Edward Williams v Information Commissioner & Anor

1. Mr Williams (the appellant) appeals against a decision notice dated 3 July 2024, issued by the Information Commissioner (the Commissioner) under section 50 of the Freedom of Information Act 2000 (FOIA). Background

2. In a request dated 12 July 2023 the appellant wrote to the Cabinet Office and requested information in the following terms: Provide the file relating to the late businessman, Ian Stuart Spiro. If you are going to rely upon s24 FOIA, please explain the reasons for doing so. I would remind you that information which is exempt under s23 cannot be exempt under s24. 24 National Security (1) Information which does not fall within section 23(1) is exempt information if exemption from section l(l)(b) is required for the purpose of safeguarding national security.

3. The Cabinet Office acknowledged the appellant's request on 12 July 2023. On 25 July 2023 the Cabinet Office wrote to the appellant advising that they required further clarification of what he was requesting before they could proceed. Specifically, the Cabinet Office asked: (1) Whether there is a particular file you have in mind, if this is the case please provide the file reference or title. (2) Is the request for all information held by the Cabinet Office in relation to the late businessman Ian Stuart Spiro?

4. The appellant responded by return and provided the following information: https://discovery.nationalcarchives.gov.uk/details/r/C16561655 Catalogue description SECURITY. Ian Spiro, international businessman. This record is closed and retained by the Cabinet Office. Visit the department website. Reference PREM 19/ 3946 Description: SECURITY. Ian Spiro, international businessman. Date: 1992 Nov 09. Held by: Creating government department or its successor, not available at The National Archives. Legal status: Public Record(s). Closure status: Closed or Retained Document Open Description. Access conditions: Retained by Department under Section 3.4.

5. The Cabinet Office wrote to the appellant advising him that it was extending the time for responding to his request. The Cabinet Office also advised that the information the appellant had requested was exempt from disclosure under section 24(1) of the Freedom of Information Act 2000 (FOIA) and that the additional time was so that they could consider the public interest test.

6. Although the Cabinet Office initially indicated that they hoped to provide a substantive response by 12 September 2023, on that date they wrote to the appellant and indicated that it had not been possible to do so and gave a revised date of 10 October 2023.

7. The Cabinet Office provided its substantive response on 10 October 2023 in which it stated that the information was exempt from disclosure under either section 23(1) or section 24(1) of FOIA. The two provisions were relied on in the alternative on the basis that it was not appropriate to say which of the two exemptions was engaged so as not to undermine national security or reveal the extent of any involvement, or not, of the bodies dealing with security matters.

8. The Cabinet Office indicated that it was aware that exemptions under sections 23 and 24 of FOIA are mutually exclusive, and stated that any information that was not exempt under section 23(1), could be exempt under section 24(1) . The Cabinet Office advised the appellant that it was not obliged to give any further explanation pursuant to section 17(4) of FOIA because to do so would involve the disclosure of information which would itself be exempt.

9. In respect of the public interest test, the Cabinet Office accepted that there is a general public interest in the disclosure of information and that openness in government may increase public trust in and engagement with the government. The Cabinet Office weighed the public interest in disclosure against that in safeguarding national security and concluded that the balance fell in favour of withholding the requested information.

10. The appellant requested an internal review of the decision. This was carried out and on 21 December 2023 the Cabinet Office maintained its decision. The Cabinet Office noted that the requested information had already been the subject of a previous request and a complaint to the Commissioner. The Commissioner had determined in that case that the Cabinet Office had been entitled to apply sections 23(1) and 24(1) in the alternative. The Cabinet Office provided the appellant with a link to the Commissioner's previous decision.

11. The appellant made a complaint to the Commissioner on 4 January 2024. The substance of the complaint relates to the use of two exemptions in the alternative. His complaint was concerned with the lawfulness of a public authority relying on one exemption which it knows does not in fact apply in order to mask the fact that a second exemption does apply. The appellant asked how the public authority can apply a hypothetical public interest test, i.e. in circumstances where section 24(1) is relied on, but it is known that the applicable exemption is in fact section 23(1). The Commissioner's decision made on 3 July 2024 is the subject of this appeal. The Commissioner's decision

12. The Commissioner accepts that the exemptions contained in section 23(1) and section 24(1) of FOIA are mutually exclusive and that only one of the two exemptions can apply to a single request.

13. The Commissioner explains that he will permit a public authority to rely on both exemptions in the alternative if that public authority does not wish to reveal that a section 23 security body is involved in an issue. The effect of this that although only one exemption is engaged, the public authority may refer to both exemptions in its decision. The Commissioner relied on Upper Tribunal authority for his position, noting that the authority is binding.

14. The Commissioner noted the appellant's reliance on the decision of the Court of Appeal in Department for Business and Trade v Information Commissioner & Montague [2023] EWCA Civ 1378 ; [2024] 1 WLR 2185 ( Montague ), but considered that it was not authority for the appellant's submission that sections 23(1) and 24(1) could no longer be relied on in the alternative because the Court of Appeal was considering the different question of whether the public interest could be aggregated in applying the public interest test where multiple exemptions are relied upon. The Commissioner considered therefore that the decision of the Upper Tribunal remained binding.

15. Given the nature of the requested information, the Commissioner could not provide any detail about it in the decision notice, but having reviewed it, was satisfied that the Cabinet Office was correct that the information falls within either section 23(1) or section 24(1) of FOIA and that if section 24(1) is engaged, the public interest favours maintaining the exemption.

16. The Commissioner was critical of the Cabinet Office for requiring the appellant to clarify his request and for extending the time for providing a response. The Commissioner was of the view that as the information had already been the subject of an earlier request, it should have been apparent as to what information the appellant was seeking and, it should also have been apparent to the Cabinet Office as to where the public interest lay. The Commissioner did not require the Cabinet Office to take any action in relation to this. The appeal

17. The appellant lodged an appeal on 3 July 2024 and provided grounds of appeal. He contends that Williams v Information Commissioner [2021] UKUT 248 (AAC) ( Williams ) was wrongly decided and should not be followed by the First-tier Tribunal. He sought to rely on the judgments in South Bucks District Council & anor v Porter [2004] UKHL 33 ( Porter ) and Department for Business and Trade v Information Commissioner and Montague [2023] EWCA Civ 1378 ( Montague ) for his submission in this regard. He argues that Parliament did not intend for a public authority to have to conduct a 'conjectural' process in relation to the application of the public interest test. He also argues that Parliament could not have intended a situation where a requester does not know the public authority's position and is therefore unable to make an informed decision about whether to complain under section 50 of FOIA or to lodge an appeal pursuant to section 57.

18. The appellant provided a list of issues he seeks to have addressed, which are: (i) What is the statutory basis for a 'hypothetical public interest test'? (ii) If the tribunal finds that section 23(1) is engaged, then there is no information held which engages section 24(1) , as the two exemptions are mutually exclusive, so what is the statutory mechanism for the public authority to also rely on section 24(1) ? (iii) If there is no information held which engages section 24(1) , there is no basis on which to conduct a public interest test. How is it physically and legally possible to test nothing? (iv) Having tested nothing, how can there be a result of the test? (v) The guidance suggests that the public interest will always favour maintaining the exemption. Does this amount to predetermination and if so, is it lawful? (vi) Are there any other situations where a public authority can rely on exemptions in the alternative, for example sections 30 and 31 or sections 35 and 36 of FOIA? (vii) in a boundary case, can a public authority rely on sections 23 and 24 and/or sections 30 and 31 in the alternative? (viii) Does the use of a masking exemption comply with the duty in section 17(1) to specify the exemption in question? (ix) Is the exemption in question the active exemption or a masking exemption? (x) What part does open justice play in FOIA? (xi) How could Parliament have intended that a requester must decide whether to complain to the Commissioner or appeal to the tribunal without knowing which exemption is relied on by the public authority? (xii) Can a public authority mask the active exemption with more than one masking exemption and what, if any, is the limit of masks?

19. We have not gone through and answered these questions one by one because we have focused on the issues that arise in this appeal. Some of the questions the appellant asks are not within the scope of this appeal and it is inappropriate for us to address them. Others are only indirectly relevant.

20. The issues in this appeal are: (i) Was the Cabinet Office entitled to rely on both section 23(1) and section 24(1) in the alternative? (ii) If so, were those exemptions correctly applied? The hearing

21. The appellant appeared remotely by audio link only at his request. There was no objection to this.

22. The hearing consisted of an OPEN and a CLOSED session. There was no oral evidence in either the OPEN or the CLOSED session. We heard submissions from the appellant and Mr Knight in the OPEN session. The appellant had confirmed at the start of the hearing that he is not concerned with the information itself, but with the legal arguments in relation to the application of sections 23 and 24 in the alternative. He stated that a gist of the CLOSED session was unlikely to assist him. We nevertheless considered whether there was anything that should be provided by way of a gist and determined that there was not, other than to say that Mr Knight made submissions about the justification of the use of masking and the application of the exemptions with reference to the evidence. The law

23. Sections 23 and 24 of FOIA provide where relevant:

23. Information supplied by, or relating to, bodies dealing with security matters. (1) Information held by a public authority is exempt information if it was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).

24. National security (1) Information which does not fall within section 23(1) is exempt information if exemption from section l(l)(b) is required for the purpose of safeguarding national security. Findings and reasons Was the Cabinet Office entitled to rely on section 23(1) and section 24(1) in the alternative?

24. The principles relating to section 23 of FOIA are set out in detail by the Upper Tribunal in Commissioner of the Police of the Metropolis v Information Commissioner & Rosenbaum [2021] UKUT 5 (AAC) ( Rosenbaum ) and there is no need to set them out here. We have had regard to them in reaching our decision. Similarly, the principles in relation to section 24 are also well-established and were approved by a three-judge Presidential panel of the Upper Tribunal in Foreign, Commonwealth and Development Office v Information Commissioner & Williams & Wickham-Iones & Lownie [2021] UKUT 248 (AAC) ( Williams ).

25. The appellant has a clear belief that the decision in Williams is wrong; however, as was pointed out on behalf of the Cabinet Office, the appellant was a party in Williams and did not seek permission to appeal to the Court of Appeal. One of the other parties did seek permission to appeal, but it was refused. The decision of the Upper Tribunal therefore remains authoritative and is binding on us .

26. The appellant seeks to challenge the Upper Tribunal's decision in Williams on the basis that it was wrongly decided. He contends that we should not follow it in reaching our decision. With respect to the appellant, we reject his arguments. The decisions of the Upper Tribunal are binding on us unless and until overturned by the higher courts. Nothing in any of the case law cited to us demonstrates that Williams was wrongly decided or provides a lawful basis on which we may depart from it.

27. The appellant argues that the ability to specify an exemption which does not apply is not compliant with the public authority's duty pursuant to section 17 of FOIA. The appellant relied on a skeleton argument (with permission) which was relied on in EA/2020/0142 (we note that this is the First-tier Tribunal's reference in the case of Lownie ). This issue was dealt with by the Upper Tribunal in Williams . It found that a notice which specifies sections 23 and 24 in the alternative complies with the requirement to specify the exemption in question. The Upper Tribunal held that this was the case where some information is covered by section 23 and some is covered by section 24 and where the information falls exclusively within either section 23 or section 24 . In reaching that conclusion the Upper Tribunal applied the ordinary meaning of the words and a purposive construction to the statutory test.

28. In his oral submissions the appellant emphasised the words 'exemption in question' and submitted that specifying more than one exemption could not satisfy the requirement to specify the active exemption, i.e. the one which in fact applies. The Upper Tribunal expressly rejected this position in Williams , finding that 'specifies' means no more than 'cites' or identifies' and that there was no substantive obligation contained in section 17(b)(1) that a public authority must specify only a valid or in the appellant's words an 'active' exemption. The Upper Tribunal also considered that section 17 must not be construed in isolation, but alongside and in harmony with the other statutory provisions of the scheme. In particular, it held that it is necessary to have regard to the intention of Parliament to afford a wide degree of protection for information relating to security bodies. The Upper Tribunal pointed out that in cases involving sections 23 and 24, it is clear to anyone reading the decisions that they may not receive certain information because it is information supplied by, or relating to, bodies dealing with security matters, or is exempt from disclosure on national security grounds. They would not know which of the exemptions applied, but there would be nothing untrue or misleading.

29. The appellant asked whether it would be possible for a public authority to rely on pairs (or more) of other exemptions for the purposes of masking which one in fact applies. This is a question that does not arise in this appeal. We have settled case law relating to the two exemptions relied on in this case and whether it might be possible in a different context is irrelevant. Mr Knight noted that the use of sections 23 and 24 in the alternative arises in the important context of national security. The appellant also asked whether it is possible for a public authority to use more than one exemption to mask the application of the applicable exemption. This does not arise in the present appeal. We are concerned only with the use of sections 23(1) and 24(1) in the alternative.

30. The appellant argued that there is a detriment or disadvantage to requesters in not knowing which of the exemptions relied on in fact applies. He submitted that it was difficult to make a decision as to whether to make a complaint pursuant to section 50 of FOIA or whether to appeal to the tribunal pursuant to section 57. He noted that if it was the case that it was clear that section 23 applied, there might be very little merit in challenging that decision, as the public interest in withholding the information will always be significant. The same might not be true in respect of a case where section 24(1) applied.

31. This too was considered by the Upper Tribunal in Williams . It was acknowledged that there may well be some detriment to requesters, as they are effectively forced to address both exceptions and make arguments as to why they should not apply instead of being able to focus their efforts on the exemption which is in fact in play. It found however that the purpose of masking, i.e. protecting national security, outweighed any practical consequences for requesters. None of the appellant's submissions persuade us that this aspect of Williams was wrongly decided.

32. The appellant did not make oral submissions on the following point, but we note that submissions in relation to the right to a fair trial are made in the skeleton argument on which he relies. The appellant argues that he could not have a fair hearing with reference to article 6 of the ECHR if he had to mount hypothetical arguments about one aspect of the public authority's decision which did not reflect its true position. This was addressed by the Upper Tribunal in Williams , having had regard to relevant jurisprudence. The Upper Tribunal held that the right of access to information in English law did not engage a civil right; and even if it did, it was unclear as to how the FOIA scheme breaches any right to a fair trial given the independent scrutiny which both the Commissioner and the First-tier Tribunal provide. We agree and nothing in the appellant's submissions persuades us that we can or should depart from this position.

33. The appellant asked two questions about how the tribunal can give reasons for its decision without giving away which of the exemptions apply. He was essentially asking how the tribunal can give adequate reasons for its decision. This is a question that was dealt with by the Upper Tribunal in Lownie v Information Commissioner and the FCDO [2024] UKUT 116 (AAC) ( Lownie ). In Williams , the Upper Tribunal remitted the appeal of Dr Lownie to the First-tier Tribunal. The decision in Lownie , is the appeal to the Upper Tribunal against the decision made on remittal.

34. In Lownie the First-tier Tribunal provided reasons for its decision that either section 23 or section 24 applied. The reasons were given in a closed decision which was not provided to Dr Lownie. He argued that the First-tier Tribunal had failed to comply with its duty to give reasons. The Upper Tribunal rejected the argument on the basis that if it was correct, the duty to give reasons undermines the Presidential panel (in Williams ), which cannot be right in principle and is contrary to the provisions of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Procedure Rules 2009 which govern the giving of reasons. Rules 38(2), 14(10), and 14(9) are all relevant and when read together provide that the First-tier Tribunal must give reasons for its decision, but without undermining the prohibition on disclosure contrary to the interests of national security. Given the decision of the Upper Tribunal in Williams , the First-tier Tribunal in Lownie was under a duty not to disclose whether it relied on section 23 or section 24 . We are in the same position. Giving reasons that would disclose the relevant exemption would undermine the prohibition on doing so. This is the authoritative position on the point and is not undermined by the appellant's submissions in relation to the case of Porter , which was in a different context.

35. The appellant was concerned about the application of a 'hypothetical public interest test'. Mr Knight accepted that to the appellant it may appear hypothetical, but in fact it is not. In a case where masking is used, the premise is that one of the exemptions is correctly engaged, which the tribunal tests, even if the appellant is not privy to all of the CLOSED facts and evidence.

36. The tribunal's task is to decide which, if any, of the exemptions were correctly applied. If none were correctly applied, then the tribunal is bound to say so. A public authority cannot mask the incorrect use of one exemption with use of another.

37. The appellant asked what role open justice plays in FOIA. This is a reference to paragraph 25 of the First-tier Tribunal's decision in Rights & Security International v Information Commissioner and the Home Office [2024] UKFTT296 (GRC) ( RSI ). In determining whether masking was appropriately applied, the tribunal must consider the reasons for it. In RSI the tribunal that stated this requires it to be independently satisfied that masking which exemption applies must be in the public interest. What the tribunal does at paragraphs 51 to 54 of its decision is make clear that it is not applying a public interest test, which in the FOIA regime has a specific meaning, but is saying that the use of masking must be justified.

38. The appellant relied on the decision of the Court of Appeal in Montague in support of his arguments in relation to section 17 of FOIA. In particular, he relies on the final sentence of paragraph 43 of the judgment which states: In that context, section 17(1) is clearly concerned with ensuring that the individual concerned knows the specific provision (or provisions) conferring exemption upon which the public authority is relying.

39. The decision post-dates that of the Upper Tribunal in Williams . The appellant contends that Montague should be interpreted as overturning Williams . Mr Knight submitted that nothing in Montague , including this excerpt, overrides what the Upper Tribunal held in Williams . He pointed out that the Court was concerned whether the public interest in two or more exemptions could be assessed in combination, i.e. aggregated, in determining whether the public interest in disclosure is outweighed. He contended that the Court of Appeal simply restates the statutory language which ensures that the requester knows which provision applies. He submitted that the requester knows which provision applies, even where both section 23 and section 24 are relied on, because one of them must apply, even if the other does not.

40. In summary, we find that the position as set out in Williams is what we must follow in determining whether the respondent was entitled to rely on both sections 23 and 24 in the present case.

41. Having considered the CLOSED evidence, we are satisfied that specifying sections 23(1) and 24(1) in the alternative is necessary in order to avoid adverse consequences of a significant nature. None of our reasoning can be publicly disclosed. Were the exemptions correctly applied?

42. We find that the exemptions were correctly applied.

43. We are unable to set out our reasons in respect of the application of the exemptions in any detail in this OPEN decision. We note that the appellant did not seek to make any arguments on this point. Notwithstanding this, we do wish to record the fact that we considered the CLOSED evidence and satisfied ourselves that the Cabinet Office did in fact apply the exemptions correctly. Conclusion

44. For all of these reasons, it follows that the appellant's appeal falls to be dismissed.