5 Essex Court


12 Feb 21 Back to Listing

Bobby Talalay represents the MPS in significant Upper Tribunal appeal, which defines the scope of s.23(5) FOIA 2000

Bobby appeared for the appellant Commissioner of Police (MPS) in the Upper Tribunal (Commissioner of Police of the Metropolis v (1) Information Commissioner & (2) Rosenbaum (GIA/2230/2019)). This was an appeal against a decision of the FTT that the MPS had to reveal whether or not it held information concerning investigations by Special Branch into the National Front on specific years, in response to a request by Mr Rosenbaum, a journalist with the BBC. The appeal was successful and the Upper Tribunal overturned the decision of the FTT that the MPS could not ‘neither confirm nor deny’ possession.

The case revolved around the ambit of the exception in s.23(5) FOIA, where there is no requirement to confirm or deny possession of information where doing so would involve the disclosure of information that ‘relates to’ a listed body dealing with national security matters. The case is highly significant in the area of information law for three reasons. 

First, Judge Markus expressly held that the case law had gone off track in Corderoy v Information Commissioner [2017] UKUT 495 (AAC) in permitting a departure from the statutory language in s.23(5) by asking whether Parliament intended for another exemption to apply instead of s.23. The Judge found that such a requirement placed an unlawful gloss on the statutory wording.

Second, the judge affirmed the distinction between official confirmation in the public domain as against information that might be widely known but has not been officially confirmed. In most cases, the former would be required for there to be no ‘disclosure’ within the meaning of s.23(5) FOIA.  

Third, the Judge affirmed a useful list of 14 principles, taken from the authorities, to be applied to s.23(5) cases in the future, providing certainty and clarity.

A copy of the Judgment can be found online here, with detailed analysis on the Panopticon information law blog here.

Bobby Talalay was instructed on behalf of the Commissioner of Police of the Metropolis