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The U.K. Upper Tribunal dismissed appeals by a journalist and human rights organization Rights Watch (U.K.) against decisions from the Information Commissioner (ICO) who had denied requests for information about a RAF drone strike which killed two Britons in Syria in 2015. However, although it dismissed the appeals, the Upper Tribunal curtailed the government’s power to block requests for information on national security grounds. The requests had been refused by the ICO on the basis of exemptions under s. 23 (security bodies), s. 35(1)(c) (Law Officers’ advice) and s. 42 (legal professional privilege) of the Freedom of Information Act (FOIA). The Upper Tribunal reasoned that the information was subject to the qualified exemptions under s.35 and s. 42 as “legal advice on the formulation of Government policy” and that security concerns outweighed the public interest in disclosure. In respect of the statutory bodies exemption, the Tribunal reasoned that legal advice could be “disaggregated” from the particular circumstances of the drone strike and therefore “fall obviously within the qualified exemptions in sections 35 and 42″ meaning it could be disclosed if the public interest in disclosure outweighed that of non-disclosure.
On August 21, 2015 the U.K. executed a drone strike in Raqqa, Syria which resulted in the death of Reyaad Khan, a British citizen who was suspected of being involved in plotting and directing terrorist attacks in the U.K. and elsewhere. Another, British citizen, Rahul Amin was also killed in the attack.
On September 7 the Prime Minister explained, in a statement made to the House of Commons. that the government’s position was that “If there is a direct and imminent threat to the United Kingdom and there is no other way of dealing with it – it is not possible to interdict that threat or to arrest or detain the people involved in that threat – then of course as a last resort we have to use force”. The Prime Minister also stated that “The Attorney General was consulted and was clear that there would be a clear legal basis for action in international law”. [para. 10]
In the context of an inquiry by the Joint Committee on Human Rights of the House of Lords and the House of Commons, the government was asked to detail its understanding of the international legal framework applicable to these kind of attacks. However, the government did not comply with this request maintaining that “There is no requirement to publish the Government’s conception of the applicable legal framework in any particular context, still less in a context such as the present. Indeed, such information is privileged and the courts have consistently recognised the importance to be attached to the concept of legal professional privilege.” [Schedule to the decision]
On September 9 Ms. Corderoy, a journalist, made a request to the Attorney’s General Office for correspondence and communication between the Office and both the Cabinet Office and the Ministry of Defense relating to the approval of the August 21 drone attack. This request was formally refused by the Attorney’s General Office on November 24.
On September 8 Ms Ahmed, acting on behalf of the NGO Rights Watch (UK), made two requests, one to the Attorney’s General Office and one to the Cabinet Office for the disclosure of the “legal advice to which the Prime Minister referred” in his statement to the House of Commons of September 7. These requests were formally refused, by the Attorney’s General Office on January 6, 2016 and by the Cabinet Office on February 24, 2016.
The ICO concluded that that the requests were properly denied under the exemptions contained in section 23, 35(1)(c) and 42 of the FOIA and the respondent authorities were not required to disclose the information. The applicants appealed to the Upper Tribunal which issued its decision on December 14, 2017.
The issue for the U.K. Upper Tribunal was whether the Attorney’s General Office and the Cabinet Office were required, under the Freedom of Information Act (2000) (hereinafter “FOIA”) to disclose the information requested by the appellants. More specifically, whether the legal advice provided by the Attorney General to the government in respect of the lawfulness of the drone attack of August 21, 2015 fell into one or more of exemptions contained in sections 23, 35 and 42 of the FOIA.
The Tribunal began its analysis by reviewing the statement made by the Prime Minister to Parliament and concluded that the Prime Minister had made a distinction between 1) the general policy position that “if certain circumstances existed, a targeted drone strike against individuals in Syria would be lawful in international law, and so could be authorised” and 2) the particular decisions pertaining to the authorization and implementation of the particular attack on Raqqa. The Tribunal accepted the appellants’ argument that the requests relating to the legal analysis underlying the general policy position could be “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”. [paras. 16 and 34]
It then proceeded to note that, while the information requested by the appellants was contained in documents, the actual request related to the information and not the documents themselves for which the information could be provided by “extracting it from documents and other records held by the public authority”.[para. 36]
The Tribunal’s next step was to assess whether the documents that contained the requested information fell within the ambit of the exemption established in section 23 of the FOIA in respect of information held by a public authority that had been directly or indirectly supplied to a security body. For this purpose, the Tribunal referred to the case of APPGER v IC and FCO  which had stated that “information, in a record supplied to one or more of the section 23 bodies for the purpose of the discharge of their statutory functions, is highly likely to be information which relates to an intelligence or security body and so exempt under section 23”. [para. 40]
The appellants accepted that section 23 would preclude disclosure of the requested information under the FOIA unless “(a) the legal analysis to found the view that the policy decision was lawful can be disaggregated and provided in an intelligible form, and (b) any such disaggregated information falls outside the scope of section 23”. Having accepted that the information pertaining to the legal analysis could be disaggregated from the information pertaining the specific circumstances of the Raqqa strike the Tribunal went on to assess whether disclosure of such “disaggregated information” was mandated by the FOIA. [para. 43]
The Tribunal once more referred approvingly to the criteria expressed in APPGER v IC and FCO to support its conclusion that the goal of section 23 of the FOIA was to prevent “information [being] obtained from or about security bodies through the back door” and that this required a “wide approach” to the section’s reach. However, the Tribunal also agreed with the criteria expressed in the same case that “simply sending information to a section 23 body does not turn information held by a public authority into section 23 exempt information held by it” and that “information held by the public authority that is included in that record of communication with a section 23 body that falls within the request and for which the section 23 exemption cannot otherwise properly be claimed can and would still be provided”. [paras. 54 and 59]
Based on the above, the Tribunal identified that the key question was whether the information requested fell under the absolute exemption established in section 23 of the FOIA or whether it was subject to the qualified exemptions contained in sections 35(1)(c) and/or 42 of the same act. The Tribunal considered that this question had to be addressed “by reference to the content of the information in question”. [para. 57]
After analyzing the nature of the disaggregated information requested, the Tribunal concluded that information “was and is of interest of security bodies for their statutory purposes and, as a matter of ordinary language, can be said to relate to them” but also that “Parliament did not intend such information to be covered by the absolute section 23 exemption”. It reasoned that “(i) the interest of the security bodies in such information is shared by Parliament and the public because it relates and is confined to the legality of Government policy, and so (ii) such information falls obviously within the qualified exemptions in sections 35 and 42 as being legal advice on the formulation of Government policy”. [para. 62]
To determine whether the disaggregated information was covered by the exemptions contained in section 35 and 42 of the FOIA, the Tribunal applied the public balance interest test set by section 2(2)(b) of the same act. After reviewing applicable case-law, the Tribunal reasoned that it is for the public authority claiming the exemption to establish that the public interest against disclosure outweighs the public interest in favor of disclosure. The Tribunal stressed that “However strong the public interest against disclosure it does not convert a qualified exemption into one that is effectively absolute”. [para. 68]
The Tribunal acknowledged that “There is a strong public interest in full and informed discussion of the legality of the Raqqa Strike and thus of the lawfulness of the Government policy decision on which it is founded” and that “the disclosure of the Disaggregated Information (and so the advice of the Attorney General in this form) whenever it took place would act as a catalyst to further examination and debate in the public interest of the lawfulness of the Government’s policy that founded the Raqqa Strike and could found other strikes in similar circumstances”. [para. 70 and 71]
Despite the above, the Tribunal rejected the appellants’ argument that the public could not scrutinize the legal basis of the policy without the requested disclosure and that the disclosure was necessary to clarify what the government’s position actually was. In the Tribunal’s view, the Joint Committee report demonstrated “that robust and detailed debate on the disputed legal issues can take place without disclosure of the Disaggregated Information”. It also considered that, contrary to the appellants’ assertions, there was neither inconsistency nor lack of clarity in the government’s position. [para. 72]
The Tribunal noted that government’s assertion that its position was based on legal advice received from the Attorney General did not constitute partial disclosure nor a waiver of privilege. It also stated that the importance of the issue and the public interest in the issue worked both ways because it supported both the need of confidentiality between client and lawyer as well as the arguments in favor of transparency.
In light of these considerations, the Tribunal concluded that “as a properly informed public debate of the legal issues can be had without that disclosure the public interest balance comes down firmly in favour of non-disclosure”. It dismissed the appeals accordingly. [para. 80]
It is also worth noting that in the course of its reasoning the Tribunal criticized the ICO and government’s handling of the FOIA requests, specifically the fact that the ICO did not examine the material herself but relied on an assurance from a Cabinet Office official that the advice as a whole fell under section 23 despite the fact that there were initially discrepancies between the Attorney General and Cabinet Office’s accounts of whether the advice was covered in its entirety or in part by section 23. The Tribunal said that this “fell well short of what was required under FOIA” and allowing the Government to be the decision-maker in their own challenge was “unfair”.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although the Tribunal dismissed the appeals, it curtailed government’s power to block requests for information on security grounds so far as the information relates to legal advice received by government on security matters which it said was not covered by absolute privilege but had to be balanced against wider public interests.
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