Journalists and UK citizens living overseas have had their appeals for information under the Freedom of Information Act (FOIA) put on hold after a tribunal questioned whether people living outside the UK have legal rights to use the Act.
The first-tier tribunal, which hears appeals from people seeking information from UK government departments, has raised questions over people’s eligibility to use the FOIA when they are non-UK citizens or UK citizens living outside the country.
The tribunal is also questioning whether it has the jurisdiction to hear appeals from people who are not living in the UK.
The first-tier tribunal is due to decide this month (January 2021) whether it can hear appeals from people who are outside the UK, in a case that challenges one of the fundamental principles of the FOIA – that it can be used by anyone, regardless of who they are or where they live.
The tribunal has stayed 16 appeals from individuals, including journalists, UK citizens overseas and foreign nationals seeking information from the UK government under freedom of information laws until the matter is decided.
Journalists speak out
They include an appeal from a French investigative journalist in Nairobi who has been seeking disclosures about thousands of Ebola-infected blood samples, taken from people in Sierra Leone without their consent and flown to the UK.
French investigative journalist Emmanuel Fruedenthal said the attempt to restrict access to the FOIA to UK citizens attacks the accountability of British institutions to its own citizens and those living in countries where they operate.
“This case concerns British citizens, and their right to know what their institutions do abroad, and what dangerous pathogens are brought to the UK,” he said. “But the story also concerns Sierra Leoneans and it was revealed by a Frenchman living in Kenya.”
Michael Richardson, an American writer living in Belize, whose appeal has also been stayed, said the FOIA imposes no restrictions on people simply because they live overseas.
“There is not a single word in the Freedom of Information Act that makes any territoriality exclusion,” Richardson told Computer Weekly. “The law simply says anyone may make an information request.
“I live in a Commonwealth country, the Queen is on my currency, yet it appears I cannot ask the University of London to answer a question.”
An appeal by Italian investigative journalist Stefania Maurizi against the Metropolitan Police’s refusal to disclose correspondence with the US about three UK-based journalists employed by WikiLeaks, for national security reasons, has also been put on hold.
Also in limbo is an appeal from a British financial crime correspondent based in Hong Kong who is seeking copies of correspondence between 10 British crown dependencies and overseas territories and the Home Office, over the 2017 Criminal Finances Bill.
Ben Lucas, a journalist with MLX Market Insight said: “I’ve been in Hong Kong for 18 months, corresponding on this case, which they were well aware of. And then, all of a sudden, they say, actually, we are not sure you can use the Freedom of Information Act from Hong Kong.
“It just feels deeply unusual for the court to be intervening at this stage in this way.”
Tribunal questions rights of people overseas
The tribunal began by asking whether it has jurisdiction to hear freedom of information 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.
She questioned whether the tribunal and the information commissioner had jurisdiction to hear cases from people, including UK citizens, when they made requests from overseas.
Worth’s letters quote a legal text book, Tribunal practice and procedure, written by an upper tribunal judge, who argues that “every legal system requires parties to have some form of connection with the country before they are allowed access to the courts and tribunals”.
A second textbook quoted by the registrar, Information rights law and practice, argues that there is a presumption that UK law, including the FOIA, to limit legal rights to “those persons within the country at the time at which the right is sought to be exercised”.
Tribunal judge Moira Macmillan ruled that it was important that the tribunal only deals with cases within its jurisdiction, 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 is territoriality.
The first-tier tribunal will decide the questions around jurisdiction for five lead appeals, and its outcome will be binding on a further 11 cases. Other parties include the information commissioner, the commissioner of the Metropolitan Police and the Home Office.
Italian journalists seeks disclosures on WikiLeaks from Met Police
One of the lead cases is a freedom of information request by Italian investigative journalist Stefania Maurizi, who is appealing against the Met Police’s refusal to disclose correspondence with the US about three UK-based journalists working for WikiLeaks.
Estelle Dehon, a barrister at Cornerstone Chambers, Maurizi’s legal representative, said she learned in August that the tribunal was questioning Maurizi’s right to use the FOIA or appeal to the tribunal when living in Italy.
“It was the oddest set of circumstances,” said Dehon. The tribunal told Maurizi that it was considering the issues in other appeals and would stay Maurizi’s own appeal until further notice, but declined to disclose the other appeals.
Dehon said the only way she could influence the tribunal’s decision was to put forward a set of submissions that the tribunal “could not possibly ignore”.
The tribunal added Maurizi, who writes for the Italian daily Il Fatto Quotidiano, as one of the five lead cases in September.
It subsequently narrowed its questions to the rights of non-UK citizens who were not resident in the UK.
“It was kind of an untenable position that UK citizens would not be able to exercise their rights under the Freedom of Information Act, so they have narrowed it down to non-UK citizens outside UK jurisdiction,” said Dehon.
Questions the tribunal will consider
- Does the FOIA impose a duty to inform a non-UK national whether it holds information requested when the person is outside the UK at the time of the request?
- Does the FOIA give a non-UK national the right to apply or a decision notice from the information commissioner if the application or the original information request was made when the requester was outside the UK?
- If the answer to either 1 or 2 above is no, but the information commissioner serves a decision notice anyway, does a non-UK national who made the FOIA request or the public body have the right to appeal the information commissioner’s decision?
- Does the first-tier tribunal have the jurisdiction to determine an appeal brought by a non-UK national while outside of the UK?
- If a non-UK national was outside the UK but within the European Union on the relevant date, what impact does that have on their rights under the FOIA?
- If the person making the FOIA request is a UK national, how does that impact their rights under the FOIA?
Barristers Estelle Dehon and Jennifer Robinson argued in a 19-page submission that there is “no general principle that the legislation of the United Kingdom is applicable only to British subjects or persons resident here”.
Even if this was not the case, they argued that Maurizi has sufficient connections with the UK for her request to fall within the ambit of the FOIA.
Maurizi, who took a masters at Imperial College in London, speaks regularly at UK conferences, has written articles in English for British and Italian publications, and is an adviser to the website Declassified UK – establishing a clear connection to the UK.
Tribunal clashes with information commissioner
The case places the first-tier tribunal at loggerheads with UK information commissioner Elizabeth Denham.
The information commissioner argues that under the FOIA, anyone can request information from the UK government, regardless of their geography or connection with the UK.
Denham applied to transfer the appeals from the first-tier tribunal to the upper tribunal, which she said has the power to set a binding ruling that is likely to reduce delays in the tribunal’s caseload, on 19 November 2020.
She argued that the jurisdictional issues raised by the tribunal question fundamental assumptions relating to territoriality that have guided the Information Commissioner’s Office (ICO) and the tribunal for the past 15 years and will affect a large number of appeals.
The ICO also suggested that, given that all parties in the case agree that the jurisdiction of the FOIA extends overseas, they could agree in writing that the tribunal has jurisdiction. “The whole thing would go away – each appeal would just proceed as normal,” said Dehon, Maurizi’s barrister.
But a tribunal judge pointedly dismissed Denham’s application to the upper tribunal in 2020, saying: “The first-tier tribunal is perfectly capable of considering complex and important issues. Indeed, it does so on a regular basis.”
In legal submissions filed on 1 December, the information commissioner argued that it was the intention of Parliament that the FOIA would ensure that public authorities behave in a transparent way, and that the Act could be used by anyone, irrespective of their nationality or geographic location.
Lawyers representing some of the people impacted by the stay point out that the principle was confirmed by a ruling by the information tribunal in 2007, which found that the FOIA should be operated in a way that is “blind” to both the applicant and their motives.
The information commissioner’s complaint form for people who want the regulator to review government decisions not to disclose information, contains no requirements for people to confirm their UK citizenship or residence, or to state any other connection to the UK.
And according to a House of Commons Library briefing paper on the FOIA, published in 2019, “anyone has the right to ask for information – people living abroad, non-UK citizens, journalists, political parties, lobby groups and commercial organisations”.
Legal experts argue that if Parliament had intended to impose a requirement that the FOIA could only be used by UK residents, UK nationals or people present in the UK, it would have said so in drafting the legislation.
The FOIA imposes duties on UK public authorities to make information available to the public, regardless of the place of birth, nationality, residence or characteristics of the person requesting the information, the ICO is expected to argue.
The tribunal is due to hold a preliminary two-day hearing later in January 2021.
