ICO slammed for 'unfair' approach to FoI appeal by UK judges

Upper Tribunal says commish should have viewed materials in drone strike info request herself

Annoyed woman isn't buying whatever is being sold

Judges have slammed the Information Commissioner’s handling of an appeal against a Freedom of Information decision about a Syrian drone strike, saying it “fell well short” of expectations.

Back in 2015, journalist Jenna Corderoy and the executive director of campaign group Rights Watch UK, Yasmine Ahmed, requested information relating to the approval and legal advice given ahead of a set of RAF airstrikes in Syria that year.

Their requests to the attorney general and Cabinet Office were refused, with the agencies citing security matters, under section 23 of the FoI Act. This is an absolute exemption, and so negates any public interest there may be in disclosure.

On appealing to the Information Commissioner’s Office, the body agreed with the government, saying the exemptions applied.

But, crucially, the commissioner – Elizabeth Denham – did so without exercising her statutory power to assess the material herself. Instead, the commissioner relied on the assurances of the other two bodies without examining the advice.

This was one issue considered by the UK’s Upper Tribunal when the appeal passed up to it last year, along with consideration of the scope of the security exemptions applied.

And – in a decision (PDF) published yesterday – the commissioner was strongly criticised for her decision to rely on assurances.

The judges said they were “surprised” at the approach taken by the commissioner and the other two respondents in the case – the attorney general and the Cabinet Office – which they said “fell well short of what was required under FOIA”.

The commissioner did modify her defence during the tribunal, admitting she should have asked for "more detail", but said she did not accept it was necessary to look at the documents herself. The judges, though, disagreed.

“It follows that we welcome the Information Commissioner’s modification of her position but we disagree that it would not have been necessary for her to look at the documents in this case whatever further (and undefined) detail she accepts she should have sought,” they said in their decision.

Pointing to the oft-repeated complaint that the ICO is underfunded, the judges went on to add:

We acknowledge the resource difficulties of the Information Commissioner but we consider that the course adopted here of effectively permitting the other two Respondents to be the decision-maker on the challenge to their stance on the application of the absolute exemption in section 23 is unfair.

Jon Baines, chair of NADPO – the National Association of Data Protection and FoI Officers – described the judges’ criticisms as “remarkable”.

“It will be very interesting to see how the ICO responds to this,” he told The Reg.

“They often plead lack of resource, and, while this can be a valid excuse for things like delay and backlog, I cannot accept it as an excuse for failings in the conduct of statutory investigations. It is clear the court didn't either – describing the conduct as 'unfair' and 'inappropriate'."

An ICO spokesperson said: “We acknowledge the decision made by the Upper Tribunal in this case and will be considering the judgment.”

On the other issue in the case – the scope of the exemption and the appeal itself – the judges indicated that the security exemption should not be applied as broadly as it had been.

The judgement said that information about a government policy decision, including any legal advice (as requested in this case), can and should be “disaggregated” from information that relates to intelligence or operational decisions that would fall under section 23.

However, they still didn't rule that the information requested in this case should be handed over.

Instead, the judgement said that the “primary effect of disclosure of disaggregated information would be to allow those who disagree with the policy or its lawfulness to attack it” – and that this could happen without disclosure.

“We have concluded that as a properly informed public debate of the legal issues can be had without that disclosure the public interest balance comes down firmly in favour of non-disclosure," the judges said.

Baines said that, although the appellants were not successful, the judgment is interesting because it “suggests a reluctance on the court's part to accept a very broad application of the exemption for information 'in relation to' bodies dealing with national security matters”.

Ahmed described it as a “significant push-back against the government’s expansive claims of secrecy”.

She said: “The government are on notice: referencing the security services or them having sight of information does not hand public bodies a blank cheque to veto scrutiny of their actions, and they cannot do so and expect the Information Commissioner, courts and public to acquiesce.” ®

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