EA-2023-0405 - [2024] UKFTT 00700 (GRC)

It is submitted that the ‘international relations exemption’ is not engaged on the basis that the three-stage test in Hogan requires the applicable interest(s) within the relevant exemption to be identified; a causal relationship to be shown between the potential disclosure and the prejudice that is ‘real, actual or of substance’ (the evidential burden of which rests with the decision-maker); and a likelihood of prejudice to be shown (a step which also lies with the decision-maker). It is not understood how disclosure of communications in relation to “arranging travel abroad” can give rise to prejudice to international relations that is ‘real, actual or of substance’.

The Independent considered the application of the international relations exemption to be insufficient because it attaches any purported prejudice to a category of ‘communication’ without explaining how that prejudice is likely to be caused by the disclosure of the content of that communication, which it is understood to have related to “arranging travel abroad”.

The Independent argued that the IC wrongly took into account the likelihood of harm to states other than the US in its decision.

Even if the international relations exemption is engaged, it was submitted that any such engagement is weak (for the reasons given above) and overwhelmingly outweighed by the public interest in disclosure of the information requested.

It was argued that the fact that Mr Sunak, a UK MP holding various high-level ministerial positions of public responsibility, held a green card entitling him to certain statutory rights in the US and filed annual tax returns with the US government – and the fact that that green card was only forfeited by Mr Sunak in October 2021 (nineteen months after having been appointed Chancellor of the Exchequer) – render the decision-making around Mr Sunak’s green card to be a significant matter of public interest.

The Independent does not accept that it is in the public interest not to disclose information on the basis that such disclosure would have a chilling effect. On the contrary, the Independent submitted there is a public interest in ministerial and public officials being aware of their obligations under FOIA, and the spirit of transparency, and to conduct their public roles and official correspondence accordingly.