Lownie v Information Commissioner & Anor
[2024] UKUT 116 (AAC)
Dr Andrew Lownie v The Information Commissioner & Anor.
28 April 2023
[2023] UKFTT 397 (GRC)
First-tier Tribunal
A historian wanted secret spy files. The government said they were too secret to release, claiming special rules to keep them hidden. A judge agreed, saying the files were so secret that even telling *why* they're secret would be a problem. The appeal was rejected.
Key Facts
- •Dr Lownie, a historian, requested files FCO 158/15 and FCO 158/16 from the FCDO under the Freedom of Information Act 2000 (FOIA), relating to Guy Burgess and Donald Maclean.
- •The FCDO claimed exemptions under sections 23(1) and 24(1) of FOIA (national security exemptions), arguing alternatively for each file.
- •The Information Commissioner upheld the FCDO's decision.
- •Dr Lownie appealed, arguing the alternative exemption approach was unfair and unlawful.
- •The Upper Tribunal in Williams [2021] UKUT 248 (AAC) confirmed the legality of using alternative exemptions for national security.
- •A key issue was whether section 64 of FOIA disapplied the absolute nature of the section 23 exemption because the files were 'historical records in the Public Record Office'.
- •FCO 158/15 was briefly sent to the National Archives but returned to the FCDO before being formally accessioned.
- •The Tribunal found that FCO 158/15 was never formally 'in' the Public Record Office for the purposes of section 64 FOIA, and thus the section 23 exemption remained absolute.
Legal Principles
Section 23 of FOIA provides an exemption for information supplied by or relating to specified security bodies; it is usually absolute, but section 64 disapplies this for historical records in the Public Record Office.
Freedom of Information Act 2000
Section 24 of FOIA provides an exemption for information required for the purpose of national security; a public interest balancing test applies.
Freedom of Information Act 2000
The Tribunal has full merits appellate jurisdiction in FOIA cases, giving weight to the Commissioner's decision.
Information Commissioner v Malnick and Anor [2018] UKUT 72 (AAC)
A public authority can use sections 23 and 24 of FOIA alternatively to protect national security, even if it masks the actual exemption applied.
Foreign, Commonwealth and Development Office v Information Commissioner, Williams and others [2021] UKUT 248 (AAC)
Principles relating to the interpretation of Section 23, including its wide scope and the need to avoid circumvention of the exclusion of security bodies from FOIA.
Commissioner of the Police of the Metropolis v Information Commissioner & Rosenbaum [2021] UKUT 5 (AAC)
Principles relating to the interpretation of Section 24, including the broad interpretation of 'national security' and the high threshold for overriding a public authority's view.
Foreign, Commonwealth and Development Office v Information Commissioner, Williams and others [2021] UKUT 248 (AAC)
Outcomes
Appeal dismissed.
The information in both requested files is exempt from disclosure under either section 23(1) or section 24(1) of FOIA. FCO 158/15 was never formally in the National Archives, so section 23 remains absolute. The detailed reasoning for applying section 23 or 24 to the specific files is in the closed reasons.