Factual and Procedural Background
This appeal concerns an information request made on behalf of the Appellant to the Ministry of Defence ("MoD") dated 22nd February 2005. The request sought disclosure of seven Memoranda of Understanding ("MoU") and a Defence Protocol, specifically four MoU with the Saudi Arabian Government dated 1973, 1985, 1986, and 1988. The 1973 and 1985 MoU had been placed in the National Archives and copies obtained by the Appellant, so the appeal focused on the 1986 and 1988 MoU.
The MoD claimed exemption under Sections 27 (International Relations) and 43 (Commercial Interest) of the Freedom of Information Act 2000 ("FOIA"), though Section 43 was not pursued at the Tribunal. After internal review, the MoD upheld the exemption under Section 27. The Appellant appealed to the Information Commissioner ("IC"), who confirmed the exemption under Section 27 and did not further consider Section 43. The Appellant then appealed to the Information Tribunal.
The Tribunal hearing took place in March 2008, conducted jointly with related appeals involving similar issues. Procedural directions allowed for closed evidence sessions and the appointment of a Special Advocate to represent the Appellant's interests during closed sessions. The Tribunal inspected relevant documents, considered oral and written evidence, and managed procedural complexities related to handling sensitive material.
Legal Issues Presented
- Whether the information requested constituted confidential information within the meaning of Sections 27(2) and (3) of the FOIA.
- Whether disclosure of the information would prejudice or be likely to prejudice relations with the Saudi Arabian Government and/or UK interests abroad under Section 27(1)(a), (c), and (d) of the FOIA.
- If the exemption under Section 27 is engaged, whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Department for Education and Skills v Information Commissioner (EA/2006/0006) |
Timing for assessing public interest in FOIA requests; assessment at or around the time of the request. |
The Tribunal considered the approach but ultimately held that the Information Commissioner should consider the whole process, including any review, not just the time of the request. |
| Evans v Information Commissioner (EA/2006/0064) |
Public authority must apply the public interest test at the time of the request. |
The Tribunal acknowledged the decision but, in context, concluded that the entire dealing with the request, including review, is relevant to the public interest balance. |
| Sugar (EA/2005/0023) |
Principles governing hearings in public or private under Tribunal Rules; necessity of closed sessions to protect exempt information. |
The Tribunal adopted the approach to hold closed sessions for evidence and submissions relating to exempt information to avoid defeating the exemption. |
| Hogan (EA/2005/0026 and 0030) |
Definition of prejudice in FOIA exemptions; prejudice must be real and substantial, not speculative. |
The Tribunal applied this standard in assessing prejudice to international relations and UK interests. |
| SS for the Home Office v BUAV (2008 EWHC 892) |
Clarification on the nature of confidential information under FOIA. |
The Tribunal noted this decision but found it did not give rise to any new point relevant to the appeal. |
| Maher (AATAD no V.84/291B) |
Prejudice to international relations under FOIA exemptions; exposure to risk of adverse reaction constitutes prejudice. |
The Tribunal referenced this case to support that prejudice includes making relations more difficult or exposing parties to risk of adverse reaction. |
Court's Reasoning and Analysis
The Tribunal first considered whether the requested MoU constituted confidential information under Section 27(2) and (3) of the FOIA. It found that the 1986 and 1988 MoU were marked as secret or confidential, exchanged between the UK Government and the Saudi Arabian Government ("KSA") under terms implying confidentiality. The Tribunal concluded that the circumstances made it reasonable for the KSA to expect the information to be held in confidence, and there was no evidence of consent for disclosure.
Regarding prejudice under Section 27(1), the Tribunal accepted the evidence of a senior UK diplomat with extensive experience in Saudi affairs that disclosure would likely cause real and substantial prejudice to relations with the KSA and UK interests abroad. The Tribunal acknowledged the sensitivity of the ongoing arms contracts and the context of a contemporaneous Serious Fraud Office investigation. It distinguished accidental disclosures of earlier MoU from the deliberate disclosure at issue here, finding the latter would have caused significant damage to mutual trust and future dealings.
In balancing the public interest under Section 2(2), the Tribunal recognized the strong public interest in transparency, especially regarding government dealings and arms trade, particularly where allegations of corruption exist. However, the Tribunal found no evidence within the MoU of corrupt practices to justify disclosure. The confidentiality and potential prejudice to international relations and UK interests outweighed the public interest in disclosure.
The Tribunal also considered whether partial disclosure through redaction would alter the balance but concluded that the documents' confidentiality as a whole was critical and redaction would not mitigate the prejudice.
Procedurally, the Tribunal addressed the necessity of closed sessions and the appointment of a Special Advocate due to the volume and sensitivity of the documents, ensuring a fair hearing while protecting confidential information.
On timing, the Tribunal analyzed submissions regarding whether the public interest test should be applied at the time of the request or at the time of the decision. It concluded that the Information Commissioner and Tribunal should consider the entire process, including any internal reviews, allowing for a current and relevant assessment of the public interest.
Holding and Implications
The Tribunal DISMISSED the appeal.
The holding was that the 1986 and 1988 Memoranda of Understanding constituted confidential information exempt under Section 27 of the FOIA. Disclosure would have been likely to prejudice international relations and UK interests abroad, and the public interest in maintaining the exemption outweighed that in disclosure. Consequently, the Ministry of Defence was not required to communicate the requested information to the Appellant.
No new legal precedent was established by this decision. The ruling confirms the application of Section 27 to sensitive international agreements and underscores the importance of confidentiality and the protection of diplomatic relations in the context of FOIA requests. It also clarifies procedural aspects regarding closed sessions and the role of Special Advocates in handling sensitive material during Tribunal proceedings.