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Browning v The Information Commissioner & Anor [2014] EWCA Civ 1050 (30 July 2014)
This appeal raises an important procedural issue in relation to the Freedom of Information Act 2000. When the First-tier Tribunal (FTT) is hearing an appeal against a decision of the Information Commissioner (IC), in what circumstances (if any) can it lawfully adopt a closed material procedure (CMP) in which a party and his legal representatives are excluded from the hearing or part of it? Neither the Tribunals, Courts and Enforcement Act 2007 (TCEA) nor the First-tier Tribunal (General Regulatory Chamber) Rules 2009 (the FTT Rules) provides expressly for a CMP or for the appointment of a special advocate (SA) to protect the interest of an excluded party. The procedural history of this case illustrates the problem. Before detailing that history, it is appropriate to set it in the context of the underlying dispute.
Jonathan Browning is a respected journalist who works for Bloomberg News. On 11 September 2008 he emailed a Freedom of Information Act (FOIA) request to the Department of Business Information and Skills (DBIS) seeking information as to, inter alia, "which companies applied to the Export Control Organisation for export licences to Iran in the first and second quarters of this year".
As is well known, the licensing system in relation to exports to Iran results from certain resolutions of the United Nations Security Council and corresponding European Union measures. Licences are required for certain (but not all) categories of exports. In this country the licensing system is administered by the Export Control Organisation (ECO) under the aegis of DBIS. The governing domestic legislation is to be found in the Export Control Act 2002 and the Export Control Order 2008.
On 17 November 2009, DBIS replied to Mr Browning's application, stating that the requested information was exempt from disclosure pursuant to sections 41(1) and 43(2) of FOIA and that the public interest lay in maintaining the exemption. That decision was maintained following an internal review.
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Jonathan Browning is a respected journalist who works for Bloomberg News. On 11 September 2008 he emailed a Freedom of Information Act (FOIA) request to the Department of Business Information and Skills (DBIS) seeking information as to, inter alia, "which companies applied to the Export Control Organisation for export licences to Iran in the first and second quarters of this year".
As is well known, the licensing system in relation to exports to Iran results from certain resolutions of the United Nations Security Council and corresponding European Union measures. Licences are required for certain (but not all) categories of exports. In this country the licensing system is administered by the Export Control Organisation (ECO) under the aegis of DBIS. The governing domestic legislation is to be found in the Export Control Act 2002 and the Export Control Order 2008.
On 17 November 2009, DBIS replied to Mr Browning's application, stating that the requested information was exempt from disclosure pursuant to sections 41(1) and 43(2) of FOIA and that the public interest lay in maintaining the exemption. That decision was maintained following an internal review.
More...
