IN THE UPPER TRIBUNAL			      Case No.: GIA/2230/2012
ADMINISTRATIVE APPEALS CHAMBER

Before:	Mr Justice Charles CP
		Mr Justice Mitting
Upper Tribunal Judge Wikeley

Attendances:

For the Appellant:	Mr Timothy Pitt-Payne QC, instructed by Hogan Lovells International LLP 

For the First Respondent:	Mr Robin Hopkins, instructed by the Solicitor to the Information Commissioner

For the Second Respondent:	Ms Karen Steyn QC and Mr Julian Blake, instructed by the Treasury Solicitor

CASE MANAGEMENT DECISION

1.	The Second Respondent’s Rule 14 application is allowed with the exception of the inclusion of the redacted information identified by the comparison between the open and closed versions of paragraph 33 of Mr Bristow’s statement filed in support of the application.

2.	The Appellant may serve and file evidence and (if so advised) the written argument referred to in paragraph 38 below.  The appeal is to be listed as set out in paragraphs 39 to 41 below.

REASONS

Introduction

1.	This is an appeal by the All Party Parliamentary Group on Extraordinary Rendition (“APPGER”) against the decision of the First-tier Tribunal (“the FTT”), which for the most part dismissed APPGER’s original appeals against three Decision Notices issued by the Information Commissioner (“the IC”). The IC, in turn and again for the most part, had upheld the reliance by the Foreign and Commonwealth Office (“the FCO”) on various exemptions under the Freedom of Information Act 2000 (“FOIA”) in response to three batches of requests for information made by APPGER.

2.	The Upper Tribunal gave an interim decision on 11 November 2013.  As a result of that and decisions taken by the parties the remaining issues relate to the requests made concerning Mr al-Rawi and Mr el-Banna and concern nine documents.  By way of example, one of the requests  sought:

“all information relating to the threat to the security of Britain or any other nation posed by Bisher al-Rawi and Jamil el-Banna [and] the work allegedly carried out for the intelligence services by Bisher al-Rawi...”. 

3.	It was common ground that we should not remit the appeal relating to these documents to the FTT and should decide it ourselves.

4.	The FCO contends that: (a) 6 of those documents are covered by the absolute exemption in s. 23 - the security body exemption, (b) one document contains information that has already been disclosed and (c) 2 documents are covered by the qualified exemption in s. 27 - the international relations exemption.  If the arguments in (a) or (b) fail or are not completely successful the extent of the documents to which the s. 27 exemption is relied on and so to which the public interest balance applies would expand.

5.	We held a directions hearing on 23 January 2014 which lasted from 10.30 to 5 p.m. The hearing was in open except for a closed session from 2.55 to 4.00 p.m. The applications before us were:

(1)	an application by the FCO under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698; the “Rules”) relating to closed material, and
(2)	an application by APPGER that it should be permitted to argue that the date at which the public interest assessment should be carried out is different to the date at which it was considered by the FTT in this case. 

The Rule 14 application

6.	This was based on an open and closed version of a witness statement of Laurie Bristow (“Mr Bristow”) who is a member of the diplomatic service and the senior management structure of the FCO.  Paragraphs 25 to 36 of his statement read as follows:

25	Whilst the Binyam Mohamed litigation concerned the disclosure of information provided on intelligence channels, one cannot easily distinguish between a response by the US to the release of intelligence liaison material and the release of the type of confidential communications that are contained within the Disputed Information.  This is particularly so in light of the subject matter of the Disputed Information, which in all cases concerns the detention of individuals known to the Security Service or the threat they pose and, in six of the eight documents, the information itself clearly relates to a security body (for which the FCO has applied the s. FOIA exemption).
26	I am able to provide a CLOSED example to support this assessment and would like to assure the Appellant that the release of private communications of the type requested has caused damage in relations with the United States. [ REDACTED ]
27	[ REDACTED ]
28 	[ REDACTED ]
29	[ REDACTED ]
30	[ REDACTED ]
31	[ REDACTED ]
32	These concerns regarding the protection of both intelligence material and US diplomatic material following the Binyam Mohamed litigation were reiterated on a visit to Washington by members of the Intelligence and Security Committee between 28 February and 2 March 2011.  I am able to describe in  CLOSED a conversation from that meeting. [ REDACTED ].  This visit, though not the details of this exchange, is reported in the Open ISC Annual Report 2010-2011, presented to Parliament by the Prime Minister in July 2011 [LB5].
33	Prior to the hearing of the appeal in the present case before the First Tier Tribunal my predecessor, Jonathan Sinclair, spoke with Jay Alan Liotta, a senior official in the US Department of Defense.  I am able to describe in CLOSED a conversation from that meeting. [ REDACTED ].
34	In light of the above are my own experience as a Senior Civil Servant, I assess that public disclosure of any of the documents containing notes of conversations or actual conversations in respect of which s.  27 has been claimed would further undermine US confidence in its exchanges with the UK, including in the field of intelligence sharing.
35	The clearest response from the US would be diplomatic, affecting the frankness and quality of diplomatic exchanges. [REDACTED]. 
36	However I also assess that the release of such documents would complicate the intelligence sharing relationship and give rise to a real risk of a further reduction in the flow of intelligence.  I do not suggest that damage to the intelligence sharing relationship would be an inevitable consequence of the release of any diplomatic communications with the US, regardless of context and content.  However, the risk in the present case arises specifically because the material concerns the fields of intelligence, counter-terrorism and detention of individuals who are assessed to be Islamic extremists.  I believe disclosure will be particularly risky in a context such as this which is so closely akin to the Binyam Mohamed litigation.

7.	After we had heard oral submissions in open and closed session and read the redacted parts of Mr Bristow’s statement and the relevant exhibits we informed APPGER as follows: 

In closed session we have asked and received answers to the questions you invited us to pose.  We are of the view that the redactions shown in paragraphs 26 to 32 and 35 of Mr Bristow’s witness statement and the documents supporting them and exhibited thereto are an example that strongly supports the conclusion asserted in paragraph 36 of Mr Bristow’s statement and we can give no further gist of the redacted material.

The redaction at the end of paragraph 33 of Mr Bristow’s statement is an expression of view that does not add to what is in the public domain and the FCO are entitled to withdraw it.  

The remainder of the redactions and the closed exhibits are or contain a description of the documents that are the subject of this appeal. 

8.	The open argument.  We heard this without reading the material that the FCO wanted to put before us on a closed basis.

9.	It was common ground before us that we had power to make the order sought pursuant to and under Rule 14.  We respectfully agree with the opening sentence of paragraph 33 of the  judgment of Maurice Kaye LJ in Browning v Information Commissioner  [2014] EWCA  Civ 1050; [2014] 1 WLR 3848 that:
The crucial task is to devise an approach in the in context of the specific case which reconciles the divergent interests of the various parties.
	
This passage reflects the overriding objective, the terms of Rule 14 and the wide range of the subject matter of cases under FOIA.  The remainder of paragraph 33 of that judgment confirms that the interests of the persons who have provided the information sought also have to be taken into account in devising the approach to be taken.
10.	In our view the cases (see for example FCO v Information Commissioner [2013] UKUT 0275 (AAC), the interim decision in this case APPGER v Information Commissioner [2013] UKUT 0560 (AAC) at paragraph 154 and Browning at paragraphs 24 and 32-36) show that the guiding principle in devising the approach to be taken is that:
(1)	Any closed procedure must be justified as being necessary or proportionate to promote the interests of justice in the given case, and 
(2)	after any closed procedure has taken place the tribunal must ensure that as much as possible of the relevant evidence, argument and material considered in the closed procedure is disclosed or described to the party excluded from the closed procedure.
 It follows that we consider that the First-tier Tribunal practice note “Closed Material in Information Rights Cases” gives helpful and appropriate guidance.  We comment on this formulation in paragraph 27 below.

11.	This two stage approach enables a proportionate approach as expressly envisaged by Rule 14(8) and the overriding objective to be taken by tribunals to the manner in which the proceedings are conducted whilst ensuring at the second stage that the principles of open justice are departed from to the least extent possible. 

12.	The issues at stake in this case are such that it merits procedural rigour at all stages and so the preliminary and particularised Rule 14 application that was made.  That procedural approach also warranted the open argument being conducted on the basis that we had not read the material that the FCO wished to put before us on a closed basis so that we could assess the merits of the application for the open reasons given.

13.	The argument identified a difference between the FCO and the Information Commissioner on the one hand and APPGER on the other as to what directions or information the tribunal could make or give about the closed material once we had seen it.  The difference arose in the following possible scenarios, namely after the closed material had been examined on a closed basis (a) the Rule 14 application was refused and (b) the Rule 14 application was granted in whole or in part.  As to (b) a similar situation could arise after the closed material was considered at the substantive hearing.  The FCO and the Information Commissioner submitted that the party advancing the closed material (here the FCO) has a right to withdraw and could exercise that right in both scenarios if the tribunal indicated that the material should be disclosed or gisted and the FCO objected to that disclosure or the terms of the gist.  APPGER invited us to look at the material the FCO wanted us to consider on a closed basis and submitted that once we had done so in both scenarios it was open to us to direct its disclosure or that it should be gisted in a particular way.  In support of this submission, APPGER relied on Rule 15 and the investigative nature and aspects of the tribunal’s jurisdictions and procedure.  The FCO and the Information Commissioner argued that a party should at any time be allowed to withdraw evidence it advanced to support its case and the tribunal could and should put it out of its mind if it did so, for example, to observe a duty of confidence to the provider of the information.

14.	We expressed a preliminary view that we did not accept the submission of the FCO and the Information Commissioner and that if they invited us to see the closed material the FCO was at risk that we would direct its disclosure or that it be gisted in a way they did not agree with.

15.	In the circumstances of this case this exchange prompted a consideration of Rule 14(10) which provides that:

In a case involving matters relating to national security the Upper Tribunal must ensure that information is not disclosed contrary to  the interests of national security 

16.	It is clear from paragraphs 25, 26 and 36 of Mr Bristow’s statement that the example referred to in paragraph 26 engages this rule because it is directed to what we referred to in our earlier decision as an Intelligence Information Sharing Risk arising from the disclosure of diplomatic material (see in particular paragraphs 63-69) and the issues we identified at paragraph 82 namely:
(1)	existing problems concerning the flow of intelligence material and their cause, and

(2)	why disclosure of all of the types of material falling within the two broad categories describing the Section 27 Information on whatever terms, understandings or channels that information was given, would give rise to that risk.

17.	It is common ground that our approach to the assessment of a risk to national security made by or on behalf of the Secretary of State should be that set out in SSHD v Rehman [2003] 1 AC 153 at paragraph 26 per Lord Slynn and paragraphs 48, 49,  53 and 57 per Lord Hoffmann. 
  
18.	It follows that if we accepted the description of the material included in Mr Bristow’s evidence Rule 14(10) would apply and absent an arguable rationality challenge we should accept the view of the FCO that disclosure of the description of the example would be contrary to national security.

19.	It was therefore agreed that we should look at the closed material on the basis that we would so apply Rule 14(10) and if having done so we considered that any disclosure or gisting of what we had seen should take place we would hear further argument from the parties on whether we had the power to do this and if so what disclosure or gisting should take place.

20.	From the open material Mr Pitt-Payne QC for APPGER identified two main strands of information which had been redacted. The first strand concerned statements from the US authorities as to their expectations of confidentiality and the implications of disclosure. He argued that such statements were already in the public domain. If the redacted information was the same, there was no point in it being closed. If it was wider, then it should likewise be in the public domain. The second strand concerned a practical example of what had ensued where there had been past disclosure, apparently in relation to diplomatic material. In the latter context the questions we were invited by APPGER to ask and pursue were whether the disclosure arose in the Binyam Mohammed litigation context and, if not, how close to that national security context? Further, what harm had resulted: was it harm to intelligence sharing or some other harm? Further, and in any event, could the closed material be further gisted? 

21.	As appears from the statement we made after the closed session we accept that the redacted information identified by the comparison between the open and closed versions of paragraphs 26 to 32 and 35 of Mr Bristow’s statement is a description of an example as asserted by Mr Bristow.

22.	It follows that no one could describe it without disclosing matters that impact national security and in our view:

(1)	No arguable challenge to the FCO view that its disclosure would be contrary to national security could be made, and
(2)	the above analysis demonstrates that no further description is necessary or appropriate because if it is to comply with Rule 14(1) it would not add to what Mr Bristow has said.  

23.	As stated in paragraph 33 of Mr Bristow’s statement he is there referring to a conversation.  It is not part of the description of the example described.  Rather, it is an expression by Mr  Liotta of his views in a confidential setting.  

24.	As we stated at the hearing, this expression of view does not add to what is in the public domain.  As invited by APPGER: we considered this material from the viewpoint of whether (a) it could be relied on to support the FCO’s case by bolstering or adding to what has been said in public relating to the views and expectations of the US or the reasoning behind them or (b) it could assist APPGER by giving rise a line of questioning or enquiry or argument.  It does neither.  

25.	So, no issue arises on whether the FCO should be permitted to bolster their case on the views, expectations and likely reaction of the US and the reasons for them by reference to confidential communications which the tribunal has considered in a closed procedure or whether APPGER should be shown or given a gist of the redacted material to assist it in advancing its case.  

26.	In our view, it follows that: 

(1)	the FCO should not be permitted to introduce this evidence in a closed procedure because it adds nothing to what is in the public domain, and 
(2)	the FCO are entitled to withdraw it because it was provided to the FCO in confidence and its disclosure or gisting would not assist APPGER.

27.	It was therefore not necessary for us to hear further argument on whether the FCO had a right to withdraw this evidence even we were of the view that it should be disclosed or gisted (e.g. because it assisted or informed the case of the party excluded from the closed procedure).  If the FCO has such a right the evidence would not be relevant evidence within our formulation of the approach to be applied set out in paragraph 10 above.

28.	The remainder of the redactions and the closed exhibits are or contain a description of the documents that are the subject of this appeal and there was no challenge to them being considered on a closed basis.

29.	We are not going to give any closed reasons because we see no need for them.

The date for the public interest assessment

30.	There was no argument on this before the FTT and it was carried as at 2008 (and on the basis that there was no difference between the position as at the date of the refusal or the internal review of it). This approach accords with existing authority (in particular OGC v Information Commissioner [2008] EWHC 774 (Admin), [2012] QB 98) and is described by the FCO and the Information Commissioner in argument as a concession by APPGER.  In our view, it was not a concession in the sense that the point was raised and conceded, rather it was never raised.

31.	This date of assessment issue has more recently been the subject of consideration by the Upper Tribunal in Information Commissioner HMRC and Gaskell [2011] UKUT 296, [2011] 2 Info LR 11 and APPGER v Information Commissioner   [2011] UKUT 153 (AAC).  It relates to the interpretation of s. 50 of FOIA and in particular the past tense in subsection (1) and its absence in subsection (4).  The existing  authority is to the effect that the use of the past tense in subsection (1) means that the consideration by the Information Commissioner and the FTT (and the Upper Tribunal if it is deciding the point) is an historical one but subsection (4) gives a discretion not to order disclosure if after that assessment date events have occurred that render disclosure contrary to the public interest.  That leaves the opposite possibility namely that refusal to disclose at the historical date was justified but would not be when the Information Commissioner or the tribunal come to consider.  Existing authority is to the effect that they cannot order disclosure as a result of those changes and that they can only be addressed in the context of a new request.  The development of the “safe space” argument has highlighted this issue. 

32.	In DEFRA v Badger Trust [2014] UKUT 0526 (AAC) (dated 28 November 2014) where the appeal was transferred from the FTT to the Upper Tribunal it was observed (at paragraphs 44-48) that the approach to the date of assessment had been doubted and there was a lack of clarity about the date at which the First-tier Tribunal should assess where the public interest lies. In that case the issue was academic because whatever date was taken the answer on the public interest issue was the same.

33.	The observations in the Badger case prompted APPGER to invite us to address the date at which the public interest balance should be carried out on our consideration of the application of the s. 27 exemption.   The common time estimate for that argument was half a day to a day.

34.	Here the potential time difference is seven years but it is not immediately apparent that it would make any difference.  APPGER had invited the FCO to say whether it would make a difference to their evidence on the public interest but had not set out why it asserts that it would or that it might.  It seems to us that as it is APPGER who is seeking to change or expand the focus of the evidence it is incumbent  on them to show why the additional work and cost that would involve is arguably relevant.  In submission it said without supporting argument or evidence that it wished to argue that the time that has passed weakens the public interest against disclosure and that the public interest in favour is strengthened by the difficulties encountered over the years in obtaining information about the subject matter of these requests.  

35.	Whilst keeping their powder dry on whether it would want to put in more evidence if the relevant date was later, the FCO argued that APPGER could have raised the point earlier, it was now too late to do so and if it was allowed to do so this would add to the costs and burdens of what is a long running piece of litigation.  The Information Commissioner supported that view and argued that this was not likely to be an appropriate case to deal with the issue.  There is considerable force in those submissions.

36.	On the other side is the point that if we were remitting this case to the FTT our “guidance function” would support the view that we should give directions on how the FTT should address the public interest issues remitted to them.  Also, as is acknowledged by the FCO, there is a powerful public interest in favour of disclosure.

37.	Although understandably not submitted by APPGER, there is merit in avoiding a result that we decide the public interest issue by reference to 2008 telling APPGER that if it wants it tested as at 2015 it should make another request that we cannot deal with until it has been dealt with by the FCO, the Information Commissioner (who are both before us) and the FtT (unless its President requests a transfer to the Upper Tribunal, which we are prepared to assume he would in all the circumstances of this case).  We acknowledge that the unattractiveness of this result does not provide an answer to a jurisdictional point.  But, it seems to us that it might be avoided by agreement if the point as to the date when the public interest is to be assessed is not academic.

38.	Balancing these considerations we have concluded that APPGER should be given the opportunity to demonstrate through evidence and argument that the point as to the date at which the public interest is to be assessed is not an academic one in respect of the requests that found these proceedings before we decide whether or not we should, consider it.  So, if APPGER indicate that they intend to pursue this appeal (in accordance with their agreement to consider this before a defined date) it is then to file and serve (by a date to be agreed between the parties) evidence and in addition (if so advised) written argument to support its contention that it is arguable that the assessment of the public interest balance in 2015 rather than 2008 would found a different result.  

39.	If APPGER file and serve that evidence and (if so advised) written argument within the time agreed the appeal is to be listed for 29 and 30 April on the basis that if we give it permission to argue the date of assessment point we will at that hearing hear: (a) the substantive argument on it, and (b) the substantive public interest argument as at the date to which the evidence is presently directed in so far as it is date directed (i.e. 2008) but will not hear the substantive public interest argument by reference to a later date absent the agreement of all the parties.

40.	If APPGER do not serve that evidence and (if so advised) written argument within the time agreed the appeal will be listed on 28 and 29 April and we will hear the substantive public interest argument as at the date to which the evidence is presently directed in so far as it is date directed (i.e. 2008). 

41.	In both cases we will also hear the arguments on whether (a) 6 of the documents are covered by the absolute exemption in s. 23 - the security body exemption, and (b) one document contains information that has already been disclosed.

Signed on the original on 11 February 2015				

Mr Justice Charles CP

Mr Justice Mitting

Upper Tribunal Judge Nicholas Wikeley