Key Facts
- •NGO Monitor appealed the Information Commissioner's decision upholding the Foreign, Commonwealth & Development Office's (FCDO) refusal to disclose the names of subcontractors receiving funding for a Norwegian Refugee Council program in occupied Palestinian territory.
- •The request sought details and funding amounts for the Information Counselling and Legal Assistance (ICLA) program (2018-2020).
- •FCDO initially relied on sections 27(1)(c) and (d) and section 38(1)(a) of the Freedom of Information Act 2000 (FOIA), but later withdrew reliance on section 38.
- •The appeal challenged the reliability of information provided by the FCDO and the accuracy of its claims regarding Israeli disclosure law.
- •The Tribunal heard closed evidence from the Deputy Consul General at the British Consulate General Jerusalem.
Legal Principles
FOIA exemptions are qualified unless they are absolute exemptions; the public interest must be balanced.
FOIA sections 2(2)(a) and (b)
For prejudice-based exemptions, a causal link between disclosure and prejudice must be shown; prejudice must be 'real, actual, or of substance'; the likelihood of prejudice needs to be assessed.
Hogan v Information Commissioner [2011] 1 Info LR 588 and Department for Work and Pensions v Information Commissioner [2017] 1 WLR 1
In international relations exemptions, appropriate weight should be given to executive branch evidence; however, this does not mean unquestioning acceptance.
All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner and Ministry of Defence [2011] UKUT 153, FCO v Information Commissioner and Plowden [2013] UKUT 275, and Department for Business and Trade v Information Commissioner and Brendan Montague [2023] EWCA 1378
The Tribunal can review findings of fact and make its own decision on an appeal under section 58 of FOIA.
FOIA section 58
Outcomes
Appeal allowed in part.
FCDO was entitled to withhold information under sections 27(1)(a), 27(1)(c), and 27(1)(d) FOIA because the public interest in maintaining the exemptions outweighed the public interest in disclosure. The potential prejudice to UK relations with Israel and the Palestinian Authority, and to the UK's interests abroad, was deemed substantial and likely to occur.
FCDO's reliance on section 38 FOIA was rejected.
FCDO withdrew its reliance on this exemption.