EA/2023/0538 - [2024] UKFTT 001054 (GRC)

We first address some preliminary points before turning to the main issues in the appeal.

As set out in paragraph 33, section 31(1) refers to “information which is not exempt information by virtue of section 30”. There was no dispute between the parties regarding section 30 not being engaged in respect of the Request and accordingly we have not addressed that point.

The parties referred us to various authorities from case law relating to the application of the prejudice test, the application of the Public Interest Test and other relevant principles. However, there was no relevant dispute between the parties in respect of such matters. The material issues between the parties were related to whether or not, in respect of the Request, the Relevant Sections were engaged and (if they were) whether the Public Interest Test favoured maintaining the exemptions in them or favoured disclosure. This decision therefore focuses on those issues, rather than the underlying legal principles behind them.

In the Decision Notice and in the appeal, the Commissioner and the SFO did not differentiate between the subsections of the Relevant Sections but instead presented one set of arguments for the engagement of all of the Relevant Sections, as well as in respect of the application of the Public Interest Test. Apart from the differences between the parties which we noted in the preceding paragraph, there was no dispute regarding the presentation of the arguments in that way – namely without differentiating for any of the individual matters or interests specified in the subsections of the Relevant Sections.

The positions of both the SFO and the Commissioner were largely aligned, with the Commissioner having generally come to his conclusions in the Decision Notice for the same reasons as were provided by the SFO during the section 50 investigation - and which were also relied on by the SFO in respect of the appeal. Consequently, partly for convenience and partly because of the SFO’s representation in person at the hearing, the remainder of this decision generally refers only to the position or views of the SFO, but this should be taken as including reference to the Commissioner’s position or views to the extent applicable - and no disrespect to the Commissioner is intended by this approach.

We considered whether it was necessary for us to provide a closed decision. We concluded that it would not be necessary, on the basis that the reasoning behind this decision can be sufficiently understood without needing to refer to the specific details of the closed material.