Kadhim Shubber v The Information Commissioner & Anor
[2024] UKFTT 1054 (GRC)
George Greenwood v Information Commissioner & Anor
18 September 2024
[2024] UKFTT 834 (GRC)
First-tier Tribunal
Someone wanted to know how much the SFO spent investigating a company. The SFO refused, saying it could help criminals. A judge ruled the public's right to know how much money was spent on a failed 10-year investigation outweighed the risk to the SFO, so the SFO must now release the cost.
Key Facts
- •George Greenwood appealed a decision by the Information Commissioner upholding the Serious Fraud Office's (SFO) refusal to disclose the total cost of its investigation into Eurasian Natural Resources Corporation Ltd (ENRC).
- •The SFO relied on section 31 FOIA (law enforcement) to withhold the information, arguing disclosure would prejudice crime prevention and detection.
- •The appeal was decided without a hearing.
- •The Appellant argued there was a strong public interest in disclosure given the 10-year investigation's unsuccessful outcome and subsequent criticism of the SFO.
- •The SFO also relied on sections 21 (information accessible by other means) and 22 (information intended for future publication) regarding costs of related civil proceedings.
Legal Principles
Section 31 FOIA (law enforcement) is a qualified exemption; information should only be withheld if the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
FOIA
The prejudice test for section 31 involves identifying applicable interests, considering the nature and likelihood of prejudice, and establishing a causal link between disclosure and prejudice.
Hogan v Information Commissioner [2011] 1 Info LR 588; Department for Work and Pensions v Information Commissioner [2017] 1 WLR 1
Section 21 FOIA (information accessible by other means) requires information to be reasonably accessible to the applicant.
FOIA
Section 22 FOIA (information intended for future publication) requires the information to be held with a view to publication and that withholding until publication is reasonable.
FOIA
Outcomes
The appeal was allowed.
The Tribunal found that the public interest in disclosing the total cost of the ENRC investigation, considering its length, lack of prosecution, and subsequent criticism of the SFO, outweighed the risk of prejudice to the SFO's ability to investigate and prosecute economic crime. The Tribunal also found that sections 21 and 22 FOIA were not engaged.
The SFO was ordered to disclose the total cost of the ENRC investigation within 42 days.
The Tribunal determined that the SFO's concerns about the ‘mosaic effect’ (cumulative disclosures building a picture of SFO operations) did not outweigh the strong public interest in this specific case. The risk of prejudice was deemed to be 'likely' but not 'would' occur.