Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Mixed Outcome
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The U.K. Information Appeal Tribunal held that disclosure of information relating to arms trade between the U.K. and Saudi Arabia could cause real and substantial prejudice to U.K. international relations, the harm of which outweighs any public interest in favor of disclosure. However, information relating specifically to the role of U.K. government officials in accepting bribes is subject to disclosure. Nicholas Gilby filed three requests under the Freedom of Information Act (FOIA) namely for: a file concerning the export of tanks for the Saudi Arabian National Guard in 1968-69; files concerning the possible sale of arms to Saudi Arabian National Guard and the provision of maintenance services to the Royal Saudi Air Force; and files relating to possible sale of tanks to Saudi Arabia.
This case analysis was contributed by Right2Info.org.
These conjoined appeals concern three separate information requests to The National Archives (‘TNA’) by Nicholas Gilby under the Freedom of Information Act (FOIA) for: 1) a file concerning the export of tanks for the Saudi Arabian National Guard in 1968-69 (Request A); 2) files concerning the possible sale of arms to Saudi Arabian National Guard and the provision of maintenance services to the Royal Saudi Air Force (Request B); and 3) files relating to possible sale of tanks to Saudi Arabia (Request C).
The TNA refused Request A on the grounds that disclosure would cause “harm to bilateral relationships” with foreign states and “damage to U.K. commercial interests in the region,” such that the request fell within the international relations exception under Section 27 of the FOIA. The TNA refused Request B on substantially similar grounds. With respect to Request C, the TNA acknowledged the “general public interest in transparency and accountability” but argued that such interests were outweighed by “the public interest in the maintenance of positive diplomatic relationships with other governments”.
The Tribunal was faced with two main issues. Firstly, whether the requested information fell under Section 27(1) of the FOIA, in that it might prejudice U.K. international relations if disclosed, and Section 27(2) and (3) of the FOIA, in that it constituted confidential information obtained from a foreign nation. Secondly, even if information fell under any part of Section 27, the Tribunal had to consider whether disclosure might nonetheless be necessary if public interest in favor of disclosure was sufficiently strong (para. 20).
The Tribunal explained that for the purposes of Section 27(1) of the FOIA, prejudice “can be real and of substance if it makes relations more difficult or calls for particular diplomatic response to contain or limit damage which would not otherwise have been necessary”—prejudice need not “require [ ] demonstration of actual harm to the relevant interests in terms of quantifiable loss or damage” (para 23). Given that the Saudi governing power is “generally an autocratic and secretive regime,” the Tribunal accepted that disclosure of certain information regarding arms trade could “result in a very serious reaction of the [Saudi government that] would be likely to harm [U.K.’s] relations” with them (para 27).
The Tribunal went on to consider whether there was sufficient public interest in favor of disclosure under Sections 27(1), (2) and (3). While the Tribunal acknowledged “the particular importance of transparency in the fight against corruption and related malpractice,” it said that those interests were outweighed by the “public interest in maintaining [U.K.’s] relations with Saudi Arabia,” particularly given that the requested information implicated trade and economic matters (para. 51).
However, the Tribunal ordered disclosure of information specifically relating to “the possible involvement of U.K. officials directly or indirectly in the payment of commissions or agency fees in connection with arms sales”. Neither foreign relations concerns nor confidentiality concerns under Section 27 applied to such information, and public interest in favor of disclosure—namely, government transparency—was considerable (paras. 56-57).
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Sections 1,2, 23, 27
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