The second day of our Information Tribunal focused on the legal submissions by ourselves represented by Sam Jacobs, the Ministry of Defence represented by Charles Bourne, and the Information Commissioner represented by Robin Hopkins. This is just a brief update – we will obviously say more when the Tribunal’s decision is released – hopefully within two weeks.
The Information Commission had previously upheld the MoD’s refusal to disclose the information that we requested under the Section 26 exception of the Freedom of Information Act (‘prejudice to the capability, effectiveness or security of the armed forces’) and Section 27 (‘prejudice to relations with another State’). In this Tribunal we are seeking to overturn this decision however part of the hearing is being held behind closed doors and we or our counsel are not allowed to participate.
During the submissions our counsel argued that the information that we are seeking does not in fact prejudice the armed forces. The MoD insists that it does but will not say in the open part of the Tribunal how it does except to say that it could form part of a ‘mosaic’ which enemy forces could possibly use to change their tactics.
We argue that, with regard to our request to know the location of UK drone strikes within Afghanistan for example, there were 111 weapons released from British UAVs in 2011 out of a total of 5,409 weapons released from aircraft in Afghanistan that year. We believe that it is not possible for enemy forces to gain any information from knowing that approximately 2% were launched by British drones. In addition some information about the location of UK drone strikes had already been released by the MoD in their weekly updates so it was hard to understand why such information was now seen as capable of being prejudicial.
In addition we believe that there is huge public interest, as we have made clear many times, in knowing more information about the day-to-day use of armed drones as there are significant legal and ethical issues involved.
The Ministry of Defence argued that their expert opinion in this matter should be accepted by the Tribunal and that there should significant “cogent reasons” of “considerable weight” before the Tribunal should decide against the MoD’s expert opinion. The MoD also argued that the information we sought was not significant in relation to public interest and would not significantly inform the public. The MoD also made the point that because there was some interest by the public in the matter, it did not follow there was ‘public interest’ in the matter.
With regard to the information prejudicing relations with the US (section 27), it was revealed during the hearing that although the MoD witness had stated on the witness stand that they had sought the opinion of the US on releasing the information in a neutral way without revealing the UK’s position, after a closed session the Tribunal released to us some of the wording from an email between the UK and the US on the matter. In states in part:
“PJHQ has asked me to find a suitable American representative who would be able to give us their, the US, views about the UK releasing the information Mr Cole has requested. The UK is not looking to release the information and is trying to strengthen our arguments for non-disclosure”
Hardly neutral then. Given this revelation we argued that the evidence showing that relations between the UK and the US would be prejudiced should be given no weight.
Mr Hopkins, Counsel for the Commissioner argued that the position they had taken in the original appeal was correct. Mr Hopkins disagreed with the MoD with regard to the significance of the public interest in the information we seek, saying it was very significant indeed. However Mr Hopkins agreed with the MoD’s position that they were the experts in relation to whether prejudice could occur and therefore in his opinion the information should not be released.
The Tribunal thanked all parties and promised to do it best to release a decision within two weeks.