Line to take - LTT135 - Confidentiality and information "obtained from" under s27(2)

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  • Section/Regulation: s27(2), reg 12(5)(a)
  • Issue: Confidentiality and information "obtained from" under s27(2)
  • Source: Information Tribunal
  • Details: CAAT / MOD (26 August 2008); Derry City Council / Belfast Telegraph (11 December 2006)
  • Related Lines to Take: LTT109
  • Related Documents: EA/2006/0040 (CAAT), EA/2006/0014 (Derry)
  • Contact: GF
  • Date: 10/11/2008
  • Policy Reference: LTT135
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

Information contained in a Memorandum of Understanding may, depending on its content, qualify as information obtained from another state for the purposes of 27(2). However, where it content and/or context demonstrate that the information is in fact jointly created, then 27(2) will not apply.

Further Information

In the recent case of Campaign Against the Arms Trade (CAAT) v the Information Commissioner and Ministry of Defence, where the appellant had requested certain Memoranda of Understanding (MoU) between the UK Government and the Kingdom of Saudi Arabia (KSA), the Tribunal commented on confidentiality under s27(2).

Information “obtained from”

The Tribunal found that information contained in the MoU in question in this case was information obtained from another state for the purposes of s27(2). Section 27(2) sets out that:

Information is also exempt in formation if it is confidential information obtained from a State other than the United Kingdom or from an international organisation or international court.

It might be expected that the information in such a memorandum of understanding would be the result of an agreement based on some kind of negotiation. At first sight therefore, this finding seems contradictory to the Tribunal’s approach in the case of Derry City Council v the Information Commissioner, which found that in relation to information obtained from a third party for the purposes of s41, that information was the product of a negotiated agreement that was jointly produced/created and therefore could not be deemed to be provided from a third party (see LTT109).

However, under s27, we would need to look at each ‘agreement’ (or MoU) on a case by case basis. Where it is clear from the content and/or context of the MoU that the information is obtained from a state, 27(2) applies; but 27(2) won’t apply if it is evident that the information is jointly created. It may be that in this particular case, the relationship between the UK government and the KSA, is such that the KSA were in a position to impose the terms of the MoU and that therefore it did represent information obtained from another state.

Therefore, generally, we should continue to follow the approach to ‘information obtained from’ resulting from the Derry case, even for 27(2), i.e. that where information is created jointly, the information would not be deemed as obtained from another party.

In cases where the information is not classed as obtained from another state and s27(2) is consequently not engaged, it is possible that the information will be exempt from disclosure under s27(1).