Prof Tim Crook v IC (Dismissed)

Factual and Procedural Background

This decision concerns an appeal brought under section 57 of the Freedom of Information Act 2000 ("FOIA") against a Decision Notice issued by the Information Commissioner on 20 December 2018. The appeal arises from a request made by the Appellant for disclosure under FOIA of files and information held by the Metropolitan Police Service ("MPS") Special Branch (now part of Counter-Terrorism Command) relating to staff and students at a certain college during the period 1917 to 1989. The MPS refused the request citing multiple exemptions under FOIA, including section 23(5) relating to national security matters. The Commissioner upheld the refusal based on the application of section 23(5), which is an absolute exemption. The Tribunal was provided with extensive documentation including pleadings, correspondence, witness statements, and authorities presented by the Appellant. The appeal was heard on 19 May 2021, with deliberations concluding on 1 July 2021 and the decision promulgated on 23 July 2021.

Legal Issues Presented

1. Whether the MPS was correct to apply the neither confirm nor deny ("NCND") exemption under section 23(5) FOIA in relation to the requested information.
2. Whether the application of section 23(5) FOIA to historical security body information is compatible with the Appellant's rights under Article 10 of the European Convention on Human Rights ("ECHR").
3. Whether the Appellant's right to a lawful remedy under Article 13 ECHR is infringed by the necessity to pursue alternative legal routes such as common law requests and judicial review.
4. Whether the Commissioner erred in applying an absolute exemption under section 23(5) FOIA without conducting a public interest balancing test.

Arguments of the Parties

Appellant's Arguments

• The refusal to confirm or deny the existence of the requested information infringes his Article 10 ECHR rights to freedom of expression and access to information.
• The application of section 23(5) FOIA to historical information is incompatible with Article 10 ECHR.
• Requiring an alternative legal route through common law and judicial review infringes his Article 13 ECHR right to an effective remedy, especially given his lack of resources to pursue judicial review.
• The Commissioner wrongly applied an absolute exemption under section 23(5) without conducting a public interest balancing exercise.
• The Appellant contends that the Security Service Act 1989 creates a statutory Security Service distinct from the pre-1989 MI5 within the Home Office, and thus section 23(3) FOIA does not apply to his request for pre-1989 information.
• He argues that national security and privacy concerns could be addressed by redactions rather than a blanket NCND refusal, which he claims is disproportionate.
• The Appellant relies on Strasbourg jurisprudence, including Magyar Helsinki Bizottsag v Hungary, asserting a qualified right of access to information held by public authorities.
• He asserts that FOIA requests should be subject to independent appeal and adjudication, emphasizing the public interest in disclosure of historical information.

Commissioner's Arguments

• The Tribunal is bound by the Upper Tribunal decision in Moss v Information Commissioner & Cabinet Office and should not read down section 23(5) FOIA to give effect to Article 10 rights.
• The Commissioner is not under a duty to apply EU Charter rights as the Charter applies only when implementing Union law.
• The Tribunal lacks jurisdiction to issue a declaration of incompatibility under section 4 of the Human Rights Act 1998.
• Article 13 ECHR has not been transposed into domestic law, so the Appellant cannot rely on it to claim a right to an effective remedy.
• The absolute exemption under section 23(5) applies regardless of the historical nature of the requested information.
• The Commissioner endorses the MPS's approach that NCND is appropriate to protect national security and prevent the mosaic effect of piecemeal disclosures.
• Even if the Appellant met criteria for a qualified Article 10 right, the application of FOIA would not interfere with that right in this case.
• The Commissioner relies on case law including Kennedy v Charity Commission, Moss, and Rosenbaum v Information Commissioner to support the application of section 23(5) as an absolute exemption.
• Other exemptions under FOIA (sections 27, 30, 31, 40) also apply to the requested information, further justifying refusal and NCND stance.

Metropolitan Police Service's Arguments

• The MPS supports the Commissioner's decision to apply NCND under section 23(5) and other exemptions.
• They argue that the requested information, if held, would be connected to a section 23(3) body (Security Service) and confirming or denying its existence would reveal sensitive information.
• Daily liaison with security bodies necessitates strict application of NCND to protect operational secrecy and national security.
• The MPS accepts that one specific file (the Heinemann file) has been disclosed and cannot be subject to NCND.
• They contend that the appeal concerns the duty to confirm or deny, not the duty to provide information, and that public interest balancing does not arise with absolute exemptions like section 23(5).
• The MPS highlights the cost and procedural implications of judicial review as the alternative legal route.

Table of Precedents Cited

Court's Reasoning and Analysis

The Tribunal carefully considered the statutory framework of the FOIA, particularly the provisions of section 23(5), which provides an absolute exemption for information supplied by or relating to bodies dealing with security matters. It accepted the Commissioner’s and MPS’s submissions that any information falling within the scope of the Appellant’s request would, on the balance of probabilities, relate to or have been supplied by a section 23(3) body, specifically the Security Service or its predecessors.

The Tribunal rejected the Appellant’s argument distinguishing pre-1989 MI5 from the statutory Security Service established by the Security Service Act 1989. It found no ambiguity in the statutory language and held that the exemption applies to the requested historical information.

Regarding the Appellant's reliance on Article 10 ECHR rights, the Tribunal acknowledged the competing Strasbourg jurisprudence but found itself bound by the Upper Tribunal’s decision in Moss, which held that Article 10 rights do not override the absolute exemption under section 23(5). The Tribunal also noted its lack of jurisdiction to issue declarations of incompatibility under the Human Rights Act 1998.

The Tribunal endorsed the MPS’s position that confirming or denying the existence of the information would itself reveal sensitive information, thereby justifying the NCND approach. It emphasized the protective purpose of section 23(5) to prevent inferences being drawn and to preserve operational secrecy.

Other exemptions under FOIA, including sections 27 (international relations), 30 and 31 (investigations and law enforcement), and 40 (personal data), were also considered applicable and supported the refusal to disclose information or confirm its existence. The Tribunal noted the potential harm to individuals’ privacy and compliance with data protection law.

The Tribunal declined to conduct a public interest balancing exercise on section 23(5) as it is an absolute exemption. It also dismissed the Appellant’s argument that alternative routes such as common law requests followed by judicial review were inadequate remedies, noting that Article 13 ECHR is not incorporated into domestic law.

Finally, the Tribunal recognized the Appellant’s frustration and public interest arguments but concluded that the statutory scheme and binding precedent mandated dismissal of the appeal.

Holding and Implications

The Tribunal’s final decision was to DISMISS THE APPEAL in its entirety.

The direct effect of this decision is that the MPS is entitled to maintain its refusal to confirm or deny whether it holds the requested information under section 23(5) FOIA and other related exemptions. The absolute exemption applies regardless of the historical nature of the information sought. No declaration of incompatibility with the ECHR is made, and the Tribunal emphasizes that alternative legal remedies remain available to the Appellant outside FOIA.

This decision does not establish new precedent but reinforces the binding authority of the Upper Tribunal and Supreme Court decisions limiting the application of Article 10 rights in the context of FOIA absolute exemptions related to national security.