Tribunal Provides Written Reasons on FOIA Territorial Limitation
The First-tier Tribunal has made available its written reasons for deciding that no territorial limitation should be read into the Freedom of Information Act 2000 (FOIA). The background to the case and a description of the hearing before Upper Tribunal Judge O’Connor and Judge Macmillan on 26-27 January 2021, including the arguments made by the parties, are available here.
In its Decision, the Tribunal explained that, although the parties in the five lead cases agreed that individuals or organisations outside of the United Kingdom could exercise the rights under FOIA to request information, complain to the Information Commissioner and appeal to the Tribunal, it was nevertheless required to consider the question. As the Tribunal is a “creature of statute”, it was required to be satisfied that it had jurisdiction to determine the appeals.
The Tribunal reviewed the case law concerning the statutory presumption against UK legislation having extraterritorial effect, focusing on the origin of the presumption being in the conventions and courtesies of “international comity”. It held that FOIA does not operate in a way that infringes upon international comity, because sections 1(1) and 50(1) FOIA provide individuals with rights, but do not impose extraterritorial obligations: the obligations imposed by FOIA fall only on those within the UK.
The Tribunal reiterated that the purpose of FOIA is to make provision for the disclosure of information held by public authorities, reflecting the value attached to transparency and openness in the workings of public authorities in modern society. It held that this purpose is furthered if the pool of persons who can exercise the right of access to information in the UK is as wide as possible. Further, it would impinge on the purpose of the legislation to limit the ability of those exercising that right to ask the Information Commissioner and the Tribunal to vindicate that right.
The decision is available HERE .
Estelle Dehon, leading Jennifer Robinson of Doughty Street, appeared for the Appellant in one of the lead cases, the Italian investigative journalist Stefania Maurizi.