Category Archives: Information Tribunal

January 28, 2025 · 6:20 am

Closed MI5 material in the Information Tribunal

You don’t know what you don’t know.

A recent judgment in the Information Tribunal is a good example of this platitude in the context of access to information held by public authorities.

The applicant had asked MI5, under the Environmental Information Regulations 2004 (EIR) for information on its CO2 emissions (by reference to the Greenhouse Gas Protocol). MI5 refuse to disclose in reliance on the exception to disclosure at regulation 12(5)(a), on the grounds that disclosure would adversely affect national security. This refusal was upheld by the Information Commissioner’s Office.

Perhaps unsurprisingly, the applicant was sceptical. The judgment notes that

she said that MI5 had not demonstrated a causal link between the disclosure of the information and the claimed adverse effect of that disclosure; MI5 had not provided any evidence that the adverse effect of disclosure was more likely than not to occur. She described the position of MI5 to be based on assumptions and that they had overlooked the difficulty of inferring accurate information from emissions data

The Information Tribunal can, though, consider closed material in EIR and FOI processing (ie information and evidence which the applicant cannot see/hear). And in this case, MI5 adduced closed evidence, in the form of “damage assessments” which

included submissions as to how the emissions data could be used and the nature of the conclusions that could be drawn from those data, whether analysing the data alone, by also using data in the public domain or by using comparators” and “identified stark and very accurate conclusions that could be drawn from the raw data itself with simple calculations

In the face of such evidence, the Tribunal inevitably dismissed the applicant’s appeal.

The judgment is well worth reading as an illustration of how the closed material procedure works.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

1 Comment

Filed under access to information, Environmental Information Regulations, Information Tribunal, national security

Tagged as ,

December 5, 2024 · 5:57 am

FOIA costs decision against applicant for failing to withdraw contempt application

A freedom of information requester is facing costs in what seems to have been a bit of a shambles before the First Tier Tribunal (FTT). I think this is rather concerning, albeit slightly convoluted, and, frankly, the whole thing is not assisted by a judgment that is strewn with errors and lacks coherence. In what follows I’ve had to piece together some of the information missing, or unclear, from the judgment.

It appears that the requester (AHB) had made a Freedom of Information Act 2000 (FOIA) request to the Royal Mint on 19 June (not July, as the FTT judgment says) 2021 for information about its “Garbled Coin Policy” in relation to repatriated UK currency. On 16 July 2021 The Royal Mint replied with what appears to have been a short narrative response. AHB complained to the Information Commissioner (ICO) on 28 September 2021, and ten months later the ICO held (very peremptorily, and rather oddly, I would say) that the Royal Mint held no information in relation to the original request.

AHB then appealed to the FTT and in a judgment of 3 October 2023 (the “2023 judgment”) the FTT held that the ICO had either or both erred in law, or in the exercise of his discretion, because the Royal Mint held further information in relation to the request. It issued a judgment constituting a substitute decision notice (SDN), under which the Royal Mint was ordered to issue a fresh decision within 35 days of the date on which the SDN was promulgated. The judgment specifically says “Failure to comply with this decision may result in the Tribunal making written certification of this fact pursuant to section 61 of the Freedom of Information Act 2000 and may be dealt with as a contempt of court”. The Royal Mint had chosen not to join itself to those proceedings and neither AHB nor the ICO had applied for it to be joined.

It is not at all clear, from the judgment, what happened next, but it appears that the SDN, with its Order that the Royal Mint issue a fresh response, was not served on the Royal Mint itself (presumably this error arose from its not having been a party, although it was aware of the proceedings). Then, on 9 December 2023, having received no fresh response, and no doubt taking his cue from the SDN, AHB made an application to the FTT under section 61(4) of FOIA for the Royal Mint to be certified to the Upper Tribunal for contempt of court.

It appears that the FTT finally served the SDN on the Royal Mint on 22 December 2023 (the judgment at several points has this as the obviously impossible “22 December 2024”).

One assumes, at this point, that, although the SDN was not served on the Royal Mint until the time of 35 days from 3 October 2023 had already passed, the Order in the SDN still had effect. That being the case, it appears to have been incumbent on the Royal Mint’s lawyers to make an urgent application, for instance for compliance with the Order to be waived, for relief from sanctions and for a new date for compliance to be set. Instead, they did not take action until 3 January 2024, when they wrote to the FTT suggesting that a response would be provided within a further 35 days. However, this was just correspondence – no actual application was made.

Eventually, a response was issued by the Royal Mint in relation to the SDN, on 5 February 2024, more than two-and-a-half years after AHB made his request.

AHB’s application for a contempt certification was still live though, and here I pause to observe that, on the information available, I am not surprised he took no action to withdraw it. He had been vindicated by the FTT’s SDN of 3 October 2023, and he was unaware that the SDN had erroneously not been served on the Royal Mint (in fact, it is not at all clear at what point he did become aware of this). In any case, as no application was made by the Royal Mint for further time, the Order in the SDN must still have been in effect. In fact the judgment alludes to this when it notes that AHB was “indicating” in his contempt application that the final Royal Mint response “was provided 125 days after the Substituted Decision Notice was issued and 90 days later than directed”.

In any event, the FTT declined to certify the failure to comply on time as contempt, because

whilst the Tribunal does consider that the Respondent could have acted more diligently on becoming aware of the Substituted Decision Notice, by applying for an extension of time and requesting permission to extend the time set out in the SDN, the Tribunal does not consider that [the Royal Mint’s lawyer] wilfully avoided complying with the order. The Tribunal accepts that he was simply not aware of the appropriate course of action to take in circumstances where a Court or Tribunal imposed a deadline that had already been missed. In any event, the approach taken is not sufficiently serious to warrant certification to the Upper Tribunal for contempt and the application is refused. [emphasis added]

I will pause here to say that it’s unusual, to say the least, for a court to accept a submission that a solicitor was not aware of what to do when in receipt of an order of a court. Most judges would be quite intolerant of such an argument.

But the story does not end there. In submissions dated 17 July 2024 the Royal Mint then “indicated an intention to pursue an application for the costs ‘of and associated with’ the [contempt] application”. Under rule 10 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 the FTT may make an order in respect of costs but only if it considers that a party has acted unreasonably in bringing, defending or conducting the proceedings.

And, remarkably, the FTT acceded to the costs application, on the grounds that AHB did not withdraw his application for the FTT to certify the Royal Mint’s (undoubted) failure to comply with the 3 October 2023 Order, after he had finally received the fresh response of 5 February 2024. The FTT also took into account AHB’s reference to pursuing a “campaign” to encourage greater transparency.

But does this mean AHB has “acted unreasonably in…conducting the proceedings”? I’m far from convinced (in fact, I’m not convinced). The FTT says

The Tribunal does not consider that it is reasonable (or that any other reasonable person would consider it reasonable) for an application for a party to be certified to the Upper Tribunal for contempt of court to be used as part of a campaign to encourage greater transparency…The Tribunal considers that the obligation to deal with cases fairly, justly, and proportionately in circumstances where the Applicant accepts that he was in appropriately [sic] pursuing a “campaign” for other purposes and where the chances of success in relation to the Tribunal actually certifying the contempt may be limited may justify the making of a costs order against the Applicant.

Well, if I’m to be considered a reasonable person, then I do not think it unreasonable for a person to decide not to withdraw such an application where they have waited more than two-and-half years for an answer from a public authority to a simple FOIA request, and where the public authority has failed to comply with an Order, because its lawyer chose not to acquaint himself with procedural rules. Unreasonableness imposes a very high threshold, and this is shown by the fact that costs awards are extraordinarily rare in FOIA cases in the FTT (from my research I have only found two, in the twenty-odd years FOIA has been in effect, and one of those was overturned on appeal). AHB may have been tenacious, perhaps overly so, and he may have ancillary reasons for (some of) his conduct, but – again – that does not connote unreasonableness.

Costs have not yet been awarded, as the FTT has adjourned for submissions on AHB’s means, and a breakdown of the Royal Mint’s costs.

I should end by saying there may be other material not in the public domain which provides a gloss on AHB’s conduct of the proceedings, but one can (and must) only go on what is in the public domain.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under access to information, contempt, costs, FOIA, Freedom of Information, Information Commissioner, Information Tribunal, judgments

Tagged as , , ,

December 3, 2024 · 6:00 am

I don’t think that word means what you think it means

[reposted from LinkedIn]

I think there’s a plain error of law in this Information Tribunal judgment (O’Hanlon & Anor v Information Commissioner & Anor [2024] UKFTT 1061 (GRC)).

Section 36(2)(b) of the Freedom of Information Act 2000 (FOIA) says that information is exempt if, in the reasonable opinion of a qualified person, disclosure would, or would be likely to, inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation, or would otherwise prejudice (or would be likely to do so) the effective conduct of public affairs.

I’ve written elsewhere about the flawed concept of who a “qualified person” is, but, at least in relation to govt departments, it’s straightforward: it’s a minister (s36(5)(a)).

In June 2022, Lord True, Minister of State in the Cabinet Office, in the context of a then-live FOIA request, gave a s36 “reasonable opinion”, as a qualified person, that internal department email addresses were exempt, and – crucially – that his opinion was to apply “going forward” in relation to any similar requests. Subsequently, the Cabinet Office applied his opinion to a new request which was received after he had given it.

The ICO said this was not permitted: “the provisions of s36 only become relevant once a request for information has been made…a Qualified Person’s opinion must therefore necessarily post-date the request for the information, and must be an opinion relating to the specific request”.

Not so, said the Tribunal: s36(6)(b) allows an “authorisation” to be “general”, and, therefore “a general authorisation must include be [sic] forward looking to other requests”.

But that is not what “authorisation” means in s36: the word only occurs, prior to s36(6)(b), in s36(5), and it refers to the authorisation of persons as qualified persons to give a reasonable opinion. In other words, the qualified person gives an opinion – not an “authorisation”. The reference in s36(6)(b) to an authorisation being permitted to be “general” is followed by “or limited to specific classes of case” – i.e. a person may be authorised in general to give a reasonable opinion, or authorised (perhaps they have a specialism) only in certain cases).

It does not mean that they are “authorised” to give a prospective qualified opinion that classes of information will always be exempt (subject to a public interest test).

The Tribunal’s reading of s36(6)(b) heavily informed its judgment, and it’s certainly questionable whether, but for this error, it would have decided in favour of giving this “prospective effect” to some s36 qualified opinions.

One hopes the ICO will appeal – because there will otherwise be a risk that public authorities will start classifying, of their own accord, certain classes of information as “always exempt”.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under access to information, FOIA, Freedom of Information, Information Commissioner, Information Tribunal, judgments

Tagged as , ,

November 27, 2024 · 5:57 am

Late (very late) reliance on exemptions, redux

[reposted from LinkedIn]

A Freedom of Information exemption may be relied upon “late” by a public authority (e.g. it can be claimed, after an initial refusal on other grounds, during an investigation by the Information Commissioner, or in the course of proceedings before the First-tier Tribunal). The jurisprudence on this is clear (Birkett v The Department for the Environment, Food and Rural Affairs [2011] EWCA Civ 1606, All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner & Ministry of Defence [2011] UKUT 153 (AAC), Information Commissioner v Malnick and the Advisory Committee on Business
Appointments [2018] UKUT 72 (AAC), McInerney v Information Commissioner and the Department for Education [2015] UKUT 0047 (AAC)).

But can a public authority, having received a preliminary decision from the FTT that an exemption is not engaged, and after the FTT has invited further submissions on the other exemptions said to be engaged, adduce new grounds for the rejection of the first exemption? Perhaps surprisingly, the FTT has answered “yes”.

In Finch v IC & HMT EA/2023/0303, the FTT had rejected HMT’s reliance on the section 12 costs exemption, in a preliminary decision of 12 January. HMT had argued that its IT supplier would charge more than £600 to retrieve the requested information from storage, and so the s12 exemption was engaged. However, the FTT held that no evidence was provided as to this, and so rejected the argument. As the ICO’s decision under appeal had only considered the s12 issue, the other exemptions said by HMT to be engaged (s40(2), s41, s43(2)) required further submissions from the parties, and so the FTT directed that these be provided and heard at a subsequent hearing.

HMT then submitted that it wished to rely on s12 on different grounds because a “new factual matrix” needed to be considered – in fact it did have access to repository of information, but the searches would take c.46.5 hours (and so exceed the s12 costs limits).

The FTT determined (Birkett, Malnick and – oddly – Browning v Information Commissioner [2013] UKUT 236 considered) that the broad case management powers under rule 5 of the Tribunal Rules allowed it to set its own procedure and that, accordingly, it would permit this “pivoted” reliance on new s12 grounds.

Those new grounds then prevailed, the s12 exemption applied (as would have, if necessary, the s40, 41, and 43 grounds) and the appeal failed.

Even though the ICO did not appear at the hearing, they did make submissions suggesting they opposed the late reliance. It will be interesting to see if they seek to appeal, as the idea that public authorities can as a general rule shift their grounds for relying on an exemption after it has been – in a preliminary decision – rejected, is not a particularly attractive one.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under access to information, Environmental Information Regulations, FOIA, Freedom of Information, Information Commissioner, Information Tribunal, judgments

Tagged as

October 29, 2024 · 5:21 am

ICO, Clearview AI and Tribunal delays

[reposted from LinkedIn]

On 28 October the Information Commissioner’s Office (ICO) made the following statement in respect of the November 2023 judgment of the First Tier Tribunal upholding Clearview AI’s successful appeal of the ICO’s £7.5m fine, and posted it in an update to its original announcement about appealing:

The Commissioner has renewed his application for permission to appeal the First-tier Tribunal’s judgment to the Upper Tribunal, having now received notification that the FTT refused permission of the application filed in November 2023.

It is extraordinary that it has taken 11 months to get to this point.

So what does this mean?

If a party (here, the ICO) wishes to appeal a judgment by the First Tier Tribunal (FTT) to the next level Upper Tribunal (UT), they must first make an application to the FTT itself, which must decide “as soon as practicable” whether to grant permission to appeal its own judgment (rules 42 and 43 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009).

If the FTT refuses permission to appeal (as has happened here), the application may be “renewed” (i.e. made again) directly to the UT itself (rule 21(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008).

So, here, after 11 months (“as soon as reasonably practicable”?) the ICO has just had its initial application refused, and is now going to make an applicant under rule 21(2) of the UT Rules.

The ICO’s wording in its statement is slightly odd though: it talks of “having now received notification” that the FTT “refused” (not, say, “has now refused”) the November 2023 application. The tense used half implies that the refusal happened at the time and they’ve only just been told. If so, something must have gone badly wrong at the Tribunal.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

2 Comments

Filed under Data Protection, GDPR, Information Commissioner, Information Tribunal, judgments, Upper Tribunal

Tagged as ,

October 20, 2024 · 10:02 am

The missing page about the missing PhD

[reposted from LinkedIn]

[EDIT: you win some, you get the wrong end of the stick on some. It was pointed out to me that the ICO removes items from its disclosure log after two years, which is why the document no longer shows up, and in the comments below I was taken to a copy of the document at WhatDoTheyKnow. Both these points have been confirmed to me in an FOI response from the ICO. What mislead me into thinking there was something more going on was probably the Tribunal’s reference to a “new policy”: it clearly wasn’t so much a policy, as a statement that the ICO would rely on s17(6) FOIA to refuse to reply to future requests, on the grounds that a vexatious campaign was being pursued.]

This is plain odd.

For several years the The London School of Economics and Political Science (LSE), and, consequently, the Information Commissioner’s Office has had to deal to with FOI requests about former Taiwanese president Tsai Ing-wen’s “missing PhD dissertation” (for some background, see here (I don’t vouch for its accuracy)).

A number of these requests have been refused on the grounds of vexatiousness, with many upheld on referral to the ICO.

The Information Tribunal has recently given judgment on one of these, and ruled in favour of the appellant, holding that the request was not vexatious. But what struck me was the fact that both the appellant and the ICO cited in evidence a page (a hosted pdf, going by the URL) on the ICO’s website. The judgment says this

The Appellant stated in his grounds of appeal that after he had complained to the Commissioner about the Authority’s response to the Request, the Commissioner published on the ICO’s website (by reference to a disclosure log) a new policy of not processing FOIA requests seeking information on President Tsai Ing-wen’s PhD.

But a footnote (screenshotted here) correctly notes that the link does not go to this page, and further, I can’t find any sign of it on the UK government web archive or the Wayback Machine. An advanced Google search on the ICO website throws no light.

So I’ve made an FOI request to the ICO, and will update when I get a response.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

4 Comments

Filed under access to information, FOIA, Freedom of Information, Information Commissioner, Information Tribunal, judgments

Tagged as , ,

September 26, 2024 · 6:12 am

Can a nullity be deemed a legal notice?

[reposted from LinkedIn]

I wrote recently about the fact that the Information Commissioner’s Office appeared to have served countless decision notices under section 50 of the Freedom of Information Act 2000 on the wrong legal person:

Someone recently made an FOI request to ask why the Commissioner had changed… terminology, because some decision notices are addressed to, say, the “University of Exeter”, while others are addressed to the “Governing Body of the University of Exeter”. The answer given by the Information Commissioner’s Office is that was not a change of approach, but, rather, that the examples of the former were “due to an error.”

Obviously I’ve not had any response to that from the ICO, and didn’t really expect one. But I do note a recent Information Tribunal case where the ICO argued that the Tribunal did not have jurisdiction to hear an appeal from a decision notice, because the ICO had discovered it had been served on the wrong body, and it was therefore a “nullity” – it wasn’t, and never had been a proper legal notice:

the IC submitted the DN was served upon [Harrogate Integrated Facilities Ltd] a trading name of [Harrogate Healthcare Facilities Management Ltd] and that [the latter] was the correct legal entity upon which the DN should have been served. As the DN was not served upon the correct public authority it should be deemed a nullity. An application was made to strike out the appeal under 8(2)(a) of the Rules due to lack of jurisdiction in relation to the proceedings.

Interestingly, although the Tribunal did not dispute the fact that the notice had been served on the wrong person, it skirted over (or, rather, avoided totally) the “nullity” submission. Instead, the Tribunal decided that it would itself “deem” the notice to have been served on Harrogate Healthcare Facilities Management Ltd (rather than on the wrong entity).

The Tribunal’s reasoning is sound on a common sense approach (they noted that if the proceedings were struck out the ICO would then just serve an identical notice on the correct body, and the whole process would need to restart, which would involve a disproportionate use of resources). However, it seems to me very dubious from a legal point of view, and there may be strong grounds to argue that its decision to treat what was argued to be a nullity as a decision notice for reasons of expediency (and not dealing with the nullity point) was ultra vires.

It will be interesting to see if the ICO appeal. Especially as if they do, it may open up a floodgate of other cases which – on their submission – might also be nullities.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

3 Comments

Filed under FOIA, Information Commissioner, Information Tribunal, rule of law

Tagged as ,

August 30, 2024 · 3:48 am

Pseudonymous FOI requests are not valid requests

[reposted from LinkedIn]

For a request for information under the Freedom of Information Act 2000 to be a valid one it must, under section 8, be in writing, describe the information requested and state “the name of the applicant” and an address for correspondence.

Does the name have to be the person’s real name?

“Yes”, says Judge Griffin (uncontroversially) when striking out an appeal to the First Tier Tribunal.

In the case, a person purporting to be “Simon Shannon” had made a (purported) request for information to the Civil Aviation Authority, which was partly refused, on the basis that the specific information was not held. “Simon Shannon” then made a (purported) complaint to the Information Commissioner’s Office who issued a (purported) decision notice upholding the refusal.

“Simon Shannon” then brought a (purported) appeal before the Tribunal. In his application he listed his address as “The Houses of Parliament”. This led the ICO to ask the Tribunal to direct that “Simon Shannon” give his real address. This then led to “Simon Shannon” applying to have the purported appeal struck out and for permission to lodge a new appeal in the name of Thomas Deacon – his real name.

The problem with this was, the judge pointed out, that as s8 FOIA requires that a request state “the” name of the applicant, rather than “a” name, this means that a pseudonym will not suffice, and a request made in the name of a pseudonym, as had been the case with “Simon Shannon”, was not a valid request. And there is a reason this matters:

“When an applicant uses a pseudonym to make a request to a public authority
that authority is deprived of the opportunity to consider whether those parts
of the Act [such as when considering whether requests are vexatious, or whether aggregated costs of two or more requests exceed the appropriate limit] to which the applicant’s identity is relevant apply to the request.”

It followed that, as the request was not a valid request, the ICO “unknown to him, had no power to consider a complaint under section 50 of the Act, nor to issue a decision notice”. And it further followed that the Tribunal had no jurisdiction – it could not simply permit the appeal to be remade in the person’s real name, because there was no ICO decision capable of being appealed.

None of this is especially new to FOI practitioners and lawyers, but the judgment is a clear and helpful explainer of the issues.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under access to information, FOIA, Freedom of Information, Information Commissioner, Information Tribunal, pseudonym

Tagged as , ,

August 25, 2024 · 8:47 am

Manifestly EIR

[reposted from LinkedIn]

I’m dumbfounded how a public authority, all of the staff at the Information Commissioner’s Office – including its litigation lawyers – and the three people hearing the appeal in the Information Tribunal, failed to identify that this request clearly should have been handled under the Environmental Information Regulations 2004 and not the Freedom of Information Act 2000 – it’s about land use, a boundary dispute and planning. The ICO decision notice even states that “it relates to the status of the Council’s land adjacent to the complainant’s property”.

It may be that, on analysis, the request – which was refused on the grounds that it was vexatious – a decision with which both the ICO and Tribunal agreed – would have been considered manifestly unreasonable under the EIR, but that is no excuse. The refusal was wrong as a matter of law, the ICO decision notice is wrong as a matter of law, and the Tribunal judgment is wrong as a matter of law.

I have raised this issue before of public authorities, ICO and the Tribunal failing to deal with requests under the correct regime. I’m now minded to raise the issue formally with, at least, the ICO.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under access to information, Environmental Information Regulations, FOIA, Information Commissioner, Information Tribunal

Tagged as , , ,

August 8, 2024 · 5:09 am

Blistering criticism for Home Office and ICO

[From a LinkedIn post]

A blistering judgment of the Information Tribunal upholding an FOI appeal by Bail for Immigration Detainees (BID) against the decision by the Information Commissioner’s Office (ICO) to uphold the Home Office’s refusal to disclose info about the process for deportation to Eritrea and Somalia (and by extension, the likelihood of deportees being either detained, or bailed, pending removal).

The request, about how many Emergency Travel Documents were requested, how many issued, how many people were then removed and how long this took, was refused by the HO on grounds that disclosure would be likely to harm international relations and would prejudice the operation of immigration controls.

The HO failed to reply to the ICO’s enquiries until served with a formal Information Notice. But the ICO then agreed that the exemptions were engaged.

The Tribunal did not agree.

The judgment notes the HO “made no effort to engage” with the appeals, and its evidence consisted of “thinly reasoned assertions, with no evidential support”, and

…we hope that the reasons were not meant to be comprehensive. It would betray a rather dim view by the Home Office of other countries’ governments to think that “many if not most” only care about money, and whether their citizens commit crimes or migrate unlawfully – as humans from all countries do.

To the extent the FOIA exemptions were engaged, the public interest test fell heavily in favour of disclosure. In the face of evidence from BID about levels of unlawful detention (in the form of the number of cases in which it had successfully appealed refusals of bail for detainees) the Tribunal observed that

For hundreds of years, the common law has demanded that administrative detention must be justified and be capable of proper challenge…The work done by BID, both on behalf of individuals and more broadly, supports that public interest. Disclosure…would help it to achieve those ends and avoid injustice.

There were minimal factors in favour of disclosure. In fact “it is difficult to conceive of a case concerning this exemption where the scales could be less weighted in favour of exemption”.

And, in closing, the Tribunal had a blast at the ICO, noting

our surprise that [he] thought it appropriate to accept the [HO’s] bare assertions, given the way in which it had responded to the previous requests described above and the compulsion required before it then properly engaged with these. In turn the…Decision Notices disclose no consideration of the various public interest factors carefully put forward by BID. A pattern of conduct has been established on the part of the [HO] that is within neither the spirit nor the letter of FOIA, and which can now be seen as having resulted in considerable delay together with expense of resources both on the part of the Tribunal and BID…We hope that future decisions will be reached after considerably more care and scrutiny.

Let’s see.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under access to information, FOIA, Freedom of Information, Home Office, Information Commissioner, Information Tribunal, LinkedIn Post

Tagged as , ,