High Court Case Analyzes Disclosure of National Security Documents in Judicial Review

Citation: [2024] EWHC 386 (Admin)
Judgment on

Introduction

This article analyses the recent High Court case of L1T FM Holdings UK Ltd, R (On the Application of) & Anor v Secretary of State in the Cabinet Office [2024] EWHC 386 (Admin). The case revolves around judicial review proceedings concerning the Secretary of State’s decision ordering the first claimant to divest its shareholding in a corporation, made under the National Security Investment Act 2021.

Key Facts

The primary issues in L1T FM Holdings pertain to the disclosure of documents related to national security in the context of judicial review, the production of ‘open versions’ of ‘closed documents’ containing sensitive material, and the redaction of names of civil servants not for reasons of national security.

The court had already instituted a closed material procedure, resulting in the provision of both open and closed documents to the respective parties, raising disputes about their presentation, labeling, and redaction. The Secretary of State sought permission under section 8 of the Justice Security Act 2013 for particular material to be disclosed only to Special Advocates and the court.

The judgment applies several sophisticated legal principles around the handling of sensitive information in legal proceedings:

  1. Closed Material Procedure (CMP): This procedure, referenced in section 8 of the Justice Security Act 2013, allows specific evidence to be disclosed in a manner that does not compromise national security. The judgment scrutinizes the appropriateness of different methodologies for creating ‘open’ versions of documents that contain sensitive ‘closed’ material.

  2. Preparation of Open Documents: The case explores different methods for transforming closed documents into open versions, like using ‘plain paper’ versions or providing summaries/gists, and demands that documents be unmistakably labeled to indicate where text has been redacted or summarized for national security reasons.

  3. Annotation of Documents: The court discussed whether documents should be annotatively marked when text is redacted or when summaries/gists replace text, concluding that the general endorsement is sufficient unless specific national security concerns justify further annotation.

  4. Redaction of Civil Servants’ Names: The court assessed the lawfulness of redacting junior civil servants’ names, referencing the Court of Appeal ruling in R(IAB) v Secretary of State for the Home Department [2024] EWCA Civ 66, and concluding that redaction is only justified with a “good reason” rather than as a matter of course.

  5. Protection of Officers’ Identities: The judgment recognized that certain officers’ identities, specifically those associated with GCHQ and the National Cyber Security Centre, require redaction as their exposure could compromise national security operations.

Outcomes

The High Court disallowed the broad redaction of civil servants’ names as proposed by the Secretary of State, except for explicitly mandated cases concerning GCHQ and NCA officers. The court instructed that open documents be adequately marked to clarify any applied redactions or summarizations. It reaffirmed that while achieving open justice, revealing specific information causative of damaging national security is neither necessary nor justified. The approach adopted by the Secretary of State to make open versions appear as complete documents without clear labeling was deprecated, and a set of remedial steps was mandated to correct the process and alleviate any potential prejudice to the claimant’s position.

Conclusion

In L1T FM Holdings, the court emphasized the delicate balance between national security and open justice. It clarified the appropriate handling and labeling of open documents derived from closed material, setting firm grounds on when and how agencies can redact sensitive information, such as names of civil servants. The judgment underscores the necessity of clear identification of redacted or summarized content to prevent misleading parties involved in litigation and highlights the courts’ pivotal role in scrutinizing the justification behind withholding information from public scrutiny.