you wish to see a copy of the ruling you will need to contact the appellant”.

In truth, the Tribunal office’s response was perhaps not so much remarkable as extraordinary. Rule 43(3) states that the Tribunal, once it has considered an application for permission to appeal, “must send a record of its decision to the parties as soon as possible” (emphasis added; NB to the parties, not to the applicant). I recognise that there may not always be a complete ‘fit’ between a tribunal’s procedural rules and its internal operating instructions (or clerical ‘job-cards’). It may well be that as part of the General Regulatory Chamber’s policy of continuous improvement this problem has already been identified and dealt with. If not, I am sure that the Chamber President and his team will see that it is resolved forthwith.

I did not hear detailed argument from counsel on the issues identified in paragraphs 26-31 above and so will say no (or at least not much) more. In addition, Mr Leahy’s timely concession deprived Mr Knight of the opportunity to mount a head-on challenge to Upper Tribunal Judge Jacobs’s decision in DL-H v Devon Partnership NHS Trust [2010] UKUT 102 (AAC), where it was held (at paragraph 3) that an appeal to the Upper Tribunal is not limited to issues covered by the grant of permission. I am sorry to have to disappoint Mr Knight, who at the hearing was evidently (if very elegantly) spoiling for a jurisprudential fight on the issue. That may be an argument for another day.

I simply make this final observation on the concession made by Mr Leahy. I do not believe it has made any difference whatsoever to the outcome of the case. While I have serious reservations as to whether the majority of the Tribunal was entitled to find that the section 38(1) exemption was engaged (for reasons which I explain below, and as I hinted at during the hearing), I am more than satisfied that they were entitled to conclude that the section 24(1) exemption was engaged. Indeed, it has not seriously been suggested otherwise. Once at least one qualified exemption was engaged, it follows that the correct focus of this appeal in any event was on the Tribunal majority’s approach to the public interest balancing test. If Mr Keane is to get home on his appeal, he had to persuade me that the Tribunal got this (legally) wrong.

Mr Leahy and Mr Malone, for Mr Keane, recognised that both sections 24(1) and 38(1) of FOIA had the potential to raise very serious and weighty issues. However, they argued, it was important not to conflate the de minimis level of evidence needed to engage the relevant FOIA exemptions in the first place with the preponderance required to tip the balance of weighing the public interests against disclosure on the facts of the particular case. The Tribunal majority, they contended, had given into a ‘kneejerk’ reaction – having found the exemptions were engaged, the relevant considerations had not then been properly weighed in the public interest balancing test. In short, the Tribunal majority had transformed what were plainly qualified exemptions into absolute exemptions.

Developing this line of argument, Mr Malone drew attention to the structure of the Tribunal’s decision (see paragraph 17 above). He submitted that the only discussion by the Tribunal of the public interest balancing test was at paragraph [57] onwards. Yet he drew my attention in particular to paragraph [56], at the end of the section of the decision dealing with engagement issues:

“56.

This means that there is sufficient room for doubt about the safety of traceable descendants, no matter how small that may be. In view of this the majority sees no justification for imperilling their safety, however remote that possibility. In our view, in the absence of certainty it is far better to err on the side of caution than to give rise to such a risk through disclosure.”

Paragraph [56], Mr Malone sought to persuade me, was absolutely fatal to the majority decision. It was not simply that the Tribunal was asking Mr Keane to prove a negative, namely that there was no risk whatsoever to the safety of informants’ descendants – a guarantee which the Tribunal had recognised was impossible to give (see paragraph [50] of its reasons). Rather, or in addition, the last two sentences of paragraph [56] reeked of pre-judgement. Purportedly in the section of the Tribunal’s decision dealing with engagement, they were not really about engagement at all. Instead, they demonstrated that the majority had already arrived at a conclusion on the public interest balancing test before the scales had begun to be weighed (in paragraph [57] onwards). Thus the qualified exemption had been converted into an absolute exemption, as Mr Keane could never produce the required guarantee of safety for informants’ descendants. The Tribunal majority’s decision on the public interest balancing test, Mr Malone argued, had been made by that stage (i.e. by paragraph [56]). In effect, the die was cast when the Tribunal found that the relevant exemptions were both engaged. The heavy weight in favour of maintaining the exemptions had been unthinkingly assumed to be decisive, given the nature of the exemptions pleaded, and the balancing test had not been properly applied.

In support of that proposition, Mr Malone also criticised paragraph [67] of the majority’s decision, as failing to explain adequately how the Tribunal had weighed the competing public interest considerations. Moreover, it again showed that a nominally qualified exemption had been treated in terms as absolute in nature, as the Tribunal found that the risk to informants’ descendants “to whatever degree … must prevail” (emphasis added):

“67.

The Tribunal majority endorses the Commissioner's findings with regard to the public interest. We too acknowledge the importance of historic research and the Appellant's laudable efforts to cast light onto a once dim area of history. However, it is our view that the ability of the United Kingdom to maintain its national security and the safety of descendents [sic], who may be at risk of exposure to harm, to whatever degree, and the consequences this would have on current and future informants, must prevail.”

The three Respondents sung in harmony from the same hymn-sheet, albeit with slightly different shades of emphasis. I hope I can fairly summarise the thrust of their respective submissions as follows.

Mr Paines, for the Information Commissioner, submitted that once the Tribunal had found that sections 24(1) and 38(1) were engaged, it was entitled to assume that those factors would carry considerable weight in the public interest balancing test. It did not necessarily follow that a qualified exemption had been turned into an absolute one. He argued further that the high point of the Appellant’s case was Mr Malone’s attack on paragraph [56] of the Tribunal’s decision. This challenge, Mr Paines contended, was unpersuasive for four reasons. First, it simply made the point that section 38(1) carried significant weight. Second, even if the passage had been phrased in rather loose terms, it disclosed no error of law. Third, the section 38(1) exemption was only a supplementary line of analysis; the bulk of the Tribunal’s decision was devoted to the national security exemption. Fourth, and crucially, paragraph [56] had to be read in the context of the Tribunal’s decision as a whole.

Mr Sharland, for the Home Office, agreed with Mr Paines. In particular, he laid considerable emphasis on Mr Paines’s third point about paragraph [56] of the decision. Thus the primary focus of the Tribunal’s decision was on section 24(1) and the risks as regards the recruitment and retention of informants, now known as CHIS. Moreover, the Tribunal, which was the principal fact-finder, had accepted Officer A’s evidence as compelling (see paragraph [37]), and the Upper Tribunal could not go behind that factual finding now. He argued that the Tribunal’s decision showed that the public interest balancing test had been properly carried out and the exemptions had not been treated as absolute in nature.

Mr Knight, for the MPS, predictably agreed with both Mr Paines and Mr Sharland. He submitted there was nothing surprising or erroneous in the Tribunal’s reasoning that the risk of harm to national security was a very significant matter which would require compelling countervailing evidence for the public interest balancing test to tip in favour of disclosure. This was, said Mr Knight, citing that well-known jurist Basil Fawlty, no more than a statement of “the bleeding obvious”. The Tribunal, Mr Knight argued, had not fallen into the trap of saying “this is a national security case so the Government wins”. The Tribunal’s decision showed it had properly weighed the various factors in the public interest balancing test; the qualified exemptions had not transmogrified into absolute exemptions. As regards both sections 24(1) and 38(1), the majority had been entitled to conclude that a small risk of a big harm necessarily carried significant weight. For example, Mr Knight argued, if a tribunal got the balancing test wrong in another case on section 35 (formulation of government policy), the worst that could happen is that in future a civil servant might draft advice to ministers more cautiously and less frankly. If a tribunal got it wrong on section 24 – Mr Knight paused for dramatic effect – the risk was that people might die.