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The Long Reach of FOIA – Julian Assange and Access to Information

Introduction

Today a senior district judge will rule on whether the arrest warrant against Julian Assange for breaching his bail in 2012 and seeking diplomatic asylum in the Ecuadorian Embassy should be upheld.

For information law lawyers, the arguments made about why the warrant should be discontinued are of particular interest, because they were based partly on e-mails between the Crown Prosecution Service (CPS) and the Swedish Prosecution Authority (SPA) released to Italian investigative journalist Stefania Maurizi in response to two freedom of information requests.

Those e-mails showed that, early in the extradition process, the CPS advised the SPA against interviewing Assange in London, despite the potential for this to progress matters. Once Assange had entered the Ecuadorian Embassy, the CPS urged the SPA not to withdraw the European Arrest Warrant, despite the SPA's concern about mounting costs and Swedish laws requiring consideration of intrusion and detriment to the suspect.

The case

So how did the e-mails emerge? Information law proceedings in the UK under the Freedom of Information Act 2000 (FOIA) show what happened. Ms Maurizi made requests in Sweden under the Swedish access to information laws and in the UK under FOIA. She asked for all correspondence between the CPS and SPA concerning the Assange case. The SPA released some material; the CPS refused to release anything. Ms Maurizi complained to the Information Commissioner about the CPS's refusal and, almost a year later, the Commissioner dismissed her complaint. So Ms Maurizi appealed to the First-tier Tribunal, which heard her appeal over two days in November 2017.

As a result of the appeal process, the CPS reviewed its decision and began to release information. It released several tranches of e-mails, in particular in August 2017, which included the e-mails relied on by Assange's lawyers to justify discontinuing the arrest warrant. However, the e-mails were redacted (some almost entirely blacked out published on Twitter), so Ms Maurizi pursued her appeal to receive the redacted information.

Ms Maurizi also requested all correspondence concerning Assange between the CPS and the US State Department and Department of Justice, as well as with the Ecuadorian Embassy. The CPS refused to confirm or deny whether it held such information. That refusal persisted despite the appeal. It emerged that this was as a result of a blanket policy to refuse such requests, because of the potential for "tipping-off" individuals.

The Tribunal gave judgment in December 2017 – the decision is available here. It emphasised that the CPS could not apply a blanket policy of neither confirming nor denying (NCND) whether it holds information concerning extradition requests, and gave important advice about "NCND Policies". The Tribunal recognised it is possible to have such a policy, but that the policy must require careful assessment in each case of the public interest considerations in favour and against maintaining the policy. Decision-makers must be willing to make exceptions to such policies where necessary.

Nevertheless, the Tribunal refused Ms Maurizi's appeal. It found that confirming or denying the existence of the correspondence with the US would be only of "marginal benefit to the public". An application to appeal against this has been made.

On the e-mails between the CPS and the SPA, the Tribunal acknowledged that there was a strong public interest in disclosure of the information. It described WikiLeaks as a "media organisation" (for more on this aspect of the decision, see my interview published by LexiNexis). It averted to evidence that Assange is a media publisher and free speech advocate who is in a situation characterised by a UN body as arbitrary detention.

The Tribunal also recognised a public interest in increasing understanding of how extradition proceedings are handled by the CPS, revealing the pressures brought to bear on decision-making by the CPS and explaining the use of government resources. But the tribunal held this public interest was outweighed in the circumstances of the case because the SPA's confidentiality in the redacted material should be maintained. This, too, is the subject of an application to appeal.

Legal implications of the case

The appearance of the e-mails released under FOIA in the subsequent litigation concerning the Assange arrest warrant reminds us that release of information under FOIA is release to the world. The potential reach of released information is significant, particularly in such a high profile and controversial case, with a vigorous life outside the information realm.

It also throws into relief the approach generally taken in FOIA appeals to assessing the public interest in disclosure of information. The Tribunal considers the public interest as at the time of the decision by the public authority to withhold the information, rather than at the time of the appeal hearing (which can be a year or two later). This is difficult to justify given the Tribunal is remaking the decision, considering the matter afresh, not just reviewing the decision-maker's determination.

In a case such as the present, it makes little sense – the public interest in confirming or denying correspondence between the CPS and the US about Assange should be judged against comments in 2017 where CIA director Mike Pompeo said Assange had no first amendment (free speech) rights and the CIA was working to "take down" WikiLeaks, and the US Attorney General Jeff Sessions called Assange's arrest "a priority". The Tribunal's timing of consideration of the public interest is also subject of an application for permission to appeal.

Estelle Dehon represented Stefania Maurizi before the Tribunal and is representing her on appeal.