Case Summary and Outcome

The U.K. Administrative Appeals Chamber (UTAAC) held that information concerning detention and interrogation policies is of significant public interest and should be disclosed; the public interest in access to diplomatic assurances that detainees would not be tortured outweighs any harm that might flow from disclosure; information concerning the Special Forces and legally privileged communications are exempt; and the personal data exemption is not implicated in a request for non-identifying statistical details.

This case analysis was contributed by Right2Info.org.

Facts

The UK All-Party Parliamentary Group (APPG) on Extraordinary Rendition was established in 2005 to examine allegations of U.K. involvement in the U.S. practice of extraordinary rendition in counter-terrorism operations. The APPG filed information requests in 2008 seeking information about the extralegal transfer of detainees for detention and interrogation where there was a risk of torture or cruel, inhuman or degrading treatment. The information requested included (i) information concerning diplomatic assurances between the U.K. and Iraq, Afghanistan and the U.S. on the handling of detainees; (ii) the Detention Practices Review; (iii) the U.K. policy on capture and joint transfer; and (iv) statistics on detainees captured and transferred by the Joint Task Forces.

In the administrative review process, the Ministry of Defense provided only limited information, and denied the bulk of the information requests on cost grounds; as well as on the grounds that the information implicated various exemptions – including for international relations, information concerning Special Forces, legally privileged information, and personal data subject to protection.

The appeal followed various decisions by the Information Commissioner. The request was read as a citizen’s request under the U.K.’s Freedom of Information Act (FOIA), not as a request of Members of Parliament or parties to other litigation.

Decision Overview

In a public decision supplemented by a closed annex, the Upper Tribunal of the Administrative Appeals Chamber (UTAAC) rejected most of the government’s costs arguments; acknowledged the significant public interest in the information requested; ordered disclosure of some statistical and other information; ordered a further hearing to consider more fully the international relations exemption asserted; and accepted the government’s assertions on the legitimate non-disclosure of information concerning Special Forces and legally privileged information.

The costs question centered on the section in the FOIA that exempts a public authority from complying with an information request where the cost of compliance would exceed £600. The Tribunal ruled that the cost exemption could not belatedly be invoked here because of its prejudicial impact given the government’s delay in raising the exemption and the potential remedy available to the applicant of dividing up the request to satisfy the costs limitation.

Regarding the §27 FOIA international relations exemption (protecting information likely to prejudice international relations or the interests of the U.K. abroad) as applied to the diplomatic assurances, the Tribunal noted that this is a “qualified exemption” subject to the public interest balancing test. Despite giving “appropriate weight” to the executive branch concerns, the Tribunal was disposed to reject the government’s assertion of harm to international relations from disclosure.

The Tribunal expressed skepticism that an agreement intended to ensure human rights and legal compliance in detainee transfers “could be perceived as confidential in nature or something the existence of which embarrasses foreign states”. The Tribunal continued:

“Since the maintenance of the rule of law and protection of fundamental rights is known to be a core value of the government of the U.K., it is difficult to see how any responsible government with whom we have friendly relations could take offence at open disclosure of the terms of agreement or similar practical arrangements to ensure that the law is upheld. . . . If, on the other hand, there was such a case [of a particular government with concerns about disclosure of such information], then the public interest in disclosing the terms of those arrangements becomes that much more pressing and weighty. It is difficult to see how the Secretary of State for Defense, let alone the general public concerned with the issue, could be assured by assurances with a foreign government that was unwilling to have the terms of such agreements made open”. The Tribunal ordered a subsequent hearing, but expressed “doubt” that the “s.27 exemption can outweigh the public interest in knowing what the terms of the understanding are”.

The Tribunal similarly rejected the government’s arguments that the international relations exemption applied to the request for disclosure of the Detention Practices Review, but upheld the government’s assertions that its legal annex contained legally privileged information that could thus be kept secret. According to the Tribunal, the annex could be withheld from public view because of the strong public interest in enabling the government to obtain “frank and confidential legal advice,” despite the countervailing“ weighty nature of the public interest factors in favor of disclosure of material concerning treatment of detainees.”

The Tribunal upheld the government’s assertions regarding secrecy of information concerning Special Forces implicated in the requests for the policy on capture and statistics concerning Iraqi operations. Where all the information concerned the U.K. Special Forces, the government could respond by neither confirming nor denying the existence of information responsive to the request.

The Tribunal rejected the government’s assertions that it needed to protect personal data (§42) implicated in the request for statistics concerning captured detainees and mandated the disclosure of certain Afghan data that did not include detainee names. The Tribunal held that the disclosure of this information was not personal data because individuals would be unidentifiable. Even if identifiable, disclosure would not prejudice the individuals because they were detained for short periods.