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Neutral Citation Number:	2015 UKUT 377 AAC
Reported Number:
File Number:	GIA 2230 2012
Appellant:	All Party Parliamentary Group on Extraordinary Rendition
Respondent:	Information Commissioner and Foreign and Commonwealth Office
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	02/07/2015
Date Added:	23/07/2015
Main Category:	Information rights
Main Subcategory:	Freedom of information - absolute exemptions
Secondary Category:	Information rights
Secondary Subcategory:	Freedom of information - qualified exemptions
Notes:	Reported as [2016] AACR 5. Freedom of information – proper construction and application of section 23 – public interest timing point in context of section 27 – proper application of public interest balancing test in respect of national security The All Party Parliamentary Group on Extraordinary Rendition (APPGER) had made three Freedom of Information Act (FOIA) requests about the detention of two British residents and the extraordinary rendition of a third. The Foreign and Commonwealth Office (FCO) refused some of the information on the basis of exemptions in FOIA. The Information Commissioner (the Commissioner) mainly upheld the FCO’s response and the First-tier Tribunal (F-tT) dismissed APPGER’s subsequent appeals. APPGER appealed to the Upper Tribunal (UT). The UT, following an initial hearing, issued two interim decisions before holding a second hearing to consider the remaining matters. The remaining matters before the UT concerned (1) the proper construction of section 23 of FOIA; (2) the proper application of section 23 to the information in the documents; (3) the public interest timing point in the context of section 27; (4) the proper application of the public interest balancing test under section 27; and (5) whether a particular document should be released when the relevant information had already been disclosed. Held, disallowing these aspects of the appeal, that: 1. the proper construction of section 23 of FOIA placed no obligation on the public authority to specify to the requester which specific limb of the section 23(1) test was relied upon in respect of each piece of disputed information (although such justification may be required to the Commissioner and, on appeal, to the F-tT or the UT) (paragraph 12); 2. the UT rejected the submission that for the purposes of section 23(1) information “relates to” a security body only if the information has that body as “its focus, or main focus” or an equivalent connection to that body. Concerns that an overly generous approach to this test might involve disputed information being exempted merely because it had been copied to a section 23 body were considered, and a way of benchmarking a decision on the application of section 23(1) was identified (paragraphs 20 to 21); 3. the exemption in section 27 was qualified and the public interest balancing test therefore applied. The issue of principle that arose was the date at which the test was to be applied. Following the Supreme Court’s powerful support for the orthodox approach, the timing of the assessment was the date of the public authority’s refusal (not the date of the Commissioner’s Decision Notice or the tribunal hearing): R (Evans) v Attorney-General [2015] UKSC 21 (paragraphs 48 to 49); 4. the proper application of the public interest balancing test involved an evaluation of different and competing interests including the actions of the security services and the product of their work. The key to the test involved looking at the value of the benefits advanced against the gravity of the harm that would otherwise arise if the Intelligence Information Sharing Risk materialised. In the instant case the UT concluded that the public interest in avoiding the gravity of the harm outweighed the value of those benefits (paragraphs 107 to 109); 5. the appellant’s argument that a particular document should be released was misconceived, given that the basic principle was that FOIA gave a (qualified) right to information, not to particular documents. That fundamental distinction between the record and the information contained within it had been confirmed by Court of Appeal: The Independent Parliamentary Standards Authority v ICO & Leapman [2015] EWCA Civ 388; [2015] AACR 37 (paragraph 124).
Decision(s) to Download:	[2016] AACR 5ws.doc