Dr Andrew Lownie v The Information Commissioner & Anor.
[2023] UKFTT 397 (GRC)
Lownie v Information Commissioner & Anor
8 April 2024
[2024] UKUT 116 (AAC)
Upper Tribunal
A historian requested secret government files. The government refused, citing national security. A court agreed the government could keep the files secret and didn't need to explain exactly why, to protect national security.
Key Facts
- •Dr Lownie, an historian, requested information from the FCDO relating to Guy Burgess under the FOIA.
- •The FCDO refused disclosure relying on FOIA sections 23 and 24 (national security exemptions).
- •The Information Commissioner agreed with the FCDO's alternative reliance on exemptions.
- •The First-tier Tribunal and a Presidential Panel confirmed the approach, remitting the case back to the First-tier Tribunal.
- •The appeal concerns whether information was held in the Public Record Office (affecting the absolute/qualified nature of section 23 exemption), the adequacy of the First-tier Tribunal's reasons, and the relevance of Article 10 ECHR (preserved for potential Court of Appeal appeal).
Legal Principles
Interpretation of statutes requires considering the context of words and passages within the section, wider group of sections, and the statute as a whole.
R (O) v Secretary of State for the Home Department [2023] AC 255
Section 64 FOIA determines whether section 23 exemption is absolute or qualified based on whether information is in the Public Record Office.
Freedom of Information Act 2000
The First-tier Tribunal must provide written reasons for its decision, subject to the prohibition on disclosure contrary to national security interests (Rules 38(2) and 14(10) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009).
Tribunals, Courts and Enforcement Act 2007, Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009
Outcomes
The Upper Tribunal upheld the First-tier Tribunal's interpretation of 'in the Public Record Office' in section 64 FOIA, focusing on the formal process of accessioning rather than mere physical location.
The tribunal's interpretation avoids arbitrary consequences and aligns with the practical operation of the Public Record Office.
The Upper Tribunal found that the First-tier Tribunal did not breach its duty to provide reasons.
The duty to give reasons is subject to the need to protect national security; providing reasons that would disclose the specific exemption relied upon would undermine the purpose of the exemption.