Edward Williams v Information Commissioner

1. Mr Williams (the appellant) appeals against a decision notice dated 5 February 2024, issued by the Information Commissioner (the Commissioner) under section 50 of the Freedom of Information Act 2000 (FOIA). Background

2. In a request dated 23 April 2023 the appellant wrote to the Home Office and requested information in the following terms: I note from records in the National Archive that the Home Office file HO287/3120: 'The Lie Detector: consultation document; correspondence with government departments' has been retained by your Department. Under the Freedom of Information Act could you please: 1) confirm that you have the file 2) provide a list of its contents 3) release the contents to The National Archive.

3. The Home Office provided a substantive response on 16 June 2023 in which it confirmed that it held the requested information, but refused to provide a list of contents or release the file to The National Archive. The Home Office stated that the information was exempt from disclosure under either section 23(1) or section 24(1) of FOIA. The two provisions were relied on in the alternative. The Home Office also relied on sections 27(l)(a) and sections 40(2) of FOIA to withhold some of the information.

4. The appellant requested an internal review of the decision. This was carried out and on 10 August 2023 the Home Office maintained its decision.

5. The appellant made a complaint to the Commissioner on 11 August 2023. The substance of the complaint relates to the use of two exemptions in the alternative rather than whether the exemptions were properly applied. His complaint was concerned with the lawfulness of a public authority relying on one exemption which it knows does not in fact apply in order to mask the fact that a second exemption does apply. The Commissioner's decision made on 5 February 2024 is the subject of this appeal. The Commissioner's decision

6. As summarised by the Commissioner, the Home Office position is that in relying on both section 23(1) and section 24(1), it is specifying that one of those exemptions applies, but it is declining to identify which one. The Home Office took this step because, in its view, it would be inappropriate to provide any information that would undermine national security or reveal the extent of any involvement of the security bodies listed in section 23(3) of FOIA.

7. The Commissioner accepts that the exemptions contained in section 23(1) and section 24(1) of FOIA are mutually exclusive and that only one of the two exemptions can apply to a single request.

8. The Commissioner explained that he will permit a public authority to rely on both exemptions in the alternative if that public authority does not wish to reveal that a section 23 security body is involved in an issue. The effect of this that although only one exemption is engaged, the public authority may refer to both exemptions in its decision. The Commissioner relied on Upper Tribunal authority for his position, noting that the authority is binding.

9. Given the nature of the requested information, the Commissioner could not provide any detail about it in the decision notice, but having reviewed it, was satisfied that the Home Office was correct that the information falls within either section 23(1) or section 24(1) of FOIA and that if section 24(1) is engaged, the public interest favours maintaining the exemption. The appeal

10. The appellant lodged an appeal on 5 February 2024 and provided detailed grounds of appeal. He identified a number of issues which he stated that he wanted the tribunal to answer in its decision. In addition, the appellant contends that Williams v Information Commissioner [2021] UKUT 248 (AAC) was wrongly decided and should not be followed by the First-tier Tribunal.

11. The issues the appellant seeks to have addressed are: (i) Does an appellant have a right to a fair hearing in an appeal under section 57 of FOIA pursuant to article 6 of the European Convention on Human Rights (ECHR)? (ii) What is the statutory or other legal basis for a 'hypothetical public interest test'? (iii) If the tribunal finds that section 23(1) is not engaged, but section 24(1) is engaged, how will it express that in its decision without disclosing that section 23(1) is not engaged? (iv) If the tribunal finds that neither exemption is engaged, how will it express that in its decision without disclosing that section 23(1) is not engaged? (v) If a public authority received a request which it decided did not engage section 23, but did not wish to reveal that fact, the public authority would be knowingly dishonest when issuing a decision under section 17 of FOIA if it confirmed it held the information but relied on section 23(1) and section 24(1). Why was it the intention of Parliament that a pubic authority could lie when responding to a FOIA request? (vi) Are there any other situations where a public authority can rely on exemptions in the alternative, for example sections 30 and 31 of FOIA? (vii) Can an exemption not considered to be in play nevertheless confer an exemption? (viii) Does the principle of open justice play any part in section 17 of FOIA?

12. We have not gone through and answered these questions one by one. This is because we have instead focused on the issues that arise in this appeal. Some of the questions the appellant asks are simply not within the scope of this appeal and it is inappropriate for us to address them. Others are only indirectly relevant.

13. The issues in this appeal are: (i) Was the Home Office entitled to rely on both section 23(1) and section 24(1) in the alternative? (ii) If so, were those exemptions correctly applied? The hearing

14. The appellant appeared remotely by audio link only at his request. He had indicated in advance of the hearing that he did not wish to cross-examine Mr Murphy and the tribunal therefore agreed to the appellant's request.

15. The hearing consisted of an OPEN and a CLOSED session. We heard submissions from the appellant, Mr Hanstock and Mr Knight. It was agreed during the CLOSED hearing that there was nothing in the closed evidence or submissions that could or should appropriately be gisted to the appellant. There were no legal submissions made in the CLOSED session and the appellant had made it clear that a gist of the CLOSED evidence was unlikely to be of assistance to him. The law

16. Sections 23 and 24 of FOIA provide where relevant:

23. Information supplied by, or relating to, bodies dealing with security matters. (1) Information held by a public authority is exempt information if it was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).

24. National security (1) Information which does not fall within section 23(1) is exempt information if exemption from section 1(l)(b) is required for the purpose of safeguarding national security. Findings and reasons Was the Home Office entitled to rely on section 23(1) and section 24(1) in the alternative?

17. The principles relating to section 23 of FOIA are set out in detail by the Upper Tribunal in Commissioner of the Police of the Metropolis v Information Commissioner & Rosenbaum [2021] UKUT 5 (AAC) (Rosenbaum) and there is no need to set them out here. We have had regard to them in reaching our decision. Similarly, the principles in relation to section 24 are also well-established and were approved by a three-judge Presidential panel of the Upper Tribunal in Foreign, Commonwealth and Development Office v Information Commissioner & Williams & Wickham-Jones & Lownie [2021] UKUT 248 (AAC) (Williams).

18. We appreciate the strength of feeling the appellant has that the decision in Williams is wrong; however, as was pointed out on behalf of the Commissioner, the appellant was a party in Williams and did not seek permission to appeal. One of the other parties did seek permission to appeal to the Court of Appeal, but was refused. The decision of the Upper Tribunal therefore remains authoritative.

19. The appellant seeks to challenge the Upper Tribunal's decision in Williams on the basis that it was decided per incuriam and contends that we should not follow in it reaching our decision. With respect to the appellant, we reject his arguments. The decisions of the Upper Tribunal are binding on us unless and until overturned by the higher courts. Nothing in any of the caselaw cited to us demonstrates that Williams was wrongly decided or provides a lawful basis on which we may depart from it.

20. The appellant argues that the ability to specify an exemption which does not apply is not compliant with the public authority's duty pursuant to section 17 of FOIA. This was dealt with by the Upper Tribunal in Williams . It found that a notice which specifies sections 23 and 24 in the alternative complies with the requirement to specify the exemption in question. The Upper Tribunal held that this was the case where some information is covered by section 23 and some is covered by section 24 and where the information falls exclusively within either section 23 or section 24. In reaching that conclusion the Upper Tribunal applied the ordinary meaning of the words and a purposive construction to the statutory test.

21. The appellant seeks to argue that Parliament's intention could not have been to permit a public authority to lie when issuing a section 17 notice. The Upper Tribunal expressly rejected this position in Williams , finding that 'specifies' means no more than 'cites' or identifies' and that there was no substantive obligation contained in section 17(b)(1) that a public authority must specify only a valid exemption. The Upper Tribunal also considered that section 17 must not be construed in isolation, but alongside and in harmony with the other statutory provisions of the scheme. In particular, it is necessary to have regard to the intention of Parliament to afford a wide degree of protection for information relating to security bodies. The Upper Tribunal pointed out that in cases involving sections 23 and 24, it is clear to anyone reading the decisions that they may not receive certain information because it is information supplied by, or relating to, bodies dealing with security matters, or is exempt from disclosure on national security grounds. They would not know which of the exemptions applied, but there would be nothing untrue or misleading.

22. The appellant asked whether it would be possible for a public authority to rely on pairs (or more) of other exemptions for the purposes of masking which one in fact applies. This is a question that does not arise in this appeal. We have settled case law relating to the two exemptions relied on in this case and whether it might be possible in a different context is irrelevant. Mr Knight noted that the national security context in which the use of sections 23 and 24 in the alternative arises is important and that the Commissioner is doubtful that the use of more than one provision for the purpose of masking in another context would be appropriate.

23. The appellant argued that there is a detriment or disadvantage to requesters in not knowing which of the exemptions relied on in fact applies. This was considered by the Upper Tribunal in Williams . It was acknowledged that there may well be some detriment to requesters, as they are effectively forced to address both exceptions and make arguments as to why they should not apply instead of being able to focus their efforts on the exemption which is in fact in play. It found however that the purpose of masking, i.e. protecting national security, outweighed any practical consequences for requesters. None of the appellant's submissions persuade us that this aspect of Williams was wrongly decided.

24. The appellant sought to suggest that in the present case, it would have been more appropriate for the Home Office to give a neither confirm nor deny response to his request rather than specify an exemption it knew did not in fact apply. This was not a response that was open to the Home Office here because the existence of the information is already in the public domain. As the appellant states in his request: 'from records in the National Archive that the Home Office file HO287/3120: 'The Lie Detector: consultation document; correspondence with government departments' has been retained by your Department'.

25. The appellant suggested that he could not have a fair hearing with reference to article 6 of the ECHR if he had to mount hypothetical arguments about one aspect of the public authority's decision which did not reflect its true position. This was addressed by the Upper Tribunal in Williams , having had regard to relevant jurisprudence. The Upper Tribunal held that the right of access to information in English law did not engage a civil right; and even if it did, it was unclear as to how the FOIA scheme breaches any right to a fair trial given the independent scrutiny which both the Commissioner and the First-tier Tribunal provide. We agree and nothing in the appellant's submissions persuades us that we can or should depart from this position.

26. The appellant asked two questions about how the tribunal can give reasons for its decision without giving away which of the exemptions apply. He was essentially asking how the tribunal can give adequate reasons for its decision. This is a question that was dealt with by the Upper Tribunal in Lownie v Information Commissioner and the FCDO [2024] UKUT 116 (AAC) . In Williams , the Upper Tribunal remitted the appeal of Dr Lownie to the First-tier Tribunal. The decision in Lownie , is the appeal to the Upper Tribunal against the decision made on remittal.

27. In Lownie the First-tier Tribunal provided reasons for its decision that either section 23 or section 24 applied. The reasons were given in a closed decision which was not provided to Dr Lownie. He argued that the First-tier Tribunal had failed to comply with its duty to give reasons. The Upper Tribunal rejected the argument on the basis that if it was correct, the duty to give reasons undermines the Presidential panel (in Williams ), which cannot be right in principle and is contrary to the provisions of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Procedure Rules 2009 which govern the giving of reasons. Rules 38(2), 14(10), and 14(9) are all relevant and when read together provide that the First-tier Tribunal must give reasons for its decision, but without undermining the prohibition on disclosure contrary to the interests of national security. Given the decision of the Upper Tribunal in Williams , the First-tier Tribunal in Lownie was under a duty not to disclose whether it relied on section 23 or section 24. We are in the same position. Giving reasons that would disclose the relevant exemption would undermine the prohibition on doing so. This is the authoritative position on the point and is not undermined by the appellant's submissions in relation to the case of South Bucks District Council & anor v Porter [2004] UKHL 33 , which was in a different context.

28. The appellant was concerned about the application of a 'hypothetical public interest test'. Mr Knight accepted that to the appellant it may appear hypothetical, but in fact it is not. In a case where masking is used, the premise is that one of the exemptions is correctly engaged, which the tribunal tests, even if the appellant is not privy to all of the CLOSED facts and evidence.

29. The tribunal's task is to decide which, if any of the exemptions were correctly applied. If none were correctly applied, then the tribunal is bound to say so. A public authority cannot mask the incorrect use of one exemption with use of another.

30. In determining whether masking was appropriately applied, the tribunal must consider the reasons for it. In Rights & Security International v Information Commissioner and the Home Office [2024] UKFTT 296 (GRC) (RSI) the tribunal that stated this required it to be independently satisfied that masking which exemption applies must be in the public interest. Mr Knight suggested that the use of the phrase 'public interest' was potentially unhelpful given that this has a specific meaning within FOIA and as it relates to the application of exemptions. He suggested that a better way of expressing what is required might be that the tribunal should satisfy itself that masking is 'justified'. We agree that this is a more helpful way of describing what must happen. That this is in fact what the tribunal was doing in RSI , which is made clear at paragraphs 51 to 54 of its decision.

31. The appellant relied on the decision of the Court of Appeal in Department for Business and Trade v Information Commissioner and Montague [2023] EWCA Civ 1378 (Montague) in support of his arguments in relation to section 17 of FOIA. In particular, he relies on the final sentence of paragraph 43 of the judgment which states: In that context, section 17(1) is clearly concerned with ensuring that the individual concerned knows the specific provision (or provisions) conferring exemption upon which the public authority is relying.

32. The decision post-dates that of the Upper Tribunal in Williams . Mr Knight submitted that nothing in Montague , including this excerpt, overrides what the Upper Tribunal held in Williams . He pointed out that the Court was concerned whether the public interest in two or more exemptions could be assessed in combination, i.e. aggregated, in determining whether the public interest in disclosure is outweighed. He contends that the Court of Appeal simply restates the statutory language which ensures that the requester knows which provision applies. He submitted that the requester knows which provision applies, even where both section 23 and section 24 are relied on, because one of them must apply, even if the other does not.

33. In summary, we find that the position as set out in Williams is what we must follow in determining whether the respondent was entitled to rely on both sections 23 and 24 in the present case.

34. Having considered the CLOSED evidence, we are satisfied that specifying sections 23(1) and 24(1) in the alternative is necessary in order to avoid adverse consequences of a significant nature. None of our reasoning can be publicly disclosed. Were the exemptions correctly applied?

35. Save in one respect, we find that the exemptions were correctly applied.

36. Mr Knight challenged the Home Office's reliance on section 27(1) of FOIA in relation to one piece of information on the basis that the Commissioner was not satisfied that it applied. We cannot give our reasons for agreeing with Mr Knight here, but we do so in our CLOSED reasons.

37. Mr Knight also challenged the Home Office's general application of the presumption that the lifespan of a human is deemed to be 100 years when relying on section 40(2) of FOIA. For the reasons set out in our CLOSED decision, the point was not material to the outcome of the appeal.

38. We are unable to set out our reasons in respect of the application of the exemptions in any more detail than that in this OPEN decision. We note that the appellant did not seek to make any arguments on this point. Notwithstanding this, we do wish to record the fact that Mr Knight sought to challenge the Home Office's application of the exemptions during the CLOSED session of the hearing. The appellant can therefore be satisfied that despite his lack of interest in the information itself, the Home Office was accountable for its application of the exemptions to that information. Conclusion

39. For all of these reasons, it follows that the appellant's appeal falls to be dismissed.