Introduction

The case of All Party Parliamentary Group on Extraordinary Rendition (APPGER) v. The Information Commissioner and Foreign and Commonwealth Office (FCO), adjudicated by the Upper Tribunal (Administrative Appeals Chamber) on July 2, 2015, addresses pivotal issues surrounding the interpretation and application of the Freedom of Information Act 2000 (FOIA) in the context of national security and information exemptions. APPGER, a cross-party group established to scrutinize the UK's involvement in the US extraordinary rendition programme, sought disclosure of sensitive governmental communications under FOIA. The core legal dispute centered on whether certain documents should be exempt from disclosure under absolute exemptions provided by FOIA's Section 23(1) and the qualified exemptions under Section 27(1).

Summary of the Judgment

The Upper Tribunal partially upheld APPGER's appeal against the Information Commissioner's refusal to disclose specific documents related to the detention and rendition of British nationals by US authorities. The Tribunal ruled that:

• Documents 12, 13, 14, 16, 30, and 52 are subject to the absolute exemption under Section 23(1) of FOIA.
• Disclosure of documents 59 and 78, which fall under the qualified exemption of Section 27, was not in the public interest due to potential harm to international relations, particularly intelligence sharing with the United States.
• The information in document 61 had already been disclosed, negating the need for further release.

The Tribunal emphasized a broad interpretation of what constitutes information that "relates to" specified bodies under Section 23(1), effectively limiting APPGER's access to sensitive information tied to national security.

Analysis

Precedents Cited

The judgment references several key cases to support its reasoning:

• Durant v. Financial Services Authority [2003]: While Mr. Pitt-Payne cited this case to argue for a narrower interpretation of "relates to," the Tribunal distinguished it, noting differences between FOIA and the Data Protection Act.
• The Independent Parliamentary Standards Authority v. Information Commissioner and Ben Leapman [2015]: Supported the Tribunal's stance on the distinction between information and documents under FOIA.
• SSHAD v. Rehman [2003]: Influenced the Tribunal's approach to assessing national security risks in the public interest balancing test.
• R (Evans) v. Attorney-General [2015]: Reinforced the orthodox approach regarding the timing of the public interest assessment.

These precedents collectively underscored the necessity of a broad interpretation of exemptions to safeguard national security interests.

Legal Reasoning

The Tribunal's legal reasoning can be distilled into several key points:

• Broad Interpretation of Section 23(1): The Tribunal adopted a wide interpretation of what it means for information to "relate to" specified security bodies, aligning with legislative intent to prevent circumvention of absolute exemptions.
• Public Interest Timing Point: Drawing from the Supreme Court's decision in R (Evans) v. Attorney-General, the Tribunal affirmed that the public interest assessment should be based on circumstances at the time the public authority made the disclosure decision, not at the time of the tribunal hearing.
• Balancing Test under Section 27(1): For qualified exemptions, the Tribunal weighed the public interest in disclosure against the potential harm to national security, ultimately determining that the latter prevailed.
• Intelligence Information Sharing Risk: The Tribunal introduced and relied on the concept of an "Intelligence Information Sharing Risk," highlighting the potential degradation of intelligence cooperation if sensitive information were disclosed.

This multifaceted legal reasoning reinforced the Tribunal's commitment to maintaining stringent information exemptions when national security is at stake.

Impact

The judgment has significant implications for future FOIA requests, particularly those involving national security and intelligence services:

• Strengthened Exemptions: By endorsing a broad interpretation of Section 23(1), the Tribunal set a precedent that limits access to sensitive information held by security bodies, emphasizing national security over transparency in such contexts.
• Public Interest Balancing: The affirmation of the orthodox timing point for public interest assessments under Section 27(1) ensures that disclosures are evaluated based on the context at the time of the request, providing clarity and consistency in future cases.
• Procedural Clarity: The Tribunal's detailed approach to handling closed evidence and the reliance on existing legislative frameworks offer a clearer procedural roadmap for both requesters and public authorities.
• Intelligence Sharing Confidence: By prioritizing national security and addressing the risks associated with intelligence sharing, the judgment reinforces the trust between the UK and its international partners, potentially influencing the scope of future intelligence collaborations.

Overall, the decision reinforces the protective mechanisms within FOIA that safeguard national security while delineating the boundaries of information disclosure.

Complex Concepts Simplified

FOIA Section 23(1) Absolute Exemptions

Section 23(1) of the Freedom of Information Act 2000 provides absolute exemptions for information related to specific security bodies, such as the Security Service (MI5), Secret Intelligence Service (MI6), and Government Communications Headquarters (GCHQ). An absolute exemption means that no public interest test is applied; the information is categorically exempt from disclosure to protect national security.

FOIA Section 27(1) Qualified Exemptions

Unlike Section 23, Section 27(1) provides for qualified exemptions where disclosure of information could prejudice relations between the UK and other states. Here, a public interest balancing test is applied to weigh the benefits of disclosure against potential harms to international relations and national security.

Public Interest Balancing Test

This test evaluates whether the public's interest in obtaining the information outweighs the potential harm that its disclosure could cause. Factors include the importance of transparency versus the risk to national security or international relations.

Intelligence Information Sharing Risk

The Tribunal coined the term "Intelligence Information Sharing Risk" to describe the potential negative impact on intelligence cooperation if sensitive information were disclosed. This risk encompasses the possibility that mutual intelligence sharing could be compromised, hindering national security efforts.

Conclusion

The Upper Tribunal's decision in APPGER v. Information Commissioner and FCO reinforces the robust nature of FOIA's absolute exemptions, particularly under Section 23(1), ensuring that sensitive information related to national security remains protected. By adopting a broad interpretation of "relates to" and affirming the orthodox timing for public interest assessments under Section 27(1), the Tribunal strikes a delicate balance between transparency and security. This judgment underscores the judiciary's role in safeguarding national interests while delineating the boundaries of public access to information, thereby shaping the landscape for future FOIA requests involving national security concerns.