Tribunal Confirms No Territorial Limitation in FOIA
The First-tier Tribunal has given its decision on jurisdiction in five linked appeals, each of which raises questions about whether individuals or organisations outside of the United Kingdom can make requests for information under the Freedom of Information Act 2000 (FOIA). The five cases, behind which 20 other cases are stayed, were listed so that the Tribunal could consider whether FOIA has “extra-territorial effect” – i.e. whether the legislation extends a right to any person anywhere in the world to make a freedom of information request of a public authority in England, Wales or Northern Ireland, and to complain to the Commissioner and appeal to the Tribunal if dissatisfied with the decision.
On 27 January 2021, after a day and a half of hearing, Upper Tribunal Judge O’Connor and Tribunal Judge Macmillan announced their decision: no territorial limitation should be read into FOIA. The Judges’ reasons will be given in writing at a later date.
The appeal by Stefania Maurizi, an investigative journalist based in Italy and writing for Il Fatto Quotidiano, relates to her request for information held by the Metropolitan Police Service in correspondence with the US Department of Justice concerning three WikiLeaks journalists (Kristinn Hrafnsson, Sarah Harrison and Joseph Farrell), and was one of the 20 cases which were stayed. Jennifer Robinson of Doughty Street Chambers acts for Ms Maurizi with Estelle Dehon of Cornerstone Chambers.
In August 2020, Ms Maurizi’s appeal was stayed by the First-tier Tribunal, pending the determination of the preliminary issue of jurisdiction in four cases designated “lead” cases, which would be heard together. In September 2020, Ms Maurizi made written submissions challenging the decision to stay her case and requested that her appeal be included with the lead cases to enable her to make submissions on jurisdiction. As a result, Ms Maurizi was the only individual requester to be represented by barristers at the hearing, which considered complex case law concerning extraterritorial jurisdiction.
The Tribunal had raised the question of jurisdiction on the basis of a rule of statutory construction which presumes that UK legislation only applies to UK citizens or those resident or present within the UK. The Tribunal heard argument from the Information Commissioner, the Home Office and from Ms Maurizi. They argued that:
Section 1(1) of FOIA, which grants to “any person” a general right of access to information held by public authorities, should be given its natural interpretation, meaning that anyone can make a request. They argued for the same interpretation of section 50(1), allowing “any person” to complain to the Information Commissioner, and section 57 allowing appeal to the Tribunal.
The Tribunal should not imply a territorial limitation into FOIA, which would require the requester to be physically present in the UK or to have a close connection with the UK such as citizenship in order to make a valid FOIA request and validly complain to the ICO about a request.
The presumption was weak in relation to FOIA, given that the operation of the legislation did not offend the sovereignty of other states, and that to read in territorial limitations would destroy the principle of requester blindness and would lead to serious practical impacts on public authorities, who would be obliged to determine whether a requester was located abroad at the time of making the request and, if so, whether the requester was a UK national or had a sufficient connection to the UK to bring him or her within the ambit of FOIA.
The Tribunal’s decision has come as a relief to journalists, who were concerned that the any territorial limitation would undermine their ability to access information and source documents. The lead cases included two requests by investigative journalists: Ms Maurizi and Ben Lucas, a British financial crime correspondent based in Hong Kong and writing for MLex Market Insight, who is seeking copies of correspondence between 10 British crown dependencies and overseas territories and the Home Office over the 2017 Criminal Finances Bill.
Background to Ms Maurizi’s appeal
Ms Maurizi previously succeeded in an appeal against the ICO and the Metropolitan Police, which – in finding that the Metropolitan Police could not refuse to confirm or deny whether it held information about the three named WikiLeaks journalists– 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. Her appeal is considered so significant for journalists that the National Union of Journalists has intervened to make submissions about the application of these exemptions.