Lownie v Information Commissioner & Anor

For section 64(2) of the Freedom of Information Act 2000, a historical record is in the Public Record Office only when the Office has formally accepted it into custody through its proper archival process. Mere physical delivery or temporary presence does not suffice.

Where national-security exemptions may be relied on in the alternative, the First-tier Tribunal may give closed reasons if open reasons would reveal the exemption relied on. Its duty to provide written reasons is expressly qualified by its duty to avoid disclosure contrary to national security.

Dr Lownie, an historian, requested information held by the Foreign, Commonwealth and Development Office in files bearing the name of Guy Burgess. The Office refused disclosure under sections 23 and 24 of the Freedom of Information Act 2000, while declining to identify which exemption applied.

Following an earlier Upper Tribunal decision on reliance on those exemptions in the alternative, the case was remitted to the First-tier Tribunal. On remittal, the tribunal held that a file briefly sent to the Public Record Office had not become a record held there, and gave closed reasons for its conclusion that either section 23 or section 24 applied.

The appeal raised whether the record was in the Public Record Office for section 64(2), whether the tribunal had given adequate reasons, and an unargued Article 10 point preserved for a possible further appeal.

1. Appeal dismissed. The First-tier Tribunal’s decision involved no error of law.
2. Section 64(2) of the Freedom of Information Act 2000 makes the section 23 exemption qualified only for information contained in a historical record in the Public Record Office. The expression is not governed solely by a document’s physical location. It concerns whether the Office has formally accepted the record into custody as part of its archival function.
3. The tribunal was entitled to treat accessioning, including at least the initial formal acceptance and arrangements for cataloguing, storage and access, as the necessary minimum process. That construction avoids arbitrary changes in the applicable exemption when a file is temporarily delivered, loaned, returned, sent in error or electronically transmitted. On the facts, the file had never entered that process and had never been in the Public Record Office. Section 23 therefore remained absolute if it applied.
4. Rule 38(2) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 requires written reasons, but is subject to rule 14(10), read with rule 14(9). Where open reasons would disclose whether section 23 or section 24 had been relied on, disclosure would undermine the national-security protection. Closed reasons were therefore lawful and sufficient.
5. The Article 10 ground was not argued and was not determined.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and upheld the remitted First-tier Tribunal decision.
• First-tier Tribunal (General Regulatory Chamber): on 28 April 2023, held that the record had not been in the Public Record Office and upheld the use of closed reasons.
• Upper Tribunal Presidential Panel: in Foreign, Commonwealth and Development Office v Information Commissioner, Williams and others [2021] UKUT 248 (AAC), confirmed that the national-security exemptions could be relied on in the alternative and remitted this case to the First-tier Tribunal.