Written evidence from Derek Moss (FOI 42)

Public Administration and Constitutional Affairs Committee

The Cabinet Office Freedom of Information Clearing House inquiry

1. These submissions are made in response to the Call for Evidence by the Public Administration and Constitutional Affairs Committee, to assist its inquiry into:

i) The Cabinet Office’s compliance with and implementation of the Freedom of Information Act 2000;

ii) The role and operation of the Cabinet Office Freedom of Information Clearing House, including:

Its handling of the cases that come to it;

Its role in advising on and coordination of the handling of Freedom of Information cases across Government.

2. I filed a FOI appeal in the Upper Tribunal on 31 May 2017, which was decided on 30 July 2020 - Derek Moss v the Information Commissioner and the Cabinet Office [2020] UKUT 242 (AAC). The Information Commissioner opposed that appeal and the Cabinet Office was joined as 2nd Respondent to oppose it. The arguments advanced by the Respondents and the Tribunal’s findings are relevant to the Committee’s inquiry. A full account of this case, with copies of the submissions and the judgment, can be found online here:

https://dchkingston.wordpress.com/foia-balls-c1-ch3/.

3. The Cabinet Office argued, in agreement with the Commissioner, that notwithstanding the statutory duties imposed by sections 2, 3 and 6 of the Human Rights Act 1998 (‘HRA’) to “take into account” the ECtHR jurisprudence; to read and to give effect to legislation in a way which is compatible with the Convention rights; and to act in a way which is compatible with and upholds the Convention rights; as well as the body of consistent binding Supreme Court authorities which establish that the domestic courts should ordinarily follow any clear and constant jurisprudence of the Strasbourg Court, especially final Grand Chamber decisions:

i)               the Article 6(1) right to a fair hearing in the determination of one’s civil rights does not apply to FOIA requests, complaints or appeals; and

ii)              the Tribunal cannot follow the Grand Chamber’s decision in Magyar Helsinki Bizottsag v Hungary (2016) Application No. 18030/11, which elucidated the Article 10 right to access information and instead it must follow the obiter findings in Kennedy v Charity Commission [2014] UKSC 20; [2015] A.C. 455.

4. Both the Commissioner and the Cabinet Office also argued that section 8 FOIA does not oblige public authorities to treat requests for information as FOIA requests and FOIA does not prohibit disclosure when an exemption applies, it just allows the public authority to refuse to disclose the information under FOIA, but they are still free to disclose the information if they choose to, using their powers under other legislation, such as the Localism Act 2011, and where the Article 10 right to access information is engaged, they may be obliged to comply with the request and a refusal to do so could be challenged by seeking judicial review.
5. The Commissioner also argued that:

i)               Regulation 5 of the Fees Regulations, which permits public authorities to aggregate the costs of complying with two or more requests that are received within any period of sixty consecutive working days, where they relate, to any extent, to the same or similar information, whether they are made by one person or by different persons who appear to the public authority to be acting in concert or in pursuance of a campaign, allows for requests to be aggregated and refused where they have a “common theme” or “overarching thread” linking them, e.g. where they all relate to the subject of Estate Regeneration;

ii) public authorities do not have to specify that they are relying on Regulation 5, or that they have aggregated multiple requests, or identify any grounds for aggregating them, either when refusing them or when corresponding with the Commissioner after a FOIA complaint has been made. The Commissioner can still dismiss a complaint on the assumption that the public authority aggregated the requests because of a common theme or subject linking them;

iii)              if the Commissioner’s decision is appealed, she is allowed to contact the public authority, even if it chooses not to be joined as a party to the appeal, to persuade it to send her an ex post facto statement claiming that it aggregated the requests when refusing them, which she can submit to the Tribunal on the morning of the appeal hearing to retrospectively support her decision and the Tribunal can rely on that statement to find that the public authority aggregated the requests when it refused them and the Commissioner was right to dismiss the complaint on that basis;

6. The Upper Tribunal accepted the arguments advanced by the Commissioner and the Cabinet Office regarding Article 6 and Article 10 and held that:

i) the fact that the Government told the ECtHR, in the case of Times Newspapers Limited and Kennedy v UK [2019], that the High Court was free to follow Magyar, which persuaded it to declare the application inadmissible on the grounds that the applicants hadn’t exhausted domestic remedies, is irrelevant because this was just the Government’s opinion (paras.67-69);             

ii) where the UK is allowed to intervene as a third-party in cases before the ECtHR, it isn’t a “party” to those proceedings and the international law obligation under Article 46 of the Convention, which obliges the UK to “abide by” decisions of the ECtHR to which it was a party, doesn’t apply (paras.70-71);

iii)              the Tribunal is obliged to follow obiter Supreme Court findings, even where they conflict with a subsequent decision of the ECtHR (paras.72-75);

iv) where the Article 10 right to access information is engaged, refusing to provide access to that information in response to a FOIA request by relying on the s.12 limit of 18 hours does not breach Article 10, because FOIA is not the sole legal basis for obtaining information and requests for information can be made by reference to the Localism Act 2011 rather than FOIA, with any refusal challenged by way of judicial review, at least where the information in question is subject to an absolute exemption under FOIA, such as the s.12 time limit (paras.110-118);

v) even if the Article 10 right to access information is engaged by a particular FOIA request and the public authority has arguably breached Article 10 by relying on s.12 to refuse that request, the Tribunal cannot provide any effective remedy for that breach as it is bound to apply the s.12 limit; it cannot use its powers under s.3 HRA to read down or interpret FOIA so as to disapply the s.12 limit in order to prevent a breach of Article 10; it cannot disapply or vary this limit, even though it is set by regulations rather than in FOIA itself; it cannot make a declaration of incompatibility and even if it could, that would not provide an effective remedy for the breach of Article 10 (para.120-124);

vi) “it appears at least very doubtful” whether the Article 6(1) right to a fair hearing applies to FOIA requests, complaints and appeals, other than where the request relates to the requestor’s personal or private situation (para.153-154).

7. The Upper Tribunal also accepted the other arguments advanced by the Commissioner and held that:

i)              Regulation 5 allows public authorities to aggregate requests where there is a “common theme” or ”overarching subject” linking them (para.125-128);

ii) despite what s.57-s.58 FOIA say, the FTT’s role is not to consider whether the Commissioner’s Decision Notice is ‘in accordance with the law’, it is to conduct “a full merits consideration of whether, on the facts and the law, the public authority dealt with the request for information in accordance with Part I of FOIA” (para.155-158);

iii) the Commissioner and the FTT are not limited to determining whether the  public authority dealt with the request in accordance with FOIA in the time up to the conclusion of the internal review, nor are they limited to considering evidence which existed when the internal review process was concluded and when deciding a complaint the Commissioner can consider whether the public authority could have aggregated multiple requests for the purposes of s.12, not just whether it did in fact do so (para.159-160);

iv)              there was nothing wrong with the Commissioner soliciting an ex post facto statement from the public authority shortly before the FTT hearing to retrospectively support her Decision Notice, or with her submitting that statement as evidence on the morning of the hearing;

v) there was nothing wrong with the Tribunal accepting and relying on an ex post facto statement from a non-party, written the day before the hearing and submitted by the Commissioner on the morning of the hearing, to find that the Commissioner’s decision was correct and dismiss the appeal.

8. The Upper Tribunal’s findings are relevant for the purposes of the Committee’s inquiry because they are binding law until such time as the Court of Appeal or the Supreme Court overturns them, or Parliament amends FOIA, and they reflect the Commissioner’s position.
9. More specifically, one of the complaints before the Committee is that FOI requests are meant to be applicant blind and the Cabinet Office is breaching this principle by recording the names of applicants. However it is settled law, which the Commissioner agrees with, that public authorities are entitled to aggregate separate requests which are received within any period of sixty consecutive working days, where they relate, to any extent, to the same or similar information (which includes where they have a common theme or subject linking them), whether they are made by one person or by different persons who appear to the public authority to be acting in concert or in pursuance of a campaign.
10. As such, public authorities are entitled to record the names of applicants in order to determine whether they have made other requests within the relevant period which could be aggregated, and whether requests have been made by anyone else whom the public authority believes to be acting in concert or in pursuance of a campaign, such as people working for the same organisation or newspaper.
11. If that was the extent of the law, there would be no justification for keeping these records for longer than sixty consecutive working days after the applicant’s request is received. However it is also settled law, which the Commissioner agrees with, that public authorities do not have to say that they are aggregating requests, or mention Regulation 5, when they refuse them and they can defeat a complaint or appeal by producing an ex post facto statement after the complaint or appeal is filed, right up until the day of the hearing, stating that they aggregated the requests, or even if they admit that they didn’t aggregate them but argue that they could have done so.
12. Therefore, public authorities may be able to justify keeping records of all requests received until after the complaint and appeal process has been exhausted, so that they can retrospectively identify a reason for aggregating them, including that the applicant and some other person or persons made requests within sixty consecutive working days of each other, which are linked by a common theme or subject (e.g. information relating to Brexit, or Covid, or the Cabinet Office) and those persons appear, in the public authority’s subjective opinion, to have been working in concert or in pursuance of a campaign.
13. Requests which are linked by a common theme or subject may be made, by the same person or persons who are acting in concert, to different government departments. If those government departments are treated as separate public authorities for the purposes of FOIA, then requests made to different government departments cannot be aggregated. However, if they are all treated as a single public authority for the purposes of FOIA, then requests to different departments can be aggregated and the Cabinet Office can justify keeping a central record of all requests received by each department and cross-referencing them to identify whether any can be aggregated.
14. On a more hopeful note, it is also settled law, which the Commissioner and the Cabinet Office both agree with, that where the Article 10 right to access information is engaged (which is likely to be the case for the majority of requests made by journalists, as long as it is arguable that the information is sought in order to publish it and thereby facilitate public debate on a matter of public interest), requests can be made by reference to other legislation, such as the Localism Act, which unlike FOIA does not provide for requests to be aggregated, for any reason, nor for them to be refused on the grounds that it would cost more than £600 to comply with them. Then any refusals can be challenged by way of judicial review, rather than complaining to the Commissioner and then appealing to the Tribunal, neither of which are willing to recognise that the right to access information conferred by FOIA is a civil right which engages the Article 6(1) right to a fair hearing in the determination of one’s civil rights.
15. However, the High Court may follow the Upper Tribunal’s lead and refuse to apply Magyar until such time as the Supreme Court affirms the decision in domestic law, after which the lower courts will be obliged to follow that domestic decision. So we may have to wait until a newspaper, or some other organisation with sufficient resources, pursues an appeal all the way to the Supreme Court before we can exercise our Article 10 right to access information.

October 2021