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Guest Blog: Questioning the Fundamentals of FOIA

One of the fundamentals of the FOIA regime in the UK is that it is “applicant blind” or “requester blind”. Although requesters need to provide a name and an address for correspondence, even these formalities are flexible: the name can be a nickname, so long as the person is identifiable; the address can be an e-mail, so long as the response can be given electronically. In responding to the request, the public authority is not generally concerned with the identity or attributes of the requester – the focus is on the information requested and the broad public interest in its disclosure.

The requester blind principle facilitates requesting. Requesters do not have to give details about themselves and explain why they would like the information; public authorities do not need to spend time and resources scrutinising individuals and their motives.

So it came as a surprise when, in August 2020, the First-tier Tribunal stayed more than a dozen appeals and raised the question of whether the requesters, all of whom were outside the UK when they made their requests and brought their appeals, were entitled to do so. The Tribunal asked the general question of whether the rights conferred by FOIA should be presumed to be limited to people in the UK at the time when the right is exercised, because UK legislation is presumed only to operate within the territory of the country.

The Tribunal’s queries were all the more surprising given that the Information Commissioner’s guidance has been, since FOIA was introduced over 20 years ago, that: “Anyone can make a request for information, regardless of who they are or where they live”. This reflects the breadth of section 1(1) of FOIA, which gives “any person making a request for information” a right to be informed in writing by a public authority whether it holds the information and, if so, to have a copy of the information. The legislation has operated from its inception on the understanding that “any person” meant, literally, anyone, whether in the UK or not. Requesting from outside the UK had not caused any practical difficulties.

The Tribunal is correct that there is a presumption that usually operates when interpreting statutes that they only apply within the territory of the UK. But there is no general principle that the legislation of the UK is applicable only to British citizens or those present in the UK – the principle of “territorial effect” is a rule of statutory construction only. It cannot take precedence over the plain language of the statute. The implication of the Tribunal’s question was that new formalities had to be read into FOIA: public authorities would have to examine the identity, citizenship, geographic location, residency and time in the UK of each and every applicant for information under FOIA in order to know whether the request was valid. The requester blind principle would be destroyed.

By January 2021, five lead cases were identified and listed for a hearing on the jurisdiction question. A further 20 cases were stayed awaiting the outcome. On 27 January 2021, after a day and a half of legal argument, Upper Tribunal Judge O’Connor and Tribunal Judge Macmillan announced that no territorial limitation should be read into FOIA. The Judges’ reasons will be given in writing at a later date.

It is still unclear what triggered the “territoriality” query and why the Tribunal, seemingly without prompting from any of the parties to the appeals, decided it should use those appeals to consider an issue that could have utterly changed the nature and reach of FOIA.

The appeals give a fascinating insight into the range of FOI requesting. In my next blog, I will set out some of the detail of the appeals involved and the responses of the parties to the issues raised by the Tribunal, including the ICO’s response. For now, it is useful to reflect on what the decision means for FOI and its preservation.

The decision confirms that FOIA extends a right to any person anywhere in the world to make a freedom of information request of a public authority in England, Wales or Northern Ireland, and to complain to the Commissioner and appeal to the Tribunal if dissatisfied with the decision. This reflects the importance of the right of access to information; supporting the health of UK democracy; holding public authorities to account and improving decision-making. For public authorities, the decision avoids potentially serious practical impacts that would have arisen from having to determine whether a requester was located abroad at the time of making the request and, if so, whether the requester was a UK national or had a sufficient connection to the UK to bring him or her within the ambit of FOIA.

In the end, the outcome is good news for requesters and good news for public authorities – relief all round that the balance achieved by the UK’s FOIA regime was not upended.

Estelle Dehon, Barrister, Cornerstone Barristers

Hear from FOI experts Estelle Dehon , Jon Baines, Maurice Frankel and Bill Goodwin.
Watch the webinar.

Is FOI an endangered species?

With FOI response rates at their lowest levels since the Act came into force, the emergence of ‘the Clearing House’ and last month’s Tribunal concerning territorial limitations, concern for the Act and transparency has grown.

But what is the true state of FOI today? Hear from FOI experts Estelle Dehon and Jon Baines in our panel session, and decide for yourself.

Watch the recording

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About Estelle Dehon

Estelle Dehon is a public law barrister at Cornerstone Barristers. She is recognised as a leading barrister in information law with particular expertise in data protection, big data, profiling, artificial intelligence and machine learning, Estelle represents both requesters and public authorities in access to information cases, and successfully represented the investigative journalist Stefania Maurizi before the Information Tribunal in the leading case on the extent of the right of access to information. She is a member of the European Commission’s Multistakeholder Expert Group on the GDPR, which assists the Commission in dealing with potential challenges in implementing the GDPR across Europe.

The other main area of Estelle's practice is environment and planning law, in which she is also recognised as a leading barrister specialising in climate change matters and in advising on how development can comply with net-zero carbon requirements. She has acted for NGOs and community groups opposing fracking, acidisation, open cast coal mining, oil drilling and airport expansion. Estelle’s broader public law work includes acting for two NHS doctors challenging failures around providing Personal Protective Equipment to frontline NHS workers and acting for A-level students challenging the use of an algorithm to determine their 2020 results.

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