The Data Brief

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

Witholding information concerning the UK’s nuclear capability

5 August 2021

Burt v Information Commissioner and Ministry of Defence EA/2019/0038

The FTT upheld the MOD’s appeal, allowing it to withhold information under FOIA concerning the investigations and reports of two regulators, the Defence Safety Agency (DSA) and the Defencen Nuclear Safety Regulator (DNSR). Mr Burt sought copies of the DSNR’s annual assurance report and specific information which had been redacted from the DSA’s equivalent document. The MOD successfully relied upon the prejudice-based exemptions in s24(1) (national security), s26(1) (defence) and s27(1) (international relations).

The judgment provides two particular points of interest.

First, Judge Hughes highlighted that the MOD’s case that it should be allowed to withhold this security sensitive information from the public was essentially no different from the arguments any business would want to make after providing confidential information to its regulator. The FTT held, given examples of solicitors and motor car designers, that in each case “while there is a requirement to give access to the regulator so that assurance can be given to the public as to the adequacy of [the business]…. weighing against that there will be some obligations on the regulator in the public interest to maintain the confidentiality of what has been inspected.”

Secondly, at a fact specific level, the FTT “observed in open session major events of the past decade show that the international situation must have changed by a consideration of the increasingly assertive risk taking by Russia”, finding that “it is clear therefore that the actions of the Russian state indicate a more aggressive posture militarily as well as a more aggressive targeting of the UK by Russian intelligence”. That changing international picture justified the MOD adopting a more cautious approach to disclosure now than they had previously done, in other years, with material relating to similar topics.

We note that the hearing took place in December 2019, and the matter is recorded as having been considered in September 2020. However, the judgment was only published on Bailii in the last month. One can only imagine that it went through a lengthy security checking process.

Further reading

Burt v ICO and MOD

The Data Brief

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.

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