Security bodies, private emails: parallels between the UK and US – Robin Hopkins

12 April 2012 by Guest Contributor

Today was one of striking parallels between the USA and the UK in terms of litigation concerned with access to information.

APPGER and security bodies

First, one of The Independent‘s main stories this morning concerned a case brought in the US by the UK’s All Party Parliamentary Group on Extraordinary Rendition (APPGER). Readers will recall that in the UK, APPGER was partially successful before the Upper Tribunal last year; the decision of the First-Tier Tribunal in a second case (the hearing of which concluded in February 2012) is awaited.

In the US, APPGER requested information on extraordinary rendition from the Department of Defense, the CIA, the Department of Homeland Security, the Department of Justice , the Department of State, the FBI and the National Security Agency. Those requests were largely refused. APPGER appealed to the Courts. The US District Court, District of Columbia, upheld the Defendants’ partial motion to dismiss APPGER’s appeals. Its judgment is available here.

Prior to 2002, the exemptions under the Freedom of Information Act (FOIA) in the US turned on the nature of the requested information, not the identity of the requester. In 2002, however, Congress amended FOIA to include a “foreign government entity exemption”, which provides that no agency that is a member of the “intelligence community” shall make any record available to “(i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or (ii) a representative of a government entity described in clause (i).”

The Court held that APPGER fell within this exemption. It construed the terms “government entity” and “representative” according to their “plain meaning” and not according to UK law. On this basis, it found (contrary to APPGER’s arguments) that the UK Parliament is a “government entity”: it is the “primary organ tasked with the expression of sovereign political authority and its enactment into law” and is integral to the government of the UK. APPGER was held to be a “subdivision” of Parliament, and its chair, Andrew Tyrie MP (who has never been a government minister) was held to be a “representative” for the purposes of part (ii) of the exemption.

APPGER had also argued that its members had made their requests in their capacities as individuals rather than public officials. The Court rejected this argument in striking terms:

It would be particularly inappropriate for the court to adopt the plaintiffs’ suggestion because their proposed exception would, without doubt, swallow the rule. The defendants describe the portentous consequences of the plaintiffs’ argument if drawn to its logical extreme: recently deceased North Korean dictator Kim Jong Il, despite his status as the Supreme Leader of the Democratic People’s Republic of North Korea, would have been able to file a FOIA request as long as he claimed to do so in his “individual capacity.”… It is not necessary to follow the defendants’ parade of horribles to its furthest reaches, however. Instead, the court observes that a statute susceptible of either of two opposed interpretations must be read in the manner which effectuates rather than frustrates the major purpose of the legislative draftsmen…. If the court is to give any meaning to the foreign government entity exception, this provision cannot turn on such evanescent factors as the subjective intent of the individual who files the claim. To do so would essentially allow a system of voluntary compliance — which is to say, no compliance at all. Accordingly, the court rejects the contention that the plaintiffs may evade the foreign government entity exception by filing in their “individual capacity.

The Kim Jong Il point aside, the above passage is notable for its contrasts with axioms of FOIA in the UK: in the US, FOIA is motive blind, but no longer applicant blind.

Private email accounts

In the second of today’s US cases (thanks to the BBC’s Martin Rosenbaum for alerting me to this one), the San Antonio Express-News made a request under the Texas Public Information Act for emails concerned with public business sent to and from the private email account of the Bexar County Commissioner, Tommy Adkisson.

Rather like the UK’s Information Commissioner in his Department for Education decision, the Texas Attorney General took the view that these emails should be disclosed. A District Judge in Austin has dismissed Mr Adkisson’s case and upheld the Attorney General’s position (though an appeal seems likely). Time will tell whether the UK Tribunal takes a similar view of the Department for Education’s appeal concerning private email accounts.