REFUSING STUDENT VISAS DUE TO WMD CONCERNS: NEW NATIONAL SECURITY DECISION

March 9th, 2012 by Robin Hopkins

Mahmud Quayum (on behalf of the Camden Community Law Centre) v IC and FCO (EA/2011/0167) is the second First-Tier Tribunal decision in recent weeks on section 24 of FOIA (national security). The other is Summers, on which see Anya’s post here. In both cases, the Tribunal has found the exemption to be engaged and the public interest to favour its maintenance.

Quayum concerned the Academic Technology Approval Scheme. The Scheme, introduced in November 2007, aims to prevent the spread of knowledge and skills useful in the proliferation of weapons of mass destruction. All students from outside the EEA and Switzerland who wish to embark on certain designated post-graduate courses must apply to the FCO’s Counter Proliferation Department for an ATAS certificate before they apply for a student visa. The requester expressed concern that, in some cases, the applicant’s nationality could count decisively against them in a manner that breached equalities legislation. He requested details of refused applications, broken down by applicants’ nationalities and proposed study subjects. He argued that unsuccessful applicants lacked adequate rights of appeal, that much information about the scheme (as well as about countries who were a particular concern from a WMD perspective) was already public, and that non-disclosure would foster “an atmosphere of secrecy over openness”. As usual with s. 24 cases, those arguments went both to the engagement of the exemption and to the public interest.

The Tribunal found those arguments insufficient in both respects. The Equality Act 2010 contains an exemption for national security matters (s. 192). While there was no formal right of appeal, unsuccessful applicants could seek a review of refusals; this dispelled concerns about a “surreptitious mechanism”. The information in the public domain was materially different to that which had been requested. The Tribunal recognised that disclosure would assist in the transparency of an arguably controversial Scheme, but found this to be outweighed by the risk of disclosure undermining the effective operation of an important national security measure, including by discouraging universities (who risked being identified from the disputed information) from co-operating with the Scheme.

Regarding the approach to s. 24, the following extracts from the decision are worth noting:

“… national security is predominantly the responsibility of the government and its various departments. The Second Respondent has contended, correctly in the Tribunal’s view, that the Tribunal must at least initially afford due weight to what is regarded as the considered view of such departments, even though the exemption entails an element of public interest and the balancing test. In particular, and again the Tribunal endorses this approach, particular weight should be afforded to the views of the government or its appropriate department with regard to its or their assessment of what is required to safeguard national security in any given case and the prejudice likely to result from disclosure” (paragraph 43), and

“.. the Tribunal is equally firmly of the view in accepting the contention advanced by the Second Respondent that the particular weight to be applied in favour of maintaining the exemption will be proportionate to the severity of the perceived threat. Thus, to take the point which is in issue here it can with some justification, in the Tribunal’s judgment, be argued that since the proliferation of WMD would constitute one of the severest threats to the security of the state, given its potential wide-ranging effect, so must the countervailing public interest in disclosure be a weighty one, such that disclosure becomes a viable option. The Tribunal stresses that nothing that has just been said in any way converts the present exemption into an absolute one” (paragraph 44).

Finally – as is often the case of late – the requester sought to rely on Article 10 ECHR. Interestingly, the Tribunal in this case observed that Article 10 would make no difference to the analysis, given the checks and balances built into the meaning of s. 24 and the public interest test.

CAMPAIGN AGAINST ARMS TRADE – SECTION 27

November 27th, 2011 by Rachel Kamm

The First Tier Tribunal (Information Rights) has been considering international relations in Campaign Against Arms Trade v Information Commissioner and Ministry of Defence, EA/2011/0109.

The Campaign Against Arms Trade contacted The National Archive by email on 22 May 2009 to request access to files held under reference nos. DEFE68/133 and DEFE68/136. File 133 was entitled or described as relating to the “[MOD]: Central Staff: Registered Files and Branch Folders: sale of arms to Saudi Arabia”. The file was said to be made up predominantly of “telegrams, memos and general correspondence to deal with the negotiations which took place during 1971/72 regarding the Saudi Arabian Air Defence Program (SADAP)”. File 136 was stated as dealing with the follow-up to the Saudi decision not to renew a contract for the training and maintenance of aircraft operated by the Royal Saudi Air Force with the British firm, Airwork, but to give it to the Pakistani Air Force instead.

The National Archive released the files with redactions and invoked section 27(1) and section 27(2) of the Freedom of Information Act 2000 (FOIA).  Section 27(1) provides that “Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice –(a) relations between the United Kingdom and any other State, (b) relations between the United Kingdom and any international organisation or international court, (c) the interests of the United Kingdom abroad, or (d) the promotion or protection by the United Kingdom of its interests abroad.” The MoD relied on (a), (c) and (d) of section 27(1). They also relied section 27(2), which provides that  “Information is also exempt information if it is confidential information obtained from a State other than the United Kingdom or from an international organisation or international court”. Both of these are qualified exemptions.

The Information Commissioner found that the exemptions in sections 27(1)(a), (c) and (d) and also section 27(2) were engaged. Having considered the balance of the public interest, he ordered limited disclosure of the previously redacted material. The appellant did not challenge this decision with respect to section 27(2) and therefore the Tribunal’s decision is only concerned with section 27(1).

The Tribunal considered the decision of Gilby v Information Commissioner and Foreign & Commonwealth Office (EA/2007/0071, 0078 and 0079).  The Tribunal commented that it was not bound by Gilby but that it was following the same general approach: ”If corrupt activities on the part of UK officials are evident from the papers, as defined in paragraph 59 of the Gilby decision, there is a strong public interest in disclosure“. However, it had “real difficulty in applying a workable and justifiable approach to partial disclosure of documents through redaction“.

The Tribunal concluded that section 27(1) was engaged and that the Commissioner had properly applied the public interest considerations. It rejected the argument that, given the level and extent of disclosure in the wake of the Gilby decision and indeed in another context, disclosure of much although not all of the requested information would not necessarily lead to an unfavourable reaction on the part of Saudi Arabia.

Interestingly, the Tribunal commented on its approach where the parties have agreed to an appeal being determined on the papers without a hearing. Where the parties so consent, the Tribunal ”is firmly of the view that it must therefore approach this appeal with a proper sense of proportion and also with a due sense and degree of proportionality. The costs which would be attendant on a more protracted exercise means that a minute dissection of what is a substantial body of information cannot properly be justified at least in the present case and the Tribunal so finds“. The parties should bear this comment in mind, when deciding whether or not to request an oral hearing of an appeal.

FROM NAKED PHOTOS TO NUCLEAR ENRICHMENT: ROUNDUP OF NEW TRIBUNAL DECISIONS

September 26th, 2011 by Robin Hopkins

The past week saw a slew of new decisions from the First-Tier Tribunal. Here is Panopticon’s highlights package.

Sections 41 (information obtained in confidence) and 43 (commercial prejudice)

In DBIS v IC and Browning (EA/2011/0044), the requester (a Bloomberg journalist) had sought information from the Export Control Organisation in connection with licences issued for the exporting to Iran of “controlled goods” – explained by the Tribunal as “mainly military, dual use (potentially military), equipment designed for torture or repression or sources of radio-activity”. The relevant public authority, the Department for Business, Innovation & Skills, refused the request, relying on sections 41 and 43. The IC found for the requester on the narrow basis that, whilst disclosure would result in a breach of confidence, no commercial detriment would be suffered by the licence applicants as a result. Subsequent evidence from the Department persuaded the IC to change position and support the appeal, which was resisted by the applicant. In a decision which turned on the evidence, the Tribunal allowed the appeal, and found both sections 41(1) and 43(2) to be effective.

Section 42 (legal professional privilege)

Two recent decisions on this exemption. Both saw the Tribunal uphold the refusal, applying the established approach under which this exemption has a strong in-built public interest. Szucs v IC (EA/2011/0072) involved an FOIA request about an earlier FOIA request (the appellant requested the legal advice and associated documents provided to the Intellectual Property Office about how to deal with a previous FOIA request made by the appellant’s husband). Davis v IC and the Board of Trustees of the Tate Gallery (EA/2010/0185) is eye-catching primarily because it concerned the Tate’s legal advice concerning the inclusion in an exhibition of a photograph of the actress Brooke Shields, aged ten, naked, entitled “The Spirit of America” (the Tate had initially proposed to include this in an exhibition, but ultimately withdrew the photograph).

Section 40 (personal data)

Beckles v IC (EA/2011/0073 & 0074) concerned the identifiability of individuals from small sample sizes, in the context of information about dismissals, compromise agreements and out-of-court settlements. The appellant asked Cambridge University for information on (among other things) the number of employees who received post-dismissal settlements. The answer was a low number. He asked for further details concerning the settlement amounts, rounded to some appropriate non-exact figure. This, said the Tribunal (applying the Common Services Agency/Department of Health approach to identifiability from otherwise anonymous figures) was personal data, the disclosure of which would be unfair. Its reasoning is summed up in this extract:

“Information as to the settlement of a claim made by an identified individual relating to his or her employment is undoubtedly personal data. The question is whether the four individuals or any of them could be identified if the information requested were disclosed, even in approximated form…. Cambridge University is made up of a large number of much smaller academic or collegiate communities. It is likely that a number of colleagues or friends will be aware that a particular individual settled a claim with the University within the time-scale specified. They will be aware of the general nature of that person`s employment. This is a small group of claims in a relatively short period. In the form originally requested it is readily foreseeable that one or more of the four will be identified.”

Sections 24 (national security) and 27 (international relations)

Burt v IC and MOD (EA/2011/0004) concerned information gathered by staff of the UK Atomic Weapons Establishment on an inspection visit to a United States atomic energy facility, as a learning exercise regarding the proposed development of an enriched uranium facility at Aldermaston. The US had expressed its desire to maintain proper confidence in what it regarded as a sensitive area. The MOD refused the request, relying on sections 27 and 24. By the time of the appeal, only a small amount of information had not been disclosed. This was primarily of a technical nature, containing observations about the operation of plant, machinery, procedures and processes at the US facility.

The Tribunal upheld the MOD and Commissioner’s case as regards the outstanding material. As regards section 27, the Tribunal applied the principles from Campaign against the Arms Trade v IC and MOD (EA/2006/00040). It observed, however, that confidential information obtained from another country would not always be protected by section 27: it was “perhaps axiomatic that the foreign State will take the United Kingdom as it finds it including but not limited to the effect of its own domestic disclosure laws. It follows that there may well be cases where information otherwise imparted in confidence from a foreign State to a United Kingdom authority would need to be considered on its own merits as to whether some form of disclosure should be made or ordered whether under FOIA or under similar analogous legislation or principles such as the UK data protection principles.”

As regards section 24, the Tribunal applied Kalman v IC and Department of Transport (EA/2009/0111) (recourse to the exemption should be “reasonably necessary” for the purpose of safeguarding national security), and Secretary of State for the Home Department v Rehman [2003] 1 A 153 (the threat to national security need not be immediate or direct).

Burt is also an example of a “mosaic effect” case: taken in isolation, the disputed information may appear anodyne, but the concern is with how it might be pieced together with other publicly available information.

Section 14(1) FOIA (vexatious requests)

Dransfield v IC (EA/2011/0079) is an example of the Tribunal overturning the Commissioner’s decision that section 14(1) had been engaged (for another recent example, see my post here). As with many such cases, the history and context were pivotal. Given that it is the request, rather than the requester, which must be adjudged to be vexatious, how should the context be factored in? The Tribunal gave this useful guidance:

“There is, however, an important distinction to be drawn between taking into account the history and context of a request, as in the cases referred to above, and taking into account the history and context of other requests made by a requester or other dealings between the requester and the public authority. The former is an entirely proper and valid consideration. The latter risks crossing the line from treating the request as vexatious, to treating the requester is vexatious. That line, in our view, was crossed in the present case.”

Robin Hopkins

Reforming the Information Tribunal

August 5th, 2009 by Timothy Pitt-Payne QC

A letter was circulated yesterday (4th August) to “stakeholders” of the Information Tribunal, giving information about the implications for the Information Tribunal of the new unified tribunal structure.

The new structure involves a system of First Tier tribunals and Upper Tribunals. The Information Tribunal will be one of a number of tribunals that transfer into the General Regulatory Chamber (GRC), one of the First Tier tribunals.

According to the letter, from January 2010 information rights cases will generally be heard in the GRC, with an appeal to the Administrative Appeals Chambers of the Upper Tribunal on a point of law. However, in some circumstances cases will be heard in the first instance in the Upper Tribunal. This will be where the appeal is complex, unusual, or particularly important. In additional national security appeals (under section 28 of the Data Protection Act 1998 or section 60 of the Freedom of Information Act 2000) will go straight to the Upper Tribunal.

The procedural rules for those tribunals moving into the GRC in September 2009 have now been finalised and laid before Parliament. This includes the Charity Tribunal, the Estate Agents Appeals Panel and the Consumer Credit Appeals Tribunal. For those jurisdictions moving to the GRC in January 2010 – including the Information Tribunal – any further specific procedural rules will be added by amendment once Parliament has approved the transfer. Approval is expected later this year.

US Information on Guantanamo Detainee to be Kept Secret

February 5th, 2009 by Anya Proops

In a ruling handed down yesterday, the High Court relucantly held that US documents containing information relating to the treatment of Binyam Mohamed, the last recognised British resident to be held in Guantanamo Bay, should be with withheld from publication (Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 152 (Admin); 11KBW’s Karen Steyn appeared on behalf of the Secretary of State). The case is a highly sensitive one as Mr Mohamed alleges that evidence allegedly implicating him in terrorist activity was obtained as a result of torture. It is his position that the withheld information would suport his case on this issue. The Court based its ruling on a statement made by the Foreign Secretary, David Miliband, to the effect that disclosure of the information would pose a risk to intelligence co-operation from the US if it was published and would, as a result, put the UK general public at risk. The judges (Thomas LJ and Lloyd Jones J) made clear in the ruling that they had serious concerns about the position that the goverment was adopting on the question of whether the information should be published, not least because, in their view, the information in question could not itself possibly be described as sensitive US intelligence. However, they went on to conclude that they had no alternative but to refuse publication in light of Mr Miliband’s statement. Notably, Clive Stafford Smith, who represents Mr Mohammed has commented that the judgment is in fact ‘canny’ because: ‘If the judges had ordered the material to be revealed, over the government’s objection, there would have been a protracted appeal and nobody would have learned anything for months or years. Instead, they have placed both the British government and the Obama administration in the immediate and uncomfortable position of having to confess whether they want to cover up evidence of torture.’  In a statement, the White House thanked the UK government ‘for its continued commitment to protect sensitive national security information’. In a statement made in Parliament today, Mr Miliband asserted that the question whether this information should be made public was a decision which only the US could take and that the UK ought not to interfere with those decisions. The ruling highlights the particular difficulties which courts face when dealing with applications for disclosure of information in the face of Government assertions that disclosure will damage national security.

The judgment:

http://www.11kbw.com/judgments/docs/BinyamMohamedvForeignSecretary.pdf

Media coverage

http://news.bbc.co.uk/1/hi/uk_politics/7871226.stm

http://www.guardian.co.uk/world/2009/feb/04/guantanamo-bay-torture

Commentary by Clive Stafford Smith

http://www.guardian.co.uk/commentisfree/2009/feb/05/guantanamo-torture