Tribunal hearing appeal of MPS’s decision to block access to information about possible investigation of journalists on national security and counter-terrorism grounds

09 Jul 2021

Information Law

Stefania Maurizi, an Italian investigative journalist, will today continue her appeal before the First Tier Information Tribunal, part of her long-running battle for access to information from the Metropolitan Police Service (MPS). She is represented by Estelle Dehon, leading Jennifer Robinson of Doughty Street Chambers.

Ms Maurizi is seeking information held by the MPS in correspondence with the US Department of Justice (DOJ) about three named WikiLeaks journalists, Kristinn Hrafnsson, Sarah Harrison and Joseph Farrell. The MPS is refusing to release the information, citing national security and international relations exemptions, claiming the release of the information will harm counter-terrorism initiatives and UK relations with the US. Yesterday the Detective Chief Superintendent in charge of the MPS’s Counter Terrorism Command (CTC) gave evidence, arguing, amongst other things, that the work of CTC is so “naturally integrated” with that of the security services that it should benefit from the absolute exemption against disclosure for information relating to listed security bodies, despite neither the CTC nor the MPS being on that list.

Ms Maurizi’s appeal is considered so significant and concerning for journalists and media workers in the UK that the National Union of Journalists has intervened to make submissions about the application of these exemptions. They are available here.

In her appeal, Ms Maurizi argues that the national security and counter-terrorism related exemptions should not apply and that there is significant public interest in understanding whether the MPS, in its correspondence and in any cooperation with the US DOJ, has contributed to the criminal investigation of journalists living and working in the UK. The use by the US of covert wide-ranging warrants to obtain Hrafnsson, Harrison and Farrell’s Google mail information was widely condemned, including by the American Civil Liberties Union. Ms Maurizi further argues that there is public interest in understanding whether, in any correspondence and cooperation with the US investigation, has complied with freedom of expression protections in the UK and the standards expected of British law enforcement agencies.

Concern has been raised by the NUJ and other press freedom groups, including The European Centre for Press and Media Freedom (ECPMF), as part of the Media Freedom Rapid Response (MFRR) about the MPS’ reliance on vague national security arguments to refuse disclosure.

Background to the appeal

Ms Maurizi made her request back in 2017, following the revelation that Google had been served with a secret search warrant served by the US DOJ, which had required Google to hand over all of the emails of Mr Farrell, Ms Harrison and Mr Hrafnsson. Google had handed over that information but did not inform them that they had done so until two years later. When the subpoena became public, concern was raised by WikiLeaks’ US defence counsel and counsel for the American Council for Civil Liberties (ACLU) about the First Amendment concerns raised by handing over information from the accounts of WikiLeaks’ journalists and employees.

Ms Maurizi made the request to the MPS to better understand what role, if any, the UK authorities played in cooperating with the investigation.

The case has already involved a number of significant rulings, which were made after Ms Maurizi was forced to challenge various decisions of the MPS and the Information Commissioner’s Office (ICO).

First, Ms Maurizi had to appeal against the ICO and MPS decision which refused the information the grounds that the request involved the personal data of the three journalists. Ms Maurizi succeeded in that appeal, heard in November 2018, with the Tribunal finding that the MPS could not refuse to confirm or deny whether it held information about the three named WikiLeaks journalists on data protection grouds because Ms Maurizi had the journalists’ consent to pursue her request. The decision settled a general question of law of importance for all journalists: a data subject can give consent to the disclosure of personal information to another person under the Freedom of Information Act (FOIA) (judgment available here and further information is available here).

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.

Then, in August 2020, Ms Maurizi’s appeal was stayed by the Tribunal, pending a determination on a question of the Tribunal’s jurisdiction: that was, whether individuals or organisations outside of the United Kingdom can make requests for information under the Freedom of Information Act 2000 (FOIA). This was despite the fact that Ms Maurizi had previously made FOIA requests and litigated before the Tribunal (in 2018, against the Crown Prosecution Service (CPS) for information related to the Assange extradition case). Ms Maurizi made written submissions challenging the decision to stay her case and was then included in the lead cases to make submissions on jurisdiction. Ms Maurizi was the only individual requester to be represented by barristers at the hearing, which considered complex case law concerning extraterritorial jurisdiction.

On 27 January 2021, the Tribunal found that no territorial limitation should be read into FOIA, confirming the approach that had been taken by UK public authorities. This allowed Ms Maurizi’s appeal to progress to hearing. The decision is available here.

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