The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

Sections 23 and 24 of FOIA – as you were

18 November 2021

Foreign, Commonwealth & Development Office v Williams, Wickham-Jones & Lownie [2021] UKUT 248 (AAC)

There was a minor shockwave through the security world in November 2020, when a two-judge FTT ruled that sections 23(1) and 24(1) of FOIA could not be relied upon ‘in the alternative’, so as to neither confirm nor deny whether requested information was held and to obscure whether the NCND position was because of s.23 or s.24. This well-established practice, which was supported by the Information Commissioner, was said not to be compliant with s.17 FOIA and the requirement to ‘specify the exemption in question’ in a refusal notice.

But Farbey J, and UTJs Mullan and Wikeley held that this was wrong: the established position of using s.23 and s.24 together to ‘mask’ which exemption was relied on was permissible. Masking permits public bodies to conceal when requested information relates to security bodies in s.23. The idea is to prevent requesters from piecing together a sense of which issues involve s.23 bodies, by reference to whether s.23 or s.24 is used to justify a NCND response.

The case endorses the principles on s.23 set out in Rosenbaum [2021] UKUT 5 (AAC) and also sets out further principles on s.24. The UT held that s.17 is a procedural provision that sets out an administrative process: it does not bind the public authority, who can drop or add to the exemptions specified at a later stage. They held that the requirement to ‘specify’ the exemption relied upon means no more than ‘cites’ or ‘identifies’, so that by relying on both s.23 and s.24 in the alternative, the appropriate exemption is still ‘specified’ even though it is not clear which is truly relied upon. The context – particularly the importance of protecting both information relating to the s.23 bodies and national security – helped them to reach that conclusion, although the UT’s view was that it also flowed from the statutory language. An attempt to argue that Article 10 ECHR and recent Strasbourg decisions compelled a different conclusion met the usual recent fate of such arguments in the FOIA context: rejected by reference to Moss v Information Commissioner [2020] UKUT 242 (AAC), applying binding domestic authority on the issue to the effect that Article 10 does not, as interpreted domestically, confer a right of access to information.

Aaron acts for the FCDO in the conjoined appeals, led by Sir James Eadie QC. He did not contribute to this article.

Further reading

FCDO v Information Commissioner, Williams, Wickham-Jones & Lownie

The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

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