Jon Austin v The Information Commissioner: Tribunal Upholds Strict Application of Section 23(1) FOIA Exemption for Security Information

Introduction

The case Jon Austin v The Information Commissioner examines the application of the Freedom of Information Act 2000 (FOIA) exemptions, specifically section 23(1) concerning information supplied by, or relating to, bodies dealing with security matters. The First-tier Tribunal (General Regulatory Chamber) Information Rights, via written evidence and submissions, determined the case on consent, resulting in dismissal of the appeal on 19 January 2024.

Key Facts

Jon Austin, the appellant, requested the annexes B and C of a report produced by the Home Office from an Independent Review of Serious and Organised Crime, which were referred to but not included in the published summary. Despite the initial indication of their supposed publication, the Home Office maintained that these annexes were never intended to be published. The Home Office refused the request citing FOIA exemptions under sections 23(1), 24(1), and 31(1). The Information Commissioner upheld this view, concurring that section 23(1) was properly engaged, leading to an appeal by Mr. Austin.

Legal Principles

The key legal principle at stake in this case was the application of the absolute exemption provided for under section 23(1) of FOIA. The legal threshold for this exemption is that the information must have been supplied by, or relate to, any of the security bodies specified in FOIA.

The Tribunal referred to several prior decisions to outline the concept that ‘relates to’ should be understood in a wide sense, but not so broadly as to include mere incidental connections. The statutory protection for the specified bodies under section 23 FOIA was described as offering the ‘widest protection’ of any of the exemptions, signifying Parliament’s determination to withhold even harmless disclosures unless initiated or consented to by the security bodies concerned, as interpreted in the precedents established by APPGER v IC & FCO [2015] UKUT 0377 (AAC), Corderoy v IC & Attorney General [2017] UKUT 0495 (AAC), and Department of Health v IC & Lewis [2017] EWCA Civ 374.

In the context of this case, the argument presented by the appellant hinged on the public interest test and the public’s right to know the identities of contributors to the review. The appellant contended that since the review involved multiple stakeholders, including those not pertaining to security bodies specified under section 23(3) FOIA, their identities should not be subject to the exemption. However, the decision noted the Home Office’s stance indicating an intertwined relationship between annexes and the security bodies that could not be easily separated or redacted.

Outcomes

The Tribunal, after reviewing the withheld material, concluded that the contents of Annexes B and C were integral parts of the report and contained information relating to security bodies specified under FOIA, reaffirming the viewpoint of the Commissioner. The Tribunal highlighted that the information was inextricable from the context of security matters and the named security bodies.

Thus, applying the broad interpretation of s23(1) FOIA, the Tribunal found the information exempt from disclosure and dismissed the appeal.

Conclusion

In summary, Jon Austin v The Information Commissioner serves as a clear affirmation of the expansive scope of section 23(1) FOIA exemptions in the realm of security information. The Tribunal reinforced the broad application of this legal principle, demonstrating a strict adherence to the protective intent legislated by Parliament. By dismissing the appeal, the Tribunal underscored the longstanding judicial approach that places significant weight on the non-disclosure of information from specified security bodies, irrespective of incidental or supplementary contributions from non-security bodies within a report. This case reaffirms the stringent application of FOIA’s section 23(1) exemption and the limited scope of the public interest test when national security concerns are at stake.