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Most unusually, the eight parties to these appeals all agreed on what the outcome should be: that the rights bestowed by s1(1) and s50(1) of the Freedom of Information Act 2000 are rights which can be exercised extra-territorially. Nonetheless, the Registrar of the FTT quite properly took the view that the Tribunal should satisfy itself of its jurisdiction before proceeding.
S1(1) FOIA entitles “any person making a request for information to a public authority” to have written confirmation of whether that information is held and, if so, for that information to be communicated to him, unless an exemption applies. S50(1) FOIA is the right of “any person” who has made a request under s1(1) to apply for a decision from the Information Commissioner.
Notwithstanding the presumption in domestic law that legislation is generally not intended to have extra-territorial effect, the FTT held that FOIA bestowed rights on individuals which could be exercised by a person outside the UK, irrespective of what connections such person has to the UK.
Parliament had not intended to impose a territorial limitation. The presumption against extra-territorial application was weak and could be rebutted. This was not inconsistent with the comity of nations or the established rules of international law. Importantly, although the rights could be exercised by a person who is outside the UK, the rights themselves may only be exercised within the UK. This interpretation was held to further the purpose of FOIA.
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
