On Trial: the Territorial Scope of the UK's Freedom of Information Act. Can anyone seek information?
Updated: 10 hours ago
As of October 2020, it was reported that the rights of those living abroad to submit freedom of information requests was to be tested in court, after more than a dozen cases – including one relating to Julian Assange’s extradition – were blocked.
The UK Freedom of Information Act (2000), has enshrined the general right of access to information held by public authorities in law. It is a vital tool, enabling individuals to hold those in positions of power to account. Since its inception, the Freedom of Information (FOI) regime has been accessible to all individuals, irrespective of the citizenship and residency of applicants. Indeed, the Information Commission (the independent information regulator) has issued guidance stating, “Anyone can make a freedom of information request – they do not have to be UK citizens, or resident in the UK.” Ambiguity has arisen on the basis that Acts of Parliament are presumed not to have “extra-territorial effect.” This has led to a situation where, despite their own guidance, the Information Commissioner has raised the issue of territoriality and whether an applicant abroad could rely on the FOI Act.
Consequently, over a dozen cases relating to FOI requests have been stayed pending a hearing at the First Tier Tribunal, as the Tribunal has “decided to deal with the territorial scope” of the FOI Act. Thirteen cases have been identified in which territoriality is relevant and five have been designated “lead cases'' to be heard at an unconfirmed date. The effect of this direction (under Rule 18 of the First Tier Tribunal) is that the Tribunal’s decision in the lead cases will be binding on the subsequent related cases. The key tension highlighted by this case is the idea that British institutions can operate abroad without public scrutiny from non-British citizens, as without FOI they will not have access to a mechanism which could provide accountability.
One of the stayed related cases has been brought by ILP client Emmanuel Freudenthal, an investigative journalist based in Ethiopia specialising in gross human rights violations. He has submitted FOI requests to Public Health England (PHE) with regards to the alleged trafficking of human blood and swabs from Sierra Leone to the UK without the consent of the concerned Ebola patients. This situation raises many concerns including human rights violations related to data protection, and the potential for biological asset stripping.
The implications of this tribunal hearing are far-reaching. The international transparency of the UK government is at stake, as is Britain’s reputation as a democracy open to accountability and scrutiny irrespective of the source. The UK’s global influence and diversity is often celebrated, therefore is it right that a non-British citizen resident in the UK may be unable to request information about issues affecting their community? Furthermore, should an investigative journalist based overseas be able to access vital information from the British government related to their work?
For those individuals, they may be left powerless and unable to use information to contest the decisions of powerful actors directly impacting upon their lives. The tribunal will now grapple with these questions, while the international transparency community watches on.
ILP will provide updates to this issue as they arise.
By Christopher Watkins- ILP Legal Fellow