Dudgeon v Information Commissioner & Anor

In an information-rights appeal, the First-tier Tribunal may use a closed-material procedure which excludes both the requester and the requester’s legal representative. A special advocate is not required where the tribunal can fairly and effectively test the closed material and give sufficiently informed reasons.

For Freedom of Information Act 2000 section 23, information may relate to a listed security body even where it reveals that the body did not supply information. The statutory language is broad but purposive. The tribunal must ask whether the requested information is so remote from a security body that section 23 does not apply. Where the connection is not remote, a public authority may maintain a neither-confirm-nor-deny response under sections 23(5) and 24(2).

The appellant requested internal papers concerning the appointment, terms of reference and powers of a panel overseeing aspects of Operation Stafford, a Police Service of Northern Ireland investigation into serious UVF crime.

The Police Service disclosed a press statement but otherwise relied on exemptions in the Freedom of Information Act 2000. The Information Commissioner upheld the section 30 refusal and the neither-confirm-nor-deny response under sections 23(5) and 24(2). The First-tier Tribunal dismissed the appellant’s appeal in a decision promulgated on 15 April 2013 and amended on 3 May 2013, after considering closed material.

The Upper Tribunal considered whether the closed procedure was lawful without the appellant’s counsel or a special advocate, and whether the national-security exemptions had been applied too broadly.

1. The appeal was dismissed on both grounds. The First-tier Tribunal did not err in law by holding a closed session, excluding the appellant and his counsel, or declining to appoint a special advocate.

2. Browning v Information Commissioner and Department for Business, Innovation and Skills [2014] EWCA Civ 1050 established that the First-tier Tribunal Rules permit such a procedure in freedom-of-information appeals. The procedure is lawful unless, in the circumstances of the case, the tribunal cannot fairly and effectively discharge its investigatory function, test the closed material, and give sufficiently informed reasons. The Information Commissioner’s role and counsel’s ability to test the public authority’s case are material safeguards. The later enactment of the Justice and Security Act 2013 could not affect the lawfulness of the First-tier Tribunal’s earlier decision.

3. Section 23 of the Freedom of Information Act 2000 is an absolute exemption. Section 23(5) may engage where confirmation or denial would disclose information relating to a listed security body, including the informative fact that such a body had not supplied relevant information. The expression “relates to” has a broad but purposive scope. A remoteness test prevents the exemption extending to information with no sufficiently proximate connection to a security body.

4. The requested material concerning the panel was not so remote from security bodies as to fall outside section 23. The First-tier Tribunal was entitled on the evidence, including closed material, to maintain the exclusion of the duty to confirm or deny. It was also entitled to find that section 24(2) was engaged and that the public interest in safeguarding national security outweighed the interest in disclosure.

5. The Tribunal’s observations on precedent in the three United Kingdom jurisdictions were unnecessary to the result. They indicated that an appellate decision binds only within its own jurisdiction, although a decision on identically worded United Kingdom legislation should ordinarily receive great respect and may be followed as a matter of comity.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the information requester’s appeal on 19 September 2016.
• First-tier Tribunal: dismissed the appeal from the Information Commissioner’s decision. Its open decision was promulgated on 15 April 2013 and amended on 3 May 2013.
• Information Commissioner: by a decision of 15 May 2012, upheld the Police Service’s reliance on disclosure exemptions and its neither-confirm-nor-deny response.