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‘Victory for free speech and openness’ after tribunal confirms no territorial restrictions to FOIA
Freedom of information tribunal rules that investigative journalists and others can use the Freedom of Information Act if they live outside the UK or are not British citizens
A tribunal has decided against restrictions limiting access to the Freedom of Information Act (FOIA) 2000 to UK citizens living in the UK.
Lawyers have hailed the decision as a victory for investigative journalism, free speech and openness, and the accountability of government.
The First-Tier Tribunal ruled last Wednesday that there is no territorial limit on the UK’s Freedom of Information Act, upholding the right of anyone of any nationality to use the Act, no matter where they live.
“This is a significant victory for free speech and for openness,” said barrister Estelle Dehon after the verdict. “Journalists, individuals and organisations outside the UK play a crucial role in ensuring transparency and fighting misinformation, both in the UK and more widely. The FOIA, for all its challenges, is key to that.”
After a day and a half of arguments, Upper Tribunal judge Mark O’Connor and Tribunal judge Moria Macmillan give the verdict: “No territorial limitation should be read into FOIA.” They will give their reasons in writing at a later date.
Italian investigative journalist Stefania Maurizi, the Home Office and the information commissioner argued that people should be able to use the FOIA irrespective of their nationality or geographic location.
The tribunal gave its decision on five linked appeals, which had been stayed after the tribunal raised questions about its territorial jurisdiction. A further 12 connected appeals have also been stayed by the tribunal.
Met Police fights request to disclose documents on UK WikiLeaks staff
Maurizi had submitted an FoI application to the Metropolitan Police Service to disclose correspondence between the force and the US Department of Justice on WikiLeaks staff, including two British citizens.
The Met disclosed in 2019 that it had shared correspondence with the US since at least 2013 on at least one member of WikiLeaks’ UK staff, which include former investigations editor Sarah Harrison, editor in chief Kristinn Hrafnsson and section editor Joseph Farrell.
The three WikiLeaks employees learned in 2014 that a court in East Virginia had ordered Google to disclose their personal emails, contacts, calendar entries and log-in IP addresses to the US government, as part of an investigation into alleged violations of US federal laws, including the Computer Fraud and Abuse Act and the US Espionage Act.
The National Union of Journalists filed a legal submission last year in support of Maurizi opposing the use of terrorism legislation to clamp down on journalists working in the public interest.
“Journalism is not a crime; journalists report on national security; the law should not be used to curtail their reporting in the public interest,” it said.
Ben Lucas, a British financial crime correspondent based in Hong Kong, writing for Mlex Market Insight, is seeking copes of correspondence between 10 Crown dependencies and overseas territories and the Home Office over the 2017 Criminal Finances Bill.
French investigative journalist Emmanuel Freudenthal, who is based in Nairobi, has filed an appeal to disclose information about the transport of infected Ebola blood samples from Sierra Leone to the UK, that would allow British citizens to know about the actions of British public authorities overseas.
The tribunal had stayed all three appeals on the grounds that the journalists were not resident in the UK.
Journalists are ‘democratic watchdogs’
Estelle Dehon, barrister for Maurizi, told the tribunal that blocking overseas FOIA requests would damage the accountability and openness of government and damage democracy.
She said journalists had been recognised by the courts as “democratic watchdogs”. The information commissioner has recognised the importance of FOIA in combating fake news and increasing trust.
Estelle Dehon, barrister
“It is inexplicable why a journalist could be permitted to make an FOIA request stuck halfway across the Channel on the Eurostar, but not at her desk at home or a desk in Hong Kong or Nairobi,” said Dehon.
Investigative journalism of the sort undertaken by Maurizi and Lucas is based on documentary sources, Dehon told the tribunal, and the FOIA is an important route to accessing those documents.
Maurizi has previously brought FoI litigation in Sweden, the US and Australia, said Dehon, adding: “Never has one response come back [saying] you were not in jurisdiction, so your request was not a proper one.”
FOIA is ‘applicant blind’
For the past 15 years, the FOIA has been accepted as being “applicant blind”, the tribunal heard. This means government authorities must respond in the same way to each request, irrespective of the person making it.
Dehon said that if the tribunal ruled that only UK citizens could use the FOIA, that would present huge administrative burdens to public authorities in the UK.
People would have to provide documents and evidence to government departments when they filed FOIA requests and give oral evidence on their nationality when they made an appeal, she said.
Mohamed Mohamood Abdullah, who attended the hearing by video link form Somalia, has used the FOIA to request the service records of his British father, who he said had been wounded during service, from the Royal Navy.
He and other non-British citizens would have to produce documents and evidence to show they had enough connection to the UK to appeal to the tribunal, if the judges found that only UK citizens were eligible to use the Act, said Dehon.
Freedom of information should be open to everyone
Harini Iyengar, representing the information commissioner, said the hearing was unusual because all the parties were taking the same view – that the FOIA should be open to anyone.
“We have racked our brains to find arguments to counteract our own submissions, but have not been able to do so,” she said.
Questions about why the UK taxpayer should fund large numbers of FOIA requests made outside the UK were not matters for the tribunal, she added.
Iyengar said Parliament’s intention in introducing the Freedom of Information Act was to ensure public authorities had proper record-keeping and were accountable.
“The requesters play the role of unpaid mystery shoppers,” she said. “They relieve the commissioner from having to send out her own mystery shoppers. It does not matter where or who they are.”
The information commissioner has operated for the last 15 years on the basis that it is immaterial whether anyone requesting information is a UK citizen, whether they are outside the UK, whether or not they are an EU citizen, whether they are a journalist, whether they are a UK citizen living in the EU or outside the EU, said Iyengar.
There is no provision in the Freedom of Information Act for the tribunal to develop access rules to say who can make a request, she said. “There is simply no starting point for the tribunal to do that.”
The “mischief” Parliament was trying to address in the FOIA was how UK authorities conducted themselves with record-keeping and access to their records, she said.
The idea that people outside the UK don’t have rights under the FOIA is a “flimsy argument that can easily be pushed aside”, she added.
“The information commissioner is not aware of any case where a UK public body refused to act because the applicant was not in the UK, born overseas, not a UK citizen or resident, or did not have a connection with the UK,” said Iyengar.
FOIA by Twitter
People can submit FoI requests through email or a social media account such as a Twitter without submitting proof of their location, Iyengar told the tribunal.
She said it was not clear how a public authority would be able to verify the connection of people to the UK, how the information commissioner would be able to verify that the public authority had reached the right conclusions, and how a tribunal would verify the information commissioner’s conclusions. “There is no provision in the FOIA.”
It was unthinkable that Parliament would have introduced any limit on an FOIA applicant, she said. There is not even a requirement to give a postcode and many requests are made by email.
“An interpretation that FOIA did not grant rights outside the UK would be at odds with the whole tenor of FOIA,” said Iyengar. “FOIA is concerned with how information should be put in the public domain, and not on the character of the person applying.
“There is no suggestion, for example, that international media organisations would be prevented from using FOIA.”
FOIA is a ‘constitutional right’
Estelle Dehon, representing Maurizi, told the tribunal that the purpose of the FOIA was not to ensure that public authorities have pristine record-keeping systems.
The idea put forward by the information commissioner that people who use the FOIA were “mystery shoppers” whose role was to ensure that government departments had good record systems was “so misplaced”, she said.
The information commissioner has said that under the Act, people have a right to know about the activities of public authorities unless there is a good reason not to, said Dehon.
“It is a constitutional right. It gives power to individuals to hold public authorities to account,” she added.
Judges have recognised that secrecy can become corrosive and the FOIA was a move against such secrecy, said Dehon.
“The requester blind principle also shows that the purpose of the Act was to make the exercise of the right…for the requester as easy as possible,” she added. “To imply into an Act a territoriality limitation goes against that purpose and understanding.”
Parliament did not restrict FOIA
Stephen Kosmin said the Home Office was of “like mind” with the information commissioner that the FOIA could be used by anyone in any country.
Parliament did not introduce any restrictions for nationality when it passed the Act in 2000, he said. “The drawing of lines around nationality would have been striking had that been Parliament’s intention in 2000. Were such a construction have been intended, Parliament would have said so.”
Kosmin added: “The idea of someone stepping onto the white cliffs of Dover to send an email before sailing back is absurd.”
The Cabinet Office, which has responsibility for the Act, permits people to apply for information by email by supplying a postal address, he said.
But there is no requirement for that address to be the address at which they live, said Kosmin. “I could record my address as 10 Downing Street and send my email from Paris,” he observed.
There is no provision or regulation that provides authority for the regulator or the tribunal to enquire into the location of an applicant and no case law requiring one, he said.
The tribunal had raised questions about the jurisdiction of the FOIA under a “rule of statutory construction” that presumes that UK legislation applies only to those resident or present in the UK.
Tribunal stayed appeals over nationality concerns
The First-Tier Tribunal began questioning whether it has jurisdiction to hear FoI appeals in the wake of the first Covid-19 lockdown in March 2020.
Tribunal registrar Rebecca Worth issued a series of stays on FOIA appeals from people who were based overseas. He decision was upheld by judge Moira Macmillan, following an appeal by one of the parties.
Macmillan, who has previously worked for the Foreign and Commonwealth Office’s legal directorate, ruled that one of the issues that might affect the jurisdiction of the tribunal was territoriality.
Verdict confirms broad right of access to information
Speaking after the verdict, Estelle Dehon of Cornerstone Barristers, representing Maurizi, said the decision “confirms that the right of access to information is broad” and reinforces the importance of the FOIA.
She said public authorities would have faced a deleterious impact on their workload and resources if a territorial limit had been placed on the FOIA.
Sam Fowles, who is representing another appellant in one of the stayed cases, said transparency was essential to democracy. “Construing FOIA as excluding individuals, including British citizens, who make requests from foreign countries would have been arbitrary and wrong,” he added.