Tribunal Upholds Decision on FOIA Exemptions in Ceri Gibbons v The Information Commissioner & Anor Case

Citation: [2024] UKFTT 35 (GRC)
Judgment on

Introduction

In the recent Tribunal decision of Ceri Gibbons v The Information Commissioner & Anor ([2024] UKFTT 35 (GRC)), the appellant, Mr. Ceri Gibbons, contested the Information Commissioner’s decision that upheld the Ministry of Defence’s (MOD) refusal to disclose certain information under the Freedom of Information Act 2000 (FOIA). The discussion centered around the FOIA exemptions, particularly regarding national security, defence, and international relations, as well as the public interest test.

Key Facts

Mr. Gibbons requested the disclosure of the Joint Service Publication (JSP) 900 under FOIA, which outlines the UK Defence Full Spectrum Targeting Policy. The MOD provided a redacted version, citing exemptions under sections 23, 26, and 40 of FOIA. The Information Commissioner’s decision, which is under appeal, supported the use of these exemptions, also referenced sections 24 and 27, albeit not requiring further action as the earlier exemptions were upheld.

During the tribunal hearing, evidence, including closed session testimony, was presented by both the appellant and a witness for the MOD, known as Witness MOD-A, to assess whether the exemptions were properly engaged and whether the public interest in maintaining the exemption outweighed the public interest in disclosure.

Several legal principles from FOIA were applied in this case:

  • Absolute Exemption (Section 23): This section exempts information directly or indirectly supplied by, or related to, security bodies. Based on principles from Commissioner of Police of the Metropolis v Information Commissioner and Rosenbaum [2021] UKUT 5 (AAC), it was affirmed that section 23 covers a wide range of information and not necessarily direct references to security bodies.

  • Qualified Exemptions (Sections 26 and 27): These relate to the defence and international relations of the UK. The tribunal considered whether the disclosure was likely to prejudice the capability, effectiveness, or security of the armed forces, or UK’s relations with other states or international organizations.

  • Public Interest Test: The tribunal engaged in a public interest balancing test, as required under section 2(2) of FOIA for qualified exemptions, considering whether the public interest in maintaining the exemption outweighs the public interest in disclosure of the information.

  • Late Reliance on Exemptions: In line with DEFRA v IC and Birkett [2012] PTSR 1299, late reliance on exemptions was deemed permissible to reach a correct conclusion under the de novo consideration.

  • Likelihood of Prejudice: In assessing if disclosure would ‘likely’ to prejudice defence interests, the tribunal adhered to principles from R (Lord) v Secretary of State for the Home Department [2003] EWHC 2073 (Admin), which indicates that “likely” implies a significant and weighty chance of prejudice.

Outcomes

The First-tier Tribunal concluded:

  1. Engagement of Absolute Exemption (Section 23): Information related to security bodies (absolute exemption), which is protected in the widest sense, justified the non-disclosure of certain redacted sections of JSP900.

  2. Engagement of Qualified Exemption (Section 26): The MOD correctly invoked the exemption regarding defence. The withheld information had the potential to prejudice the capability, effectiveness, or security of the armed forces, thus satisfying the ‘would prejudice’ test and engaging the section 26 exemption.

  3. Public Interest Test: The tribunal found that while there was a strong public interest in disclosure, it was outweighed by the public interest in maintaining the exemption, primarily because of the risk to the armed forces and national security.

  4. Data Protection (Section 40): The tribunal did not contest the Commissioner’s decision that the exemption properly applied to the personal data of an MOD employee.

The appeal by Mr. Gibbons was dismissed based on these findings, affirming the decision of the Information Commissioner.

Conclusion

In the decision of Ceri Gibbons v The Information Commissioner & Anor ([2024] UKFTT 35 (GRC)), key FOIA exemptions relating to absolute and qualified exemptions were thoroughly applied and scrutinized, incorporating a detailed public interest balance. The outcome reflects the judiciary’s cautious approach in affording weight to the executive’s assessment on issues of defence, security, and international relations, while still performing a detailed and rigorous examination of the public interest argument in transparency and disclosure. The nuanced examination and ultimate dismissal of the appeal offer essential guidance for legal professionals on the application and scope of FOIA exemptions.