Tribunal Confirms No Territorial Limitation in FOIA

28 Jan 2021

Information Law

 In what may be one of the most important FOIA cases of the year, the First-tier Tribunal has given its decision on jurisdiction in five linked appeals, each of which raises questions about whether individuals or organisations outside of the United Kingdom can make requests for information under the Freedom of Information Act 2000 (FOIA). The five cases, behind which 20 other cases are stayed, were listed so that the Tribunal could consider whether FOIA has “extra-territorial effect” – i.e. whether the legislation extends a right to any person anywhere in the world to make a freedom of information request of a public authority in England, Wales or Northern Ireland, and to complain to the Commissioner and appeal to the Tribunal if dissatisfied with the decision.

 Estelle Dehon is representing the appellant in one of the lead cases, investigative journalist Stefania Maurizi.

 The Limits of FOIA?

On 27 January 2021, after a day and a half of hearing, Upper Tribunal Judge O’Connor and Tribunal Judge Macmillan announced their decision on the limits of FOIA: no territorial limitation should be read into FOIA. The Judges’ reasons will be given in writing at a later date.

The Tribunal heard argument on behalf of the Information Commissioner, the Home Office and Italian investigative journalist Stefania Maurizi. They argued that section 1(1) of FOIA, which grants to “any person” a general right of access to information held by public authorities, should be given its natural interpretation, meaning that anyone can make a request. They argued for the same interpretation of section 50(1), allowing “any person” to complain to the Information Commissioner, and section 57 allowing appeal to the Tribunal. The parties argued that the Tribunal should not imply a territorial limitation into FOIA, which would require the requester to be physically present in the UK or to have a close connection with the UK such as citizenship in order to make a valid FOIA request and validly complain to the ICO about a request.

The Tribunal had raised the question of jurisdiction on the basis of a rule of statutory construction which presumes that UK legislation only applies to UK citizens or those resident or present within the UK. The parties argued that the presumption was weak in relation to FOIA and that to read in territorial limitations would destroy the principle of requester blindness and would lead to serious practical impacts on public authorities, who would be obliged to determine whether a requester was located abroad at the time of making the request and, if so, whether the requester was a UK national or had a sufficient connection to the UK to bring him or her within the ambit of FOIA.

The Tribunal’s decision has come as a relief to journalists, who were concerned that the any territorial limitation would undermine their ability to access information and source documents. The lead cases included two requests by investigative journalists:

  • Stefania  Maurizi, based in Italy and writing for Il Fatto Quotidiano, who is seeking information held by the Metropolitan Police Service in correspondence with the US Department of Justice concerning three named individuals (Kristinn Hrafnsson, Sarah Harrison and Joseph Farrell), all of whom work or worked for WikiLeaks and all of whom the MPS accepts are journalists; and
  • Ben Lucas, a British financial crime correspondent based in Hong Kong and writing for MLex Market Insight, who is seeking copies of correspondence between 10 British crown dependencies and overseas territories and the Home Office over the 2017 Criminal Finances Bill.

 Estelle Dehon, who is leading Jennifer Robinson of Doughty Street, made submissions at the hearing. She said of the decision: “This decision is very welcome and reaffirms the approach that public authorities and the ICO already took to interpreting FOIA. It confirms that the right of access to information is broad, reinforcing its importance in supporting the long-term health of our democracy, while avoiding the deleterious impacts on public authorities’ workload and resources which would have resulted from a territorial limitation being implied into FOIA.”

 Sam Fowles is representing the appellant in one of the stayed cases. He said: “This is an entirely sensible decision and huge credit goes to all the parties and lawyers involved in the designated ‘lead’ cases. Transparency is essential to democracy. Construing FOIA as excluding individuals (including British citizens) who make requests from foreign countries would have been arbitrary and wrong. This ruling confirms that FOI requesters will continue to stand in the shoes of “the public” and claims will continue to be decided on principles of general public interest rather subjective interrogation of individual appellants.”

 The case was previously covered in Computer Weekly and The Guardian.

 Ramifications of the Decision

Now the lead cases and those cases stayed behind them can progress before the Tribunal. Stefania Maurizi’s appeal follows on from her previous success in an appeal against the ICO and the Metropolitan Police: judgment available here and further information is available here. That decision established that the Metropolitan Police could not refused to confirm or deny whether it held information about Kristinn Hrafnsson, Sarah Harrison and Joseph Farrell because it was personal information and to do so would breach the data protection principles.

 On 30 January 2019 the Metropolitan Police confirmed the journalistic status of Kristinn Hrafnsson, Sarah Harrison and Joseph Farrell and that it holds information about the in correspondence with the US Department of Justice, but refused to disclose that information, citing national security and terrorism-based FOIA exemptions. Ms Maurizi complained to the ICO and subsequently appealed to the Tribunal; details are available here.

Maurizi’s appeal is considered so significant that the National Union of Journalists has intervened to make submissions about the application of these exemptions: more details available here.

 How did the Jurisdiction Point Arise?

It is still not clear why the Tribunal raised the jurisdiction questions, given that the ICO’s guidance has for many years been that anyone can make a request for information, “regardless of who they are or where they live”. Since the coming into force of FOIA, public authorities have been dealing with requests made by those outside the UK; the Commissioner has been making decisions on applications from those outside the UK and the Tribunal has been exercising jurisdiction over such appeals.

 On 26 August 2020, Ms Maurizi’s appeal was stayed by the First-tier Tribunal of its own motion. The Tribunal indicated that it would be considering the preliminary issue of jurisdiction. The stay was indefinite and Ms Maurizi was given no further details. She subsequently discovered that four other appeals had been designated “lead” cases and would be heard together to consider the jurisdiction question.

 On 18 September 2020, Estelle made written submissions challenging the decision to stay her case and asking to be included within the lead cases. On 29 September 2020 the Tribunal added Ms Maurizi’s case to the lead cases, giving her the right to appear and make submissions at the hearing on 26-27 January 2021.

 Estelle Dehon and Dr Sam Fowles are members of Cornerstone’s Information Law Team