FOIA Appeal Upheld: Tribunal Rules in Favor of Non-Disclosure for National Security and International Relations

Citation: [2023] UKFTT 1082 (GRC)
Judgment on

Introduction

The case of Jon Austin v Information Commissioner & Anor (2023) pertains to an appeal against a decision made by the Information Commissioner (ICO), concerning a Freedom of Information Act 2000 (FOIA) request. The request was made by the appellant, Jon Austin, to the Metropolitan Police Service (MPS) for details regarding a cash donation received by a police sergeant from an overseas partner.

Key Facts

Austin sought information on an entry from the MPS’s gifts and hospitality register which involved a large cash gift to the police from an overseas partner. The MPS only partially disclosed the information citing several exemptions under FOIA, namely sections 24(1), 27(1)(a) and (c), 31(1)(a), 38(1)(b), and 40(2). Following an internal review and subsequent appeal to the ICO, the exemptions were upheld due to concerns relating to national security, international relations, and law enforcement, among others.

Austin appealed the ICO’s decision to the First-tier Tribunal (General Regulatory Chamber) on grounds that the information withheld would not realistically damage international relations and that the public interest favored disclosure. The Tribunal considered evidence in both open and closed sessions, including a witness statement from Chief Inspector (CI) Sammi Elfituri from RaSP.

The Tribunal’s decision rested on the application of several legal principles rooted in FOIA:

  1. Engagement of Exemption Under Section 27 FOIA: The tribunal applied a three-stage test to ascertain whether the exemption under section 27 FOIA was engaged. The test considered if the alleged harm related to the interests protected by the exemption, whether there was a causal relationship between possible disclosure and the alleged prejudice, and the likelihood of such prejudice occurring. The Tribunal, relying on precedents such as Gilby v IC and FCO and Campaign Against the Arms Trade v Information Commissioner and Ministry of Defence, found that the exemption applied due to the potential harm to international relations and the interests of the UK abroad.

  2. Public Interest Test: The Tribunal then undertook a public interest test, as required where a qualified exemption like section 27 FOIA is involved. It balanced the public interest in maintaining the exemption against the public interest in disclosing the information. The Tribunal aligned with the ICO’s view that there was a stronger public interest in preserving the confidentiality of RaSP operations and maintaining international relations than in the transparency of the gift’s details.

  3. Mosaic Effect and Reciprocity Principle: The consideration of the “mosaic effect” and the principle of reciprocity emerged as significant factors. Disclosing the country of origin could expose sensitive policing tactics and affect the UK’s provision of security to foreign and UK principals. The Tribunal considered that the disclosure of detailed information could compromise future international collaborations and protection arrangements.

Outcomes

The Tribunal dismissed the appeal, concluding that:

  • The exemption under section 27(1)(a) and (c) FOIA was indeed engaged due to the potential harm to international relations and the interests of the UK abroad.
  • The public interest in non-disclosure outweighed the public interest in the disclosure of the requested information.
  • Additional exemptions cited by MPS, such as national security or law enforcement, didn’t require separate consideration given the engagement of the section 27 exemption.
  • The Tribunal did not find it necessary to address the appellant’s concerns about the correspondence between the ICO and MPS, stating that while communications should be professional, the issue was not within its purview.

Conclusion

The Tribunal’s decision in Jon Austin v Information Commissioner & Anor reinforces the protection afforded to international relations and national security under FOIA. It also highlights the delicate balance that public authorities must strike between transparency and safeguarding sensitive operations. By upholding the exemptions under FOIA—and emphasizing the public interest in doing so—the Tribunal has affirmed the necessity of a cautious approach when handling information that could potentially compromise the UK’s diplomatic and protective functions.

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