Home Office v Information Commissioner & Anor (Final Decision)

The Freedom of Information Act 2000 proceeds from a presumption of disclosure. A direction under section 50(4) that no steps be taken will therefore be justified only exceptionally, and the public authority must show why it is appropriate.

The discretion must be exercised under public law principles and by reference to all relevant circumstances. It may exceptionally be exercised to withhold non-exempt information where its disclosure would necessarily reveal information protected by an absolute exemption. The breadth, purpose and strength of section 23(1), together with the limited incremental value of the requested figure, justified a no-steps order in this case.

The Home Office appealed from the First-tier Tribunal’s decision of 30 January 2013, which had required disclosure of the number of citizenship-deprivation orders made on grounds unconnected with national security. The Tribunal had held that orders made on counter-terrorism or national-security grounds were exempt under section 23(1) of the Freedom of Information Act 2000.

The total number of orders was public. Disclosure of the non-exempt number would therefore permit the exempt number to be calculated. In an interim decision, Home Office v Information Commissioner and Cobain (Interim Decision) [2014] UKUT 0306 (AAC), the Upper Tribunal set aside the First-tier Tribunal’s decision for inadequate reasons and for failing to consider its section 50(4) discretion. The final issue was whether the Tribunal should require disclosure or direct that no steps be taken.

1. Appeal allowed. The Upper Tribunal confirmed its interim decision, set aside the First-tier Tribunal’s decision, and re-made it. It directed, under section 50(4) of the Freedom of Information Act 2000, that no steps be taken to require disclosure.

2. The Act’s starting point is disclosure. A no-steps direction is consequently exceptional, and the resisting public authority bears the burden of showing why it should be made. The section 50(4) discretion must be exercised consistently with public law principles. It must not require unlawful action, and it must be exercised rationally by taking account of relevant considerations and excluding irrelevant ones.

3. The exceptional category is not confined to cases where disclosure would be unlawful or impossible. In an x + y = z case, the Tribunal may decide whether to require disclosure of non-exempt information when that disclosure would necessarily reveal exempt information. The Commissioner’s non-exhaustive checklist was a useful guide, including the interest protected by the exemption, likely harm, the public interest and incremental benefit of disclosure, alternative means of scrutiny, and Parliament’s purpose in creating an absolute exemption.

4. Section 23(1) is a broad, class-based and absolute protection for information relating to the specified security bodies. Its statutory role differs from the qualified national-security exemption in section 24. Its engagement therefore carried substantial weight. Although some related information was public and disclosure would add only marginally to public knowledge, the court did not treat section 23 as a qualified exemption.

5. There was a substantial public interest in scrutiny of deprivation of citizenship. However, the requester already knew the total and the possible range of the exempt and non-exempt figures. The incremental benefit of the precise breakdown was limited. In the exceptional circumstances, the protection afforded by section 23 justified a no-steps order.

6. For clarity when re-making the First-tier Tribunal’s decision, the Upper Tribunal substituted a Decision Notice. It recorded that the counter-terrorism and national-security figure was exempt under section 23(1), while the other figure was not exempt, but required no steps to be taken.

• Upper Tribunal (Administrative Appeals Chamber): allowed the Home Office’s appeal in Home Office v Information Commissioner and Cobain (Interim Decision) [2014] UKUT 0306 (AAC), set aside the First-tier Tribunal’s decision for error of law, and in this final decision directed that no steps be taken under section 50(4) of the Freedom of Information Act 2000.
• First-tier Tribunal (General Regulatory Chamber) (Information Rights): on 30 January 2013 allowed the Home Office’s appeal in part against Decision Notice FS50411501. It treated the counter-terrorism and national-security figure as exempt under section 23(1), but required disclosure of the other figure.
• Information Commissioner: Decision Notice FS50411501, dated 23 May 2012, had required disclosure of the disputed information.