Information Tribunal to Review Scope of FOIA Right
In a case which will likely be one of the most important in recent years, the First Tier Tribunal is to consider 13 linked cases, each of which raises questions about whether people who are resident abroad can make requests for information under the Freedom of Information Act 2000. The implications of the case, particularly for journalists abroad, are such that it has been covered in the national media.
Since its inception in 2000, the FOI regime has been accessible to all individuals, including those who are resident abroad and who make an FOI request from outside the UK. However, on the basis that Acts of Parliament are presumed not to have “extra-territorial effect”, the Tribunal has now decided to consider whether overseas residents are entitled to the rights conferred by the Act.
The Tribunal has identified 13 cases in which this issue of territoriality is relevant and has designated 5 of these as “lead” cases and the rest as “related” cases. The effect of this direction (under Rule 18 of the First Tier Tribunal (General Regulatory Chamber) Rules 2009) is that the Tribunal’s decision in the “lead” cases will be binding on the “related” cases.
The Information Commissioner’s position on this issue is not clear. The Commissioner’s guidance states “anyone can make a freedom of information request – they do not have to be UK citizens, or resident in the UK.” Nevertheless, in at least one of the cases, the Commissioner raised the issue of territoriality on the basis that a requester abroad could not rely on the FOI Act.
Cornerstone’s Estelle Dehon and Sam Fowles both act for appellants in cases subject to the Rule 18 direction. Estelle represents Stephania Maurizi, an Italian journalist seeking information held by the Metropolitan Police concerning WikiLeaks journalists, two of whom are UK citizens. Her case has been designated one of the five lead cases. Sam represents a community activist seeking information relating to an investigation by a public body into community groups. At present, his case is one of the “related” cases.
Estelle said: “FOI requesting is a fundamental part of investigative journalism. Preventing unnecessary secrecy in government was the explicit aim of FOI. It is inexplicable why a journalist should be permitted to make an FOI request if she e-mails the request from the Channel Tunnel (ie within the UK), but not if she e-mails the same request from her desk in her newspaper office in Italy. This has the potential greatly to harm investigative journalism, while simultaneously placing more workload on public authorities to identify whether a requester was located abroad at the time of the request being made and whether a requester had a sufficient connection to the UK (eg UK citizenship) to be within the ambit of the right.”
Sam said: “This case seems something of a trip down the procedural rabbit hole. My client owns property in the UK and is active in his community, can it really be right that he is not able to request information about that community’s issues? We also find ourself in the position where public authorities have already dealt with some or all of the requests in question, yet the Tribunal may refuse to consider appeals against those authorities’ decisions. There is an obvious danger of creating a situation in which overseas residents are entitled to some rights under the Act but not others.”
The Tribunal has requested submissions from the parties.
Estelle and Sam are both members of the Cornerstone Information Law Team.