APG v Information Commissioner & The Ministry of Defence

Factual and Procedural Background

The All Party Parliamentary Group on Extraordinary Rendition (APG), a cross-party group of legislators established to examine allegations of the UK's involvement in extraordinary rendition, submitted a series of Freedom of Information Act 2000 (FOIA) requests to the Ministry of Defence (MOD) in early 2008. These requests sought information concerning memoranda of understanding (MOUs) with Iraq, Afghanistan, and the United States regarding detainee treatment, a review of detention practices, policy on capture and joint transfer, and detainee statistics in Iraq and Afghanistan.

The MOD refused to supply the requested information between June and September 2008, citing various exemptions including cost limits under FOIA section 12 and exemptions related to national security and international relations. APG requested internal reviews, which were completed in February 2009, with the MOD raising the section 12 cost exemption for the first time during this process.

Dissatisfied with the internal reviews, APG appealed to the Information Commissioner, who mostly upheld the MOD's position except for certain parts of the fourth request. Both parties subsequently appealed to the First Tier Tribunal. Due to the complexity and sensitivity of the issues, the appeals were transferred to the Upper Tribunal.

The case involves highly sensitive matters of national security, international relations, and compliance with legal obligations concerning detainee treatment during military operations in Iraq and Afghanistan. The Tribunal received extensive legal submissions and unchallenged witness evidence and considered relevant UK and European case law.

Legal Issues Presented

1. Whether the Ministry of Defence was entitled to rely on the FOIA section 12 exemption concerning the cost of compliance for the requests, particularly given the timing of its reliance.
2. Whether the MOD was justified in withholding information under qualified exemptions including sections 23 (Special Forces), 26 (defence), 27 (international relations), 38 (health and safety), 40 (personal data), and 42 (legal professional privilege).
3. The application and balance of the public interest test in relation to exemptions claimed under FOIA.
4. Whether information relating to detainees constituted personal data under the Data Protection Act 1998 and whether its disclosure would contravene data protection principles.
5. The procedural question of the permissibility of late reliance on exemptions by the public authority after the statutory time limits for refusal notices and internal reviews.

Arguments of the Parties

Appellant's Arguments (APG)

• Section 12 exemption was claimed too late, after the statutory time limit for refusal notices, and without reasonable justification.
• The cost estimate provided by the MOD was unreasonable and unsupported by clear evidence, especially considering the public availability of related information.
• The scope of the FOIA requests, particularly concerning MOUs, was narrower and more focused than the MOD contended, making the cost exemption inappropriate.
• The public interest strongly favored disclosure, especially regarding accountability for detainee treatment and compliance with legal obligations.
• Information relating to detainees, even if personal data, should be disclosed with appropriate redactions as it would not contravene data protection principles and would promote transparency and justice.
• Late reliance on exemptions such as section 23 (Special Forces) should be scrutinized closely due to the delay and potential unfairness.

Respondent's Arguments (Ministry of Defence)

• It was permissible to rely on section 12 exemption at the internal review stage, even if not initially claimed, as internal review allows reconsideration and new grounds for exemption.
• The cost estimates were reasonable given the broad scope of the requests and the multiple departments involved.
• Section 23 exemption regarding Special Forces information was properly relied upon, despite being claimed late, due to the high importance of safeguarding national security.
• The information requested about detainees was personal data, and its disclosure would contravene data protection principles, justifying exemption under section 40.
• The public interest did not outweigh the need to protect sensitive information related to international relations, defence, and personal data.

Information Commissioner's Arguments

• Supported the MOD's position on the permissibility of late reliance on exemptions at internal review, but accepted that reasonable justification is needed for claims first made after internal review.
• Agreed with the MOD that cost estimates were reasonable in the context of the broad requests.
• Expressed concern about the late claim of section 23 exemption but did not object to it in this case.
• Supported the application of data protection principles but acknowledged that some information might not constitute personal data if individuals could not be identified.

Table of Precedents Cited

Court's Reasoning and Analysis

The Tribunal undertook a detailed examination of the FOIA requests and the MOD's reliance on various exemptions, applying statutory provisions and relevant case law. It distinguished between substantive exemptions under Part II of FOIA and the cost exemption under section 12, emphasizing the particular procedural and substantive considerations applicable to late reliance on the cost exemption.

Regarding the section 12 exemption for the request concerning MOUs, the Tribunal found the MOD's cost estimate unreasonable and its reliance on the exemption untimely and unjustified. It held that the scope of the request, as reasonably understood in context, was narrower than the MOD's wide interpretation, and that prompt clarification was not sought as required by the FOIA Code of Practice. Consequently, the MOD could not rely on section 12 for this request.

On the qualified exemption under section 27 (international relations), the Tribunal acknowledged the importance of the executive's assessment of prejudice but expressed skepticism about the applicability of the exemption to MOUs designed to ensure compliance with human rights obligations. It noted the fundamental public interest in transparency and the rule of law, suggesting that disclosure of the terms of such understandings would not necessarily prejudice international relations. However, a final determination on this exemption was deferred pending further submissions and examination of the information.

For the detention practices review, the Tribunal upheld the MOD's reliance on section 23 (Special Forces) for certain passages and section 42 (legal professional privilege) for the legal annex, finding that the public interest favored maintaining these exemptions. It rejected the application of section 26(1)(b) (prejudice to capability of forces) and found some applications of section 27 unconvincing, concluding that the public interest in disclosure outweighed the public interest in maintaining the exemption for parts of the review.

Regarding the policy on capture, the Tribunal found the request to be broad and the MOD's cost estimate reasonable. It held that the MOD was entitled to rely on section 23 to refuse to confirm or deny the existence of such information, effectively upholding the refusal.

In relation to detainee information, the Tribunal rejected the MOD's late reliance on section 12, noting that the information was already collated and the costs incurred, making the claim inappropriate. The late claim of section 23 was accepted given the importance of safeguarding Special Forces information, with redaction applied to protect exempt information before considering personal data issues.

The Tribunal analyzed whether the information about detainees constituted personal data under the Data Protection Act 1998. It concluded that dates and locations of detention and transfer for a small number of individuals detained for short periods did not enable identification and therefore were not personal data. Even if they were, the Tribunal found no material unfairness in disclosure and that the relevant Schedule 2 condition 6(1) (legitimate interests) would be satisfied. It rejected reliance on other Schedule 2 conditions and on section 35(2) of the DPA.

The Tribunal also addressed the MOD's argument that anonymized data remains personal data because the MOD can identify individuals internally. It adopted a nuanced view that while the data controller must comply with data protection principles internally, fully anonymized information disclosed to the public is not personal data for the recipients and can be disclosed.

Throughout, the Tribunal emphasized the importance of procedural fairness, promptness, and reasoned decision-making under FOIA, balancing the public interest in transparency and accountability against legitimate concerns of national security, international relations, and personal data protection.

Holding and Implications

The Tribunal's final decisions were as follows:

• The MOD is not entitled to rely on the FOIA section 12 cost exemption for the request concerning memoranda of understanding. This requires the MOD to reconsider the request and disclose information not covered by other exemptions, subject to further hearings on section 27 claims.
• The MOD's reliance on section 23 (Special Forces) exemption for parts of the detention practices review and policy on capture is upheld. Disclosure of these materials is refused.
• The appeal concerning the detention practices review is allowed in part, with more information to be disclosed than previously provided, except where exemptions apply.
• The appeal regarding detainee information is allowed in part. Information relating to Iraq is withheld under section 23 exemption; information relating to Afghanistan not covered by section 23 is to be disclosed, as it is not protected personal data.
• The MOD's late reliance on section 12 and section 23 exemptions in relation to detainee information is rejected or accepted respectively, with redactions applied accordingly.

The direct effect of these rulings is that the MOD must disclose certain information to APG within 28 days, enhancing transparency on detainee treatment and related policies. The Tribunal did not set new broad legal precedents but clarified the application of FOIA provisions, particularly on late reliance on exemptions and the scope of personal data under FOIA and the Data Protection Act. The case underscores the balance between transparency, national security, international relations, and data protection in sensitive governmental disclosures.