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Guest Blog: Questioning the Fundamentals of FOIA Part 2

In the first part of this blog, I outlined the recent decision by the First-tier Tribunal that no territorial limitation should be read into FOIA, confirming that requesters can make requests from anywhere in the world.

By the time the Tribunal heard the case, via five “lead” cases, at the end of January, there were 20 other cases stayed behind them, dependent on the outcome of the hearing. The details of some of the appeals involved show the scope and importance of the FOIA right.

The People Behind the Appeals

A number of the appeals were being conducted by journalists and three of the lead cases involved requests by investigative reporters. The first was the appeal by Italian investigative journalist Stefania Maurizi, based in Italy and writing for the leading daily newspaper Il Fatto Quotidiano. She was seeking information held by the Metropolitan Police Service in correspondence with the US Department of Justice concerning three named individuals (Kristinn Hrafnsson, Sarah Harrison and Joseph Farrell), all of whom work or worked for WikiLeaks and all of whom the MPS accepts are journalists.

Ms Maurizi’s request followed the revelation in late 2014 that Google had been subject to a secret search warrant and, under subpoena, had handed to the US Department of Justice the content, subscriber information and metadata of the three journalists’ emails. Ms Maurizi’s UK FOIA request to the MPS was made in order to understand what role, if any, the UK authorities played in cooperating with the criminal investigation into the journalists, two of whom are British citizens and all of whom were based in the UK and/or spent significant periods of time in the UK for their work with WikiLeaks.

Two of the lead cases involve Ben Lucas, a British financial crime correspondent based in Hong Kong and writing for MLex Market Insight, who sought information in correspondence between the Home Office and ten British crown dependencies and overseas territories concerning the 2017 Criminal Finances Bill. One of the stayed appeals was brought by French freelance investigative journalist Emmanuel Freudenthal, based in Nairobi, who sought disclosures about thousands of Ebola-infected blood samples, taken from people in Sierra Leone without their consent and flown to the UK.

Not all the appeals involved journalists. Nick Martin-Clark, a former director of the Haringey Leaseholders Association (HLA), appealed refusal of his request for information relating to a report produced for Homes for Haringey, responding to a complaint alleging bullying and mismanagement by HLA. Part of the case was already heard before it was stayed, on the basis that Martin-Clark is now living in France. There was also an appeal by Nicolaus Lange, a German political scientist and former representative for the Cook Islands Ministry of Finance and Economics. It concerned information requested from the Foreign Commonwealth and Development Office, specifically correspondence from the British High Commissioner in Wellington to the Cook Islands’ Deputy Prime Minister, which might show recognition by the UK of the Cook Islands as an independent state.

This small cross-section of the people behind the appeals shows that being located outside the UK does not diminish the public interest in the UK of the disclosure of the information. The range of issues raised by their requests evidences the importance of FOI to journalists, groups and individuals.

Interestingly, the Tribunal took the view that the various appellants, even those involved in the five lead cases, did not need to know any details about the other appeals and did not share or make any appeal documents available across the appeals. Another extraordinary feature of this case is that the only reason that the requesters involved in these cases know anything about the facts of each other’s appeals is because of work done by journalist William Goodwin, Investigations Editor of Computer Weekly, who looked into the matter and published a story on the Tribunal raising the territoriality question.

The ICO’s Position

The ICO’s submissions in the case strongly supported the broad scope of FOIA. The submissions made the point that the right to make a request for information is not dependent on the requester possessing any characteristics and emphasised the requester blind nature of the process. The Information Commissioner also referred to the unique nature of information law, because of the international flow of data and information around the world.

This is in line with the ICO’s guidance, which, as flagged in the previous blog, has always been that anyone can make a request for information, regardless of who they are or where they live. It also reflects the Commissioner’s view, set out in her strategic plan Openness by Design – The Information Commissioner’s strategic plan 2019-20 – 2021-22, that the present access to information system operates in such a way that it plays an important role “in supporting the long-term health of our democracy as well as the accountability of public bodies”.

It is also in line with the ICO regulatory role in FOI: vindicating the right of individuals to access information in the same way that, under the DPA, the ICO vindicates the right of individuals to privacy. That role also entails ensuring that public bodies’ record keeping and information systems operate properly, in order to facilitates good decision-making. However, the primary reason for the ICO’s oversight of public bodies’ record keeping is to enable the right of access to information to be exercised.

Conclusion

Standing back, it seems the FOIA jurisdiction case has resulted in a reinforcement of FOI rights. I’ll be sharing my thoughts and conclusions on these issues, and discussing them with my fellow panellists, on Thursday 11th March at 1pm.


Hear from Estelle Dehon, Maurice Frankel, Jon Baines and Bill Goodwin
View the webinar recording

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 who'll take part in our panel session alongside Bill Goodwin, Investigations Editor of Computer Weekly and Maurice Frankel, director of the Campaign for FOI 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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