Freedom of Information Act 2000: Section 23 Exemption

Lownie v. Information Commissioner, FCO and The National Archives [2020] UKUT 32 (AAC) is a recent Upper Tribunal case focusing on the application of s. 23 of the Freedom of Information Act 2000—that is, information which ‘relates to’ security bodies (such as MI5 and MI6). The appeal arose from a request for information on two members of the Cambridge Five spy ring, held by The National Archives, including a vetting file. This was an unusual s. 23 case because, due to the transfer of the information to The National Archives, s. 64 (2) FOIA operated to make the s.23 exemption a qualified one. 

The policy basis for the s. 23 exemption (which ordinarily, but not in this case, operates as an ‘absolute exemption’) is to preserve the operational secrecy necessary in order for security bodies to operate. The Upper Tribunal in APPGER v Information Commissioner & Foreign and Commonwealth Office [2016] UKUT 377 (AAC) determined that the phrase ‘relates to’ should not be construed narrowly and no gloss should be applied to it. However, the Upper Tribunal in Corduroy & Ahmed v Information Commissioner & Attorney General & Cabinet Office [2017] UKUT 495 (AAC) provided seemingly inconsistent guidance on s. 23, including that the potential availability of another qualified exemption under FOIA may undermine reliance on s. 23. 
Judge Markus QC in Lownie confined Corduroy’s approach to its facts and reinforced the APPGER approach which gives due weight to the legislative objectives behind the s. 23 exemption. The possible application of another exemption to the information does not affect whether s. 23 should apply. The appeal was refused, as s. 23 was found to apply to the requested information and the balance of public interest favoured its non-disclosure. Lownie is now the most useful and comprehensible authority on the s. 23 FOIA exemption. 

Alex Ustych
 

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Alex Ustych

Call 2010