The First-tier Tribunal has overturned a decision by the Information Commissioner and ordered the Metropolitan Police ("Met Police") to confirm or deny whether it holds correspondence with the United States Department of Justice concerning three WikiLeaks journalists: Kristinn Hrafnsson (former WikiLeaks' spokesperson and current WikiLeaks' editor), Sarah Harrison (former WikiLeaks' investigative editor) and Joseph A. Farrell (WikiLeaks' section editor).
All three individuals had been the subject of search warrants served by the US Department of Justice in March 2012 requiring Google to hand over all of their e-mails. Google complied but did not inform the individuals it had done so until almost three years later.
Stefania Maurizi, an experienced investigative journalist working with La Repubblica, is investigating the targeting of Mr Hrafnsson, Ms Harrison and Mr Farrell by the US and other governments due to their prominent role in WikiLeaks. She made a request to the Met Police under the Freedom of Information Act 2000 ("FOIA") for a copy of any correspondence it held with the US Department of Justice from June 2013 – June 2017 concerning the three journalists.
When the Met Police initially refused to confirm or deny whether it held the information because it was personal information and to do so would breach the data protection principles, Ms Maurizi obtained the consent of each of the individuals to release of the information "to the Italian journalist Stefania Maurizi".
The Met Police continued to refuse to confirm or deny, stating that the consent was not sufficient and that the request subverted the proper statutory scheme: the more appropriate route was for the individuals to obtain their own information by making a subject access request under the Data Protection Act. The Information Commissioner upheld this.
Ms Maurizi appealed. She argued the consents meant confirmation or denial that the information is held and release of any information was fair and lawful under data protection legislation. She also emphasised that it was an important tool for an investigative journalist to be able to make freedom of information requests with the consent of the relevant individual. If an individual wished a journalist to be able to report a story about that individual, which required obtaining their personal data, that individual should not be required to apply for it themselves (or instruct lawyers to do so, at cost, on their behalf) instead of simply authorising the journalist to obtain the information.
The First-tier Tribunal held that the Met Police and the Information Commissioner had taken the wrong approach.
The consents of the individuals were sufficient: the consents were for the release of the personal information to a known investigative journalist and were made by individuals who emphasised openness.
Crucially, the Tribunal clarified the relationship between subject access and freedom of information:
"It was important moreover, in the Tribunal's view, not to elevate subject access rights over rights to information under FOIA. Individuals should in principle be free, with appropriate consent provided, to rely upon an investigative journalist to seek to obtain their personal data and not be put to the bother of having to make a subject access request. This was not seeking to 'circumvent the statutory scheme' as suggested by the Met Police. Both routes were equally valid and there was no suggestion in section 40(5)(b) that subject access data protection rights took precedence where the data involved third-party personal data (as opposed to the situation in which the requester was the subject to the personal data, when FOIA makes it clear that the DPA and subject access rights do indeed take precedence – see section 40(1)."
The Tribunal also recognised there was a public interest in the Met Police confirming or denying whether it held the information.
Ms Maurizi argued very little about the US investigation against Ms Harrison, Mr Hrafnsson and Mr Farrell, and even less is known about any investigation on them conducted by the UK authorities.
It is not known whether they are themselves the subject of criminal investigation, or whether they are considered to be sources of evidence against others, for example Julian Assange or any of the alleged sources of WikiLeaks material.
The Tribunal accepted that Ms Maurizi had a legitimate interest in knowing whether the Met Police held the requested information and that the individuals wished her to know the information.
The Tribunal ordered the Met Police to confirm or deny whether it holds the information before 14 January 2019. The decision is available here.
Estelle Dehon of Cornerstone Barristers represented Stefania Maurizi. Estelle led Jennifer Robinson of Doughty Street Chambers.