Corderoy and Ahmed v Information Commissioner, Attorney General's Office and Cabinet Office: [2017] UKUT 495 (AAC); [2018] AACR 19

Upper Tribunal Administrative Appeals Chamber decision by Mr Justice Charles, Mr Justice Lane and Anne Chafer on 14 December 2017.

• From: HM Courts & Tribunals Service and Upper Tribunal (Administrative Appeals Chamber)
• Published: 2 January 2018
• Last updated: 23 September 2019 — See all updates

• Categories: Information rights
• Sub-categories: Information rights - Freedom of information - absolute exemptions, Information rights - Freedom of Information - exceptions, Information rights - Freedom of information - public interest test
• Judges: Three Judge Panel
• Decision date: 14 December 2017

Read the full decision in [2018] AACR 19ws

Judicial Summary

Reported as [2018] AACR 19

Freedom of Information – scope of exemption in section 23 Freedom of Information Act 2000 – public interest test in relation to section 35(1)(c) (Law Officers’ advice) and section 42 (Legal Professional Privilege)

These appeals were transferred from the First-tier Tribunal. The appellants, in separate requests, requested information relating to a precision airstrike carried out by an RAF remotely piloted aircraft in Syria (the Raqqa Strike). The first appellant sought correspondence and communications between the second and third respondents. The second appellant sought the legal advice referred to by the Prime Minister when announcing the Raqqa Strike to Parliament. The second and third respondents refused the requests, relying on the absolute exemption in section 23(1) (security bodies) and the qualified exemptions in section 35(1)(c) (Law Officers’ advice) and section 42 (legal professional privilege) of the Freedom of Information Act 2000 (FOIA). The appellants complained to the Information Commissioner, who concluded that the exemptions applied and second and third respondents did not have to provide any information under FOIA. The appeals against the Information Commissioner’s decision were transferred to the Upper Tribunal. The issues before the Upper Tribunal were: on the application of exemptions (1) what is the scope of section 23(1) FOIA, (2) does section 23(1) apply to the entire contents of the advice or can the contents be disaggregated so that some information is treated as outside the scope of section 23(1) FOIA, (3) is the information in the advice otherwise wholly or partially exempt from disclosure under section 35(1)(c) and 42 FOIA on an application of the public interest test in section 2(2) FOIA, (4) is other information within scope of the first appellant’s request exempt under section 23(1), section 35(1)(c) and/or section 42 FOIA, and on a procedural challenge (5) was the Information Commissioner entitled to rely on an assurance from the second and third respondents that the advice was exempt under section 23(1) FOIA or should she have required the advice to be disclosed for her consideration?

Held, dismissing the appeal:

1. taking issues 1 and 2 together, the legality of a policy decision can be debated and explained by reference to the legal principles engaged and how they are to be applied without linking them to evidence relied on in a particular case (paragraph 34). The legal analysis in the requested information was of interest to security bodies so section 23 FOIA was engaged (paragraph 41) therefore there was an absolute exemption unless the legal analysis founding the view that the policy decision was lawful could be disaggregated and the disaggregated information falls outside the scope of section 23 FOIA (paragraph 43);

2. the disaggregated information was of interest to security bodies but Parliament did not intend such information to be covered by section 23 FOIA because (i) this interest was shared by Parliament and the public because it related and was confined to the legality of Government policy and so (ii) it fell within the qualified exemptions in section 35 and 42 as being legal advice on the formulation of government policy (paragraph 62);

3. the public interest balance in section 35 and 42 was firmly in favour of non-disclosure of the disaggregated information in the advice (paragraph 80). The Upper Tribunal adopted the approach in Savic v (1) ICO, (2) AGO and (3) CO; AG appeal [2016] UKUT 0534 at [34]: the powerful public interest against disclosure does not convert a qualified exemption into an absolute exemption (paragraphs 67 to 68). In this case a properly informed public debate of the legal issues could be had without disclosure of the information (paragraphs 78 to 80);

4. while the additional information sought by the first appellant was not confined to the legal advice given by the second respondent, it was part of a continuum of advice that attracted legal professional privilege and, in the absence of a further public interest argument in favour of disclosure, the balance was in favour of non-disclosure (paragraphs 87 to 88);

5. on the procedural issue, the Information Commissioner should have used her statutory powers to require the advice to be disclosed to her for consideration. To accept an assurance which effectively allowed the second and third respondents to be the decision maker on the challenge to their stance on the section 23 FOIA exemption was unfair (paragraph 95).

Published 2 January 2018
Last updated 23 September 2019 + show all updates

1. 23 September 2019

   Decision selected for reporting as [2018] AACR 19

2. 2 January 2018

   First published.