Upper Tribunal (Administrative Appeals Chamber), November 30, 2016, [2016] UKUT 534 (AAC)

Resolution Date:November 30, 2016
Issuing Organization:Upper Tribunal (Administrative Appeals Chamber)
Actores:Savic v The Information Commissioner, The Attorney General's Office and The Cabinet Office (Information rights : Freedom of information - qualified exemptions)
 
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Decision Savic v (1) ICO, (2) AGO and (3) CO

AG Appeal [2016] UKUT 0534 (AAC)

DECISION

(1) This decision addresses the Appellant's appeals against:

a. the First Respondent's decision of 13 January 2015 (in respect of the Appellant's request for information from the 2nd Respondent dated 30 July 2013 (the AGO Request), and

b. the First Respondent's decision of 13 January 2015 on one document that is the subject of the Appellant's appeal which contains information within the ambit of the Appellant's request for information from the 3rdt Respondent dated 14 August 2013 (the CO Request) namely the document that the First Respondent concluded fell within the scope of s. 42 of FOIA (Legal professional privilege).

(2) The appeals are dismissed.

REASONS

Introduction

  1. These appeals were transferred to the Upper Tribunal on 12 June 2015. They are against two decisions made by the 1st Respondent (the Commissioner) relating to requests made under the Freedom of Information Act 2000 (FOIA).

  2. The first request was made on 30 July 2013 and was addressed to the 2nd Respondent (the AGO). It requested:

    details of the advice given to [HMG] in respect of its decision to take military action against the Serbian / FRY authorities in Kosovo in 1999 --------------- together with any documents that were material to the decision of [HMG] to commence aerial bombardment ofKosovo and Serbia

    We shall refer to this as the AGO Request. As can be seen from its terms it is directed to advice about a specific decision or decisions. It has been common ground that it was a request for the advice given by the Attorney General of the time (Lord Morris).

  3. The initial response to the AGO Request was a response neither confirming nor denying (NCND) whether information within the scope of the request was held. This response was based on s. 35(3) of FOIA. The Commissioner decided that the fact that the Attorney General (the AG) had given such advice was in the public domain when the request was made and so in effect that as the ``cat was out of the bag'' the public interest did not favour neither confirming nor denying whether information within the scope of the AGO request was held. Unsurprisingly, this decision was not appealed and on 26 March 2014 the AGO responded confirming that it held information within the scope of the request but withholding it in reliance upon the exemption set out in s. 35(1)(c) (Law Officers' Advice). This was part of the disputed information in the closed bundle before us (the Disputed Information).

  4. By a decision notice dated 13 January 2015 (the AGO Decision) the Commissioner upheld the AGO's reliance on s. 35(1)(c).

  5. On the appeal against the AGO Decision reliance is also placed on s. 42(1) (LPP) and s. 27(1) (International Relations). These additional claims are unsurprising because LPP clearly applies to the legal advice of the Law Officers and s. 27 is likely to be engaged by information included in instructions for and the content of the relevant advice.

  6. The second request was made on 14 August 2013 and was addressed to the 3rd Respondent (the CO). It requested:

    copies of all records concerning the decision to commence a military air campaign against Serbia and Kosovo on 24 March 1999. Specifically we request copies of:

  7. Minutes of Cabinet meetings, during which that decision was discussed.

  8. Memorandum between relevant Government Departments and specifically the Foreign and Commonwealth Office and the Ministry of Defence.

  9. Any other records relating to the decision

  10. So this request (the CO Request) is directed to information about a defined decision. It is framed in wide terms and is for records (not information) and specifically requests minutes of Cabinet minutes. Before us it was accepted that this related to minutes of any meetings of the full Cabinet and of Cabinet committees.

  11. The Commissioner's decision in respect of the CO Request is dated 13 January 2015 (the CO decision) and by it the Commissioner held that the CO was entitled to rely on:

    i) the exemptions in ss. 27(1)(a) to (d) and 42(1) in respect of the information it had confirmed it held and had provided on a closed basis, and

    ii) its NCND responses.

    Procedure

  12. At one stage the two appeals were to be held separately. A factor relating to this was the existence of proceedings in the Queen's Bench Division by Claimants, who are clients of the Appellant (who is a solicitor) against the Ministry of Defence (the QB proceedings). Those claimants are the widows of Serbs abducted or murdered in or near Pristina, between 16th June and 5th July 1999. The teenage son of one of the Claimants was murdered alongside his father and, in very short summary, the Claimants allege that British forces ``failed to protect their family members or properly investigate [the killings] and to date the perpetrators remain at large''. On 4th August 2016, Irwin J handed down a judgment on a number of preliminary issues in the QB proceedings ([2016] EWHC 2034 (QB)). . Irwin J decided the preliminary issues against the Claimants and the issue whether they will be given permission to appeal remains alive.

  13. The relevant date for our purposes is the time when the requests were responded to by respectively the AGO and the CO and so, after internal reviews, respectively May 2014 and January 2014 (see AGGPER v IC and FCO [2015] UKUT 0377 (AAC) at paragraphs 43 to 59).

  14. We gave directions that the Disputed Information was to be closed material and any argument or evidence that disclosed its content was to be advanced and held on closed basis. Further, we directed that if the AGO or the CO wanted to rely on any further closed material or evidence they were to make an application for that purpose. In the events that happened they did not seek to rely on any further closed material or evidence.

  15. Evidence was given on behalf of the AGO by a statement made by the Director General of the AGO (the AGO witness) and on behalf of the CO by two statements of a senior civil servant who had been Director General, Civil Service Group in the CO (the CO deponent).

  16. We did not hear any oral evidence from the persons who had made statements filed by the Appellant.

  17. The Appellant had provided a list of questions that she would want to be put to the Respondents' witnesses in any closed session. The vast majority of them could be and were put in open session. After each of the witnesses had finished their open evidence we clarified with the Appellant what she wanted us to...

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