We bring together information on the legal frameworks for the right to information from more than 100 countries.
You are here: Home Cases Gilby v. Information Commissioner and the Foreign and Commonwealth Office

Gilby v. Information Commissioner and the Foreign and Commonwealth Office

Case number:
EA/2007/0071, EA/2007/007, EA/2007/0079
Country:
United Kingdom
Date of decision:
22 October 2008
Court / Arbiter:
Information Tribunal, reviewable by High Court ( First instance )


Decision:

Disclosure of information relating to arms trade between the United Kingdom and Saudi Arabia could cause real and substantial prejudice to UK international relations, the harm of which outweighs any public interest in favour of disclosure. However, information relating specifically to the role of UK government officials in accepting bribes is subject to disclosure.


Keywords:
Archives
Contracts / Agreements (use of public funds, negotiations)
Harm (including harm to legitimate interest, harm test)
International relations / Foreign affairs
Public interest (including public interest override, information of public interest)
RTI law

Case details:

Facts

This case joined appeals pertaining to three separate requests made to The National Archives (TNA) by Nicholas Gilby for: 1) a file concerning the export of tanks for the Saudi Arabian National Guard in 1968-69 (Request A); 2)  files concerning the possible sale of arms to Saudi Arabian National Guard and the provision of maintenance services to the Royal Saudi Air Force (Request B); and 3)  files relating to possible sale of tanks to Saudi Arabia (Request C) (Paras. 1-4).

The TNA refused Request A on the grounds that disclosure would cause “harm to bilateral relationships” with foreign states and “damage to UK commercial interests in the region,” such that the request fell within the international relations exception under Section 27 of the Freedom of Information Act (FOI Act) (Para. 5). The TNA refused Request B on substantially similar grounds (Para. 8). With respect to Request C, the TNA acknowledged the “general public interest in transparency and accountability” but argued that such interests were outweighed by “the public interest in the maintenance of positive diplomatic relationships with other governments” (Para. 11).

Decision

This case presented before the Tribunal two main issues. First, the Tribunal considered whether the requested information fell under Section 27(1) of the FOI Act, in that it might prejudice UK international relations if disclosed, and Section 27(2) and (3) of the FOI Act, in that it constituted confidential information obtained from a foreign nation (para 20). Second, even if information fell under any part of Section 27, the Tribunal considered whether disclosure might nonetheless be necessary if public interest in favour of disclosure was sufficiently strong (para. 20).

The Tribunal explained that for the purposes of Section 27(1) of the FOI Act, prejudice “can be real and of substance if it makes relations more difficult or calls for particular diplomatic response to contain or limit damage which would not otherwise have been necessary”—prejudice need not “require[] demonstration of actual harm to the relevant interests in terms of quantifiable loss or damage” (para 23). Given that the Saudi governing power is “generally an autocratic and secretive regime,” the Tribunal accepted that disclosure of certain information regarding arms trade could “result in a very serious reaction of the [Saudi government that] would be likely to harm [UK’s] relations” with them (para 27).

The Tribunal then turned to consider whether there was sufficient public interest in favour of disclosure under Sections 27(1), (2) and (3). While the Tribunal acknowledged “the particular importance of transparency in the fight against corruption and related malpractice,” those interests were outweighed by the “public interest in maintaining [UK] relations with Saudi Arabia,” particularly given that the requested information implicated trade and economic matters (para. 51).

However, the Tribunal ordered disclosure of information specifically relating to “the possible involvement of UK officials directly or indirectly in the payment of commissions or agency fees in connection with arms sales” (para. 56). Neither foreign relations concerns nor confidentiality concerns under Section 27 applied to such information, and public interest in favour of disclosure—namely, government transparency—was considerable (para 57).

Resources:

Judgment of the Court.