Introduction

Savic v. The Information Commissioner, The Attorney General's Office and The Cabinet Office is a landmark case decided by the Upper Tribunal (Administrative Appeals Chamber) on November 30, 2016. The appellant, Savic, sought access to sensitive government information under the Freedom of Information Act 2000 (FOIA). Specifically, Savic requested Cabinet minutes, departmental memoranda, and other records related to the decision to initiate a military air campaign against Serbia and Kosovo on March 24, 1999. The case primarily examines the application of the "No Confirmation or Denial" (NCND) exemptions under FOIA, particularly sections 23(5), 24(2), and 35(3), and assesses the balance between public interest in transparency and the preservation of governmental confidentiality.

Summary of the Judgment

The Upper Tribunal addressed Savic's appeal against the Information Commissioner's (CO Decision) refusal to disclose requested Cabinet minutes and related documents. The Tribunal found that the CO's application of section 35(3) of FOIA, which previously justified an NCND response regarding Cabinet minutes, was unlawful to the extent that it precluded confirming or denying the existence of such minutes. Consequently, the appeal was allowed on this basis, mandating the Cabinet Office to respond appropriately within 21 days. However, the Tribunal upheld the CO's decision to apply sections 27(1) and 42 of FOIA concerning international relations and legal professional privilege, respectively, thereby dismissing the appeal related to these exemptions. Additionally, the Tribunal identified issues with the application of sections 23(5) and 24(2), recommending further directions for their consideration.

Analysis

Precedents Cited

The judgment extensively references prior decisions, notably those involving the Upper Tribunal's interpretations in APPGER v IC and FCO [2013] UKUT 0560 (AAC) and related cases. These precedents provided foundational guidance on the application of FOIA exemptions, particularly concerning NCND responses. The Tribunal scrutinized the First Tier Tribunal (FTT) decisions in [2013] and [2015] cases, emphasizing the necessity of interpreting statutory provisions based on their literal meaning rather than judicially fashioned formulations.

Legal Reasoning

The core legal issue revolved around whether the Cabinet Office (CO) was justified in employing an NCND response under section 35(3) of FOIA for Cabinet minutes. The Tribunal determined that section 35(3) pertains strictly to information, not to documents or records, and thus does not authorize a blanket NCND response to confirm or deny the existence of such documents. The Court underscored the importance of the statutory language, distinguishing between absolute exemptions (sections 23(1) and 35(1)(a,b,c)) and qualified exemptions (sections 23(5), 24(2), and 27(1)). Furthermore, the Tribunal critiqued the CO's reliance on the "distraction argument," which posited that confirming or denying the existence of Cabinet minutes would impede effective government decision-making. The Tribunal found this argument unpersuasive, emphasizing that transparency about the decision-making process serves the public interest and does not inherently undermine governmental functions.

Impact

This judgment has significant implications for the interpretation of NCND exemptions under FOIA. It clarifies that while certain exemptions can justify withholding information, they must be applied in strict accordance with their statutory definitions. Specifically, section 35(3) does not permit public authorities to employ NCND responses to deny or confirm the existence of documents like Cabinet minutes. This decision enhances the transparency of governmental operations by ensuring that public authorities cannot obscure the existence of certain records merely through generalized NCND claims. Additionally, the judgment underscores the necessity for public authorities to provide clear and justified reasons when invoking exemptions, thereby fostering greater accountability and public trust in information requests.

Complex Concepts Simplified

No Confirmation or Denial (NCND): An NCND response is a mechanism under FOIA where a public authority neither confirms nor denies the existence of certain information in response to a request. This is typically used to protect sensitive information without revealing its presence.

Exemptions under FOIA:

• Section 23(5): Pertains to information related to security bodies, preventing the duty to confirm or deny such information.
• Section 24(2): Relates to national security, allowing for NCND responses if disclosing information would harm national security.
• Section 35(3): Excludes the duty to confirm or deny the existence of certain information held by a public authority but is specific to types of information, not documents or records.
• Section 27(1): Concerns international relations, providing absolute exemptions where disclosure could harm relationships between the UK and other states.
• Section 42: Relates to legal professional privilege, protecting legal advice from disclosure.

Public Interest Test: A balancing act under FOIA where the public authority must weigh the public interest in disclosure against the public interest in maintaining the exemption. The higher weight determines whether information is disclosed or withheld.

Distraction Argument: The argument that disclosing certain information would distract government officials from their duties or impose unnecessary burdens, thus justifying withholding information.

Conclusion

The Upper Tribunal's decision in Savic v. The Information Commissioner reinforces the necessity for precise application of FOIA exemptions, particularly concerning NCND responses. By invalidating the use of section 35(3) for NCND responses related to Cabinet minutes, the judgment mandates greater transparency in governmental record-keeping. Simultaneously, the Tribunal upheld the appropriateness of sections 27(1) and 42 exemptions where duly justified, ensuring that sensitive matters like international relations and legal professional privilege remain protected. Overall, this judgment enhances the accountability of public authorities in responding to FOIA requests, balancing the imperative for governmental transparency with legitimate concerns over privacy, security, and diplomatic integrity.

The implications of this case extend beyond its immediate context, setting a clear precedent for future FOIA disputes. Public authorities are now more firmly guided to distinguish between different types of exemptions and apply them with greater adherence to their statutory definitions. This fosters an environment where the public can expect a higher degree of openness in governmental processes, thereby strengthening democratic accountability and trust.