“35. The asserted need for confidentiality relates only to the names of the witnesses and their businesses and the nature of those businesses, from which the names might be deduced. The effect of their evidence was straightforward and can be shortly summarised in the publicly available decision. 36. Both had direct experience of lawfully exporting to Iran over a substantial period…Both had experienced critical problems in the withdrawal of banking facilities by major UK banks because of their trade with Iran. The bank’s letter withdrawing facilities was exhibited to the statement of one of the witnesses. Both suffered repeated rebuffs from other banks, which they approached to provide facilities. One ultimately overcame the problem by “disguising” the source of payment through routing via a foreign bank. The “disguise”, apparently, was required by the bank that eventually provided facilities so that there was no evidence that it knew that funds came from Iran – surely a deplorable state of affairs. Similar problems were confronted when attempts were made to transfer funds, lawfully held in Iraq, to a UK account. European banks refused to act. Eventually a bank within the EU agreed to make transfers but at a very high rate of commission. 37. Both witness stated that these problems had done immense damage to their businesses, indeed that they had faced closure. Both spoke of competitors facing these difficulties. 38. Their evidence confirmed that the risk of withdrawal or refusal of banking services extended to European and, plainly, to US institutions. 39. It was made clear to them that this aversion to Iranian transactions was the result of the perceived risk of withdrawal of the US correspondent banking licences without which a bank cannot trade in US dollars. Major European banks have, of course, a considerable presence in the USA for more general business purposes. 40. Evidence was also given of the potential loss of business from US companies, if this trade were publicised. On the other hand, major suppliers refused to do any business with a company trading with Iran, even for the purposes of exporting to a quite distinct end user. 41. More generally, both companies feared scrutiny by the US authorities and their inclusion on a black list which cut off all trade contacts with the USA and perhaps more widely. We were referred to the websites of the Office of Foreign Assets Control…, an organ of the US Treasury, which enforces economic sanctions worldwide and blacklists companies and individuals with which US entities are prohibited from trading. 42. All these measures are liable to be taken against companies engaging in trade which is perfectly lawful according to EU law and the domestic law of the country in which they are registered and controlled. 43. One of the witnesses emphasised his expectation of confidentiality in making a licence application, having regard to the consequences of disclosure which he described.”
“60…we were strongly impressed by the strength of the evidence on detriment which we heard in the closed session and which we tested with some care. We readily accept that these witnesses – and doubtless others – were treated by large banks in the manner which they describe and suffered the other trading difficulties summarised above. On the evidence adduced before us we are satisfied that a climate of fear as to US Treasury reaction frequently inhibits not just US institutions but many European ones from dealing with those who trade quite lawfully with Iran. 61. Taken as a whole, we found the evidence as to detriment resulting from disclosure entirely compelling. ”
“69. We bear well in mind that information must be disclosed if the balance of public interests is inconclusive. Given the doubt as to whether the information now sought would achieve what is claimed, the very high likelihood of real harm to a large number of companies resulting from disclosure of their identities and the ancillary point as to deterrence from candour in the licensing process, we conclude that the public interest firmly favours the withholding of this information.”
“60…in our view, to characterise the First-tier Tribunal’s function, within the statutory scheme established by FOIA, as or equating to ordinary civil and therefore adversarial litigation because it is deciding a dispute between the parties before it, or deciding whether to vindicate a right claimed by the applicant, is an inadequate and inaccurate description; rather, its function is investigatory and is to see if FOIA is properly applied to the circumstances. This involves consideration, in the manner provided by FOIA, of the right which is given by section 1 (1) in pursuance of the interests that were served by the release of information, together with the assessment of countervailing public and private interest in accordance with the terms of the exemptions.”
“78. The points made…all point to the conclusion that it will only be in exceptional and so rare cases that it would be appropriate to exercise a discretion in favour of directing disclosure of closed material to a representative of a person who is not to be provided with it.”
“…we have concluded that a First-tier Tribunal should not direct that a representative of an excluded party should see closed material or attend a closed hearing unless it has concluded that, if it does not do so: it cannot carry out its investigatory function of considering and testing the closed material and give appropriate reasons for its decision on a sufficiently informed basis and so fairly and effectively in the given case having regard to the competing rights and interest involved.”
“In respect of any information which is exempt information by virtue of any provision of Part II, section 1 (1) (b) does not apply if or to the extent that – (a) the information is exempt information by virtue of a provision conferring absolute exemption, or (b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”
“Information is exempt information if – (a) it was obtained by a public authority from any other person (including another public authority), and (b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.” (a) it was obtained by a public authority from any other person (including another public authority), and (b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.”
“Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).”
“(g) The Commissioner, though a party to the appeal, does not have the specific objective of trying either to procure or to prevent the release of the particular information. His concern, like the Tribunal’s, is to see that the Act is properly applied and to take proper account of the relevant private and public rights and interests. He argues for disclosure or non-disclosure according to his view of the application of the Act to the particular circumstances. Because his commitment is to the Act rather than to a pre-selected result, it is not unusual for his arguments to alter during the course of the hearing as evidence unfolds… (h) In appeals which involve consideration of the requested information in closed session, the role of the Commissioner’s counsel is of particular importance. Counsel is able to assist the Tribunal in testing the evidence and arguments put forward by the public authority. (i) However, irrespective of the assistance of the Commissioner, the Tribunal, as a specialist tribunal, can be expected to be able, at least in some cases, to assess for itself the application of the provisions of FOIA to the closed material…the extent to which the tribunal will be in a position to do this will depend upon the particular circumstances. (j) Until the Tribunal has decided whether the information is to be disclosed under FOIA section 1, it must proceed on the basis that it may decide against such disclosure. The Tribunal must therefore be careful not to do anything which might prejudice that outcome. (k) Disclosure to the appellant’s counsel on restricted terms would not itself amount to disclosure to the public under FOIA section 1. But it would be attended by risks of prejudicing the outcome. There could be a slip of the tongue. Information could be given away by facial expression or body language, or by the way questions were asked or answered or submissions made, or by inference from advice given. A change in the approach of counsel after seeing the material could make apparent the content of the information, or some of it. Such risks are relevant to the exercise of discretion under the Tribunal’s procedural powers. (l) Further risks may arise, beyond the individual appeal, because there are many individuals and organisations who are regular users of the right to freedom of information in pursuance of a particular interest. BUAV is one example out of many. If it became a regular practice to disclose requested information to counsel for the appellant, such counsel would over time build up a bank of knowledge concerning the topic of interest, derived from information which the public has no right to see. This could affect the person’s or organisation’s strategy in the use of the Act. I have observed above that, unlike a special advocate, an ordinary legal representative, authorised to see the closed material on confidential terms, would continue to communicate with the appellant after seeing it, and would take into account the confidential information when advising the appellant and taking decisions on the conduct of the case. By making the information available to counsel, in cases where there is no right to it, the appellant would over time derive illegitimate benefits. (m) Difficulties would also arise in relation to how appellants should be treated, who are not legally represented. An appellant may be wholly trustworthy and may offer an undertaking not to disclose the information unless the Tribunal so orders. If the information can be made available to counsel, why not to a trustworthy appellant? Yet to give it to the appellant before the Tribunal has decided whether it is disclosable, would be to override the Act and undermine the Tribunal’s function. Giving it to a lawyer acting as the appellant’s representative is not far different from giving it to the appellant in person.”
“These considerations lead me to the conclusion that the type of order now sought should not be made, save in exceptional cases where, as a minimum, the Tribunal take the view that it cannot carry out its functions effectively without the assistance of the appellant’s legal representative in relation to the closed material. Whether there will be any such cases remains to be seen. The approach must depend upon the particular circumstances. In some cases the Tribunal will be able to deal with the matter without external assistance. In many cases all necessary assistance will be provided by counsel for the Commissioner. In a few cases it may be necessary to appoint a special advocate, despite the extra expense likely to be occasioned.”
“(4) (a).…justice is done, (b).… the tribunal system is accessible and fair.”
“(1) Subject to the following paragraphs, all hearings must be held in public. (2) The Tribunal may give a direction that a hearing, or part of it, is to be held in private. (3) Where a hearing, or part of it, is to be held in private, the Tribunal may determine who is permitted to attend the hearing or part of it. (4) The tribunal may give a direction excluding from any hearing, or part of it – (c) any person who the Tribunal considers should be excluded in order to give effect to the requirement at rule 14 (10) (prevention of disclosure or publication of documents, and information); or (d) any person where the purpose of the hearing would be defeated by the attendance of that person.”
“(1) The Tribunal may make an order prohibiting the disclosure or publication of – (a) specified documents or information relating to the proceedings; or (b) any matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified. (2) The tribunal may give a direction prohibiting the disclosure of a document or information to a person if – (a) The Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and (b) The Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction. … (4) If the Tribunal gives a direction under paragraph (2) which prevents disclosure to a party who has appointed a representative, the Tribunal may give a direction that the documents or information be disclosed to that representative if the Tribunal is satisfied that – (a) Disclosure to the representative would be in the interests of the party; and (b) The representative will act in accordance with paragraph (5) (5) Documents or information disclosed to a representative in accordance with a direction under paragraph (4) must not ne disclosed either directly or indirectly to any other person without the Tribunal’s consent. (6) The Tribunal may give a direction that certain documents or information must or may be disclosed to the Tribunal on the basis that the Tribunal will not disclose such documents or information to other persons, or specified other persons. … (10) The Tribunal must conduct proceedings and record its decision and reasons approximately so as not to undermine the effect of an order made under paragraph (1), a direction given under paragraph (2) or (6)…”
“2. The idea of a court hearing evidence or argument in private is contrary to the principle of open justice, which is fundamental to the dispensation of justice in a modern, democratic society. However, it has long been accepted that, in rare cases, a court has inherent power to receive evidence and argument in a hearing from which the public and the press are excluded, and that it can even give a judgment which is only available to the parties. Such a course may only be taken (i) if it is strictly necessary to have a private hearing in order to achieve justice between the parties, and, (ii) if the degree of privacy is kept to an absolute minimum… 3. Even more fundamental to any justice system in a modern, democratic society is the principle of natural justice, whose most important aspect is that every party has a right to know the full case against him, and the right to test and challenge that case fully. A closed hearing is therefore more offensive to fundamental principle than a private hearing. At least a private hearing cannot be said, of itself, to give rise to inequality or even unfairness as between the parties. But that cannot be said of an arrangement where the Court can look at evidence or hear argument on behalf of one party without the other party ...knowing, or being able to test, the contents of that evidence and those arguments,… or even being able to see all the reasons why the Court reached its conclusions.”
“Although devised with the best of intentions, this procedure was, in my view, wrong in principle. As a result, it not only gave rise to very real practical difficulties but led the Court to adopt a mistaken approach to the inspection of the documents by the Lord Ordinary. …counsel for the petitioners was left in a very difficult situation where, as a result of reading the documents, he had information that he was not able to reveal to, or discuss with, his clients or instructing solicitors. He even felt inhibited from revealing it to the Lord Ordinary. The result was a certain paralysis in the procedure. In agreement with all of Your Lordships, I am satisfied that no such procedure should be followed in the future.”
“It puts counsel in an invidious and unsustainable position in relation to his or her client…as in this case, such a procedure may also put counsel into a position where he or she is uncertain what it is permissible to disclose or say when making submissions to the Court about public interest immunity.”
“[Section 41 (1) (a)] will cover recorded information that a public authority has obtained from another person. This will cover recorded information that a public authority has obtained from another person and which finds its way – without any material modification to its content – into a document created by the public authority (i.e. where the public authority merely copies recorded information into another document). It will also cover the situation where the requested public authority puts into a different format confidential information which it has obtained from another person. But section 41 does not exempt a document or record which the public authority has itself created by processing information which it has obtained from another person. In this situation, the document or other record prepared by the public authority (i.e. the recorded information) will not have been obtained from another person.”
Showing the 50 most senior of 55.