All Party Group on Extraordinary Rendition v The information Commissioner and Foreign and Commonwealth Office

Factual and Procedural Background

This opinion concerns an appeal by a Parliamentary Group ("Appellant") against the decision of the First-tier Tribunal ("FTT") which mostly dismissed the Appellant's appeals against three Decision Notices issued by the Information Commissioner ("IC"). The IC had upheld the Foreign and Commonwealth Office's ("FCO") reliance on various exemptions under the Freedom of Information Act 2000 ("FOIA") in response to multiple FOIA requests by the Appellant concerning extraordinary rendition cases.

The Appellant’s FOIA requests related to three individuals subjected to extraordinary rendition: two British residents detained and transferred internationally, and a third individual with a complex history of detention and alleged mistreatment involving UK and US authorities. The requests focused on the UK Government’s involvement and information held by the FCO.

The FTT conducted hearings partly in open and partly in closed sessions due to the sensitive nature of the information. The FTT issued a final open decision on 3 May 2012, largely upholding the IC's decisions but substituting its own decisions on a few documents. The Appellant was excluded from closed sessions and challenged the adequacy of the FTT's reasons, particularly concerning certain exemptions.

The Appellant raised five grounds of appeal, two of which were stayed pending a Supreme Court decision. This interim decision addresses grounds 3, 4, and 5 regarding the adequacy of reasons for exemptions under sections 23 and 27 of FOIA and the application of the formulation and development of policy exemption under section 35(1)(a).

Legal Issues Presented

1. Whether the FTT provided adequate reasons for its conclusions on the application of the absolute exemption under section 23(1) of FOIA.
2. Whether the FTT erred in its approach to the control principle and the public interest balancing exercise under the qualified exemption of section 27(1) of FOIA.
3. Whether the FTT erred in its application of the exemption under section 35(1)(a) of FOIA concerning the formulation or development of government policy.

Arguments of the Parties

Appellant's Arguments

• The FTT’s conclusion on section 23(1) was a bare assertion lacking adequate explanation of why the exemption applied to the disputed documents, undermining the exercise of appeal rights especially given the Appellant’s exclusion from closed hearings.
• The FTT erred procedurally and substantively in its approach to the control principle under section 27(1), including failing to re-open the hearing for further evidence and argument after a controversial amendment to the draft judgment.
• The FTT failed to provide adequate reasons for concluding that the policy regarding detainees was still under development at the time of the requests under section 35(1)(a).

Respondents' Arguments

• The adequacy of the FTT’s reasons must be assessed in context; the nature of the absolute exemption under section 23(1) and national security constraints justify the level of detail provided.
• The term "control principle" is a conventional shorthand without legal force; the FTT’s use of it was a terminological variation and did not amount to an error of law.
• The FTT was entitled to find the detainee policy was still being developed; the exemption under section 35(1)(a) should be given a broad construction consistent with prior High Court authority.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the FTT's approach to the section 23(1) exemption, concluding that the FTT had conducted a detailed and diligent review of each disputed document, applying a purposive interpretation subject to a remoteness test. Although the FTT’s open reasons included some generalities, these were supported by extensive preceding analysis and closed reasons, which the court found sufficient given national security constraints and the absolute nature of the exemption.

Regarding the section 27(1) exemption and the control principle, the court identified significant procedural and substantive deficiencies. The FTT had introduced the “control principle” as a shorthand for a convention governing intelligence sharing confidentiality but had used it inconsistently and without adequately explaining why the broader category of information it applied to would give rise to the asserted Intelligence Information Sharing Risk. The FCO’s principal case on this risk was not made clear in open proceedings, causing unfairness to the Appellant, who was excluded from closed sessions where such evidence was considered.

The court found that the FTT’s refusal to reopen the hearing or allow further submissions after the Appellant’s challenge to the draft judgment’s wording was a procedural error causing and perpetuating unfairness. The lack of clarity about the FCO’s case and the FTT’s reasoning on the control principle and the public interest balancing rendered the FTT’s decision on section 27 unsatisfactory and legally flawed.

On the section 35(1)(a) exemption, the court accepted the FTT’s reasoning that the detainee policy was still under development at the time of the requests. It found the FTT’s approach consistent with established authority and that the reasons provided were adequate, with no need for further elaboration given the nature of the documents.

The court also emphasized the importance of fairness in FOIA proceedings involving closed material, recommending careful consideration of what evidence and reasoning should be disclosed to excluded parties to enable meaningful appeals and procedural fairness.

Holding and Implications

The Upper Tribunal allowed the appeal in part, specifically quashing the FTT’s decision insofar as it related to the application of the section 27 exemption concerning the control principle and the public interest balancing exercise.

The court found that the FTT had erred in law by failing to provide adequate reasons and by perpetuating procedural unfairness through refusal to reopen the hearing or allow further submissions after the Appellant challenged the draft judgment’s wording. This necessitates reconsideration of the section 27 exemption claims.

The appeal on the adequacy of reasons for section 23(1) and the application of section 35(1)(a) exemptions was dismissed, with the court confirming the FTT’s approach as reasonable and lawful.

The decision does not set new legal precedent but clarifies procedural fairness requirements and the need for clear articulation of the public interest balancing exercise in FOIA cases involving sensitive information and closed material procedures. Directions will be given for further proceedings to address the reconsideration of section 27 exemption claims and management of remaining issues in the appeal.