Ministry of Defence v Information Commissioner and Evans [2007] UKIT EA_2006

Appeal Number: EA/2006/0027

The Tribunal dismisses the Appeal of the Appellant but substitutes the
Decision Notice issued by the Commissioner in that the said Decision Notice
shall require that the Ministry of Defence within 30 days of the date of
promulgation of the Tribunal’s decision to provide the Additional Party with the
information requested on 13 January 2005 subject to the following information
being redacted, namely:

(1) The names of members of staff belonging to Grades below B2 level;
and

(2) The telephone numbers and the email addresses for all staff unless the
same be already set out in the appropriate Civil Service Year Book or
other similar and generally available publication.

Reasons for Decision

Introduction

1. This Appeal concerns the operation of a number of exemptions relied
on by the Appellant, namely the Ministry of Defence (MoD) in relation
to the disclosure sought by the Additional Party, Mr Evans. Mr Evans
seeks disclosure of a complete copy of the 2004 edition of a Directory
(the Directory) published by the Defence Export Services Organisation
(DESO). Mr Evans is a journalist who writes for The Guardian.

2. DESO, although forming part of the MoD as a so-called Central Unit, is
a discrete organisation involved in assisting UK based companies
concerned in some way with the arms trade in obtaining contracts for
the export of defence goods and services. The Directory sets out the
structure of DESO and lists the first names and surnames, job titles,
work addresses, telephone numbers and email addresses of DESO’s
staff. The MoD has provided a redacted copy of the Directory.
However, it relies upon the following provisions of the Freedom of
Information Act 2000 (FOIA 2000) with varying degrees of emphasis,
namely sections 24, 36, 38 and 40.

3. Section 24 deals with national security. It is a so-called prejudiced-
based exemption which provides as follows, namely:

“24.(1) Information which does not fall within section 23(1) is exempt
information if exemption from section 1(1)(b) is required for the purpose
of safeguarding national security.

(2) The duty to confirm or deny does not arise if, or to the extent
that, exemption from section 1(1)(a) is required for the purpose of
safeguarding national security.

(3) A certificate signed by a Minister of the Crown certifying that
exemption from section 1(1)(b), or from section 1(1)(a) and (b), is or at

Appeal Number: EA/2006/0027

any time was, required for the purpose of safeguarding national
security shall, subject to section 60, be conclusive evidence of that fact.

(4) A certificate under subsection (3) may identify the information
to which it applies by means of a general description and may be
expressed to have prospective effect.”

4. Section 1(1)(b) expresses one of the guiding principles of FOIA,
namely that a person makes the request for information from a public
authority and is entitled to have that information communicated to him.
Section 60 entitles the Information Commissioner (the Commissioner)
or an Applicant making a request for information to appeal to the
Tribunal against the making of the certificate. Section 60, however, is
not relevant to this Appeal.

5. Section 36 of FOIA deals with what is described in the Head Note as
“Prejudice to effective conduct of public affairs”. This also is a
prejudiced-based exemption. By section 36(2), it is provided in
relevant part that:

“(2) Information to which this section applies is exempt information if,
in the reasonable opinion of a qualified person, disclosure of the
information under this Act –

6. Section 38, again, is a prejudiced-based exemption. It provides that:

“(1) Information is exempt information if its disclosure under this Act
would, or would be likely to –

(a) endanger the physical or mental health of any individual, or

(b) endanger the safety of any individual.”

7. Finally, section 40 which deals with personal information provides in
relevant part that:

“(1) Any information to which a request for information relates is
exempt information if it constitutes personal data of which the
applicant is the data subject.

(2) Any information to which a request for information relates is also
exempt information if –

(a) it constitutes personal data which do not fall within
subsection (1), and

(b) either the first or second condition below is satisfied.

Appeal Number: EA/2006/0027

(3) The first condition is –

(a) in a case where the information falls within any of the paragraphs
(a) to (d) of the definition of “data” in section 1(1) of the Data
Protection Act 1998, that the disclosure of the information to a
member of the public otherwise than under this Act would
contravene –

(i) any of the data protection principles… “

Chronology

8. The request was made by Mr Evans by letter dated 11 January 2005.
Mr Evans wrote on Guardian-headed notepaper. Under cover of a
letter dated 10 February 2005, DESO supplied a redacted copy of the
Directory having removed names of staff and related contact details,
but leaving in the titles of the posts held. Organisational information
including posts’ titles was provided, but staff names and contact details
were redacted as indicated, together with the locations of staff based in
Saudi Arabia. No redaction was made as to the name of the Head of
DESO. Reliance was placed on section 40 of FOIA as well as sections
44 and 38. Section 44 deals with exempt information being not
disclosed if disclosure is otherwise prohibited by or under any
enactment. No further reliance has been placed for present purposes
on section 44. Reliance was placed on section 40 on the basis that the
individuals whose names otherwise appeared in the Directory expected
their data to be disseminated only “for use by DESO, for the wider MoD
Department and security cleared members of the UK Defence
Industry.”

9. Mr Evans then asked for an internal review. The result of that review
was reported to him by letter dated 5 May 2005 and signed by David
Wray as “Director of Information (Exploitation), Ministry of Defence.”
Mr Wray gave evidence before the Tribunal and further reference will
be made to that below. The following principal points were made in his
letter, namely:

(1) the earlier redaction of the general locations of those serving with
UK MoD teams in Saudi Arabia which should have appeared on
page 25 of the Directory was confirmed;

(2) the main switchboard number of DESO previously redacted was
released, being a switchboard number at its principal London
premises at Castlewood House;

(3) the ranks of all military personnel listed in the Directory should not
be redacted as had previously been done; and

(4) reliance was placed on section 21 of FOIA which exempted
information if otherwise reasonably accessible by other means,
but only insofar as the names and contact details of DESO staff

Appeal Number: EA/2006/0027

whose names appeared in other publications including the Civil
Service Year Book and Vachers; Mr Wray maintained that the
distribution of the Directory as a whole was not generally
accessible since its distribution outside Government was said to
be limited to the “business community which has a legitimate
need for the information”;

(5) the balance of the respective public interests inbuilt into section
36 militated in favour of not disclosing phone numbers since the
public could contact DESO either directly by its own switchboard
number or via a Public Enquiry Unit (PEU);

(6) in addition and in connection with (5), it was alleged that official
business would be hindered if random calls were made to officials
by members of the public and in particular by any anti-arms sale
protestors, as well as if there were any deliberate attempt or
attempts to disrupt business, e.g. by spam e-mail attacks;

(7) moreover, the Parliamentary Under Secretary of State for
Defence had formed the view as a qualified person for the
purpose of section 36(2)(c) that prejudice would be caused to the
effective conduct of public affairs; and

(8) there was in particular a real danger to the health and safety of
DESO staff in Saudi Arabia.

10. By the date of the internal review, the Commissioner’s Office had been
approached. By his letter of 30 April 2005, the Commissioner
addressed in particular section 36(2)(c), i.e. dealing with prejudice to
the effective conduct of public affairs, as well as section 38(1) which
dealt with the endangering of health and safety. The Commissioner
posed the question whether it would be possible to release staff names
without the appropriate contact details such as e-mail addresses. He
also asked for evidence to justify the likelihood of the occurrence of
alleged disruption, e.g. spam e-mail attacks. As to section 38(1), and
in particular section 38(1)(b), the Commissioner was inclined to accept
that in relation to the operations of DESO in Saudi Arabia, both the
names of the relevant staff as well as their whereabouts should be
withheld.

11. In further exchanges with the Commissioner, Mr Wray in effect
maintained the MoD’s earlier position. Mr Evans, meanwhile, in his e-
mails to the Commissioner, relied on the fact that military personnel
whose names appeared in the 2004 Directory would have their names
and details appearing in the appropriate military list or lists, whether it
be Army, Navy or Air Force. The Commissioner continued to ask the
MoD for evidence as to the “risk of direct endangerment” to DESO
staff, in particular with regard to Saudi Arabia, as well as other
questions including those raised by Mr Evans. Mr Wray wrote a
lengthy response dated 16 January 2006 dealing with the above and
other related issues. Without intending any discourtesy to the careful

Appeal Number: EA/2006/0027

manner in which these exchanges were framed, the Tribunal finds that
the points that Mr Wray raised were all revisited during the appeal, and
in those circumstances were referred to in connection with the
arguments raised during the Appeal.

The Decision Notice

12. The Commissioner’s Decision Notice is dated 19 April 2006. With
regard to section 21, the Commissioner accepted that some
information was exempt. However, since the Commissioner was
minded to order disclosure of the remaining information, he noted that
the MoD no longer needed to rely on this exemption. The Tribunal has
not been asked to consider on this Appeal the applicability of the
exemption in section 21.

13. With regard to section 36, the Commissioner provided five grounds
which favour disclosure, namely:

(1) the need for transparency, at least as much transparency as
possible, between defence companies and the MoD especially on
the grounds that such companies could receive substantial sums
of public expenditure as contractors; the Commissioner added
that disclosure of the Directory would guard against the risks of
“inappropriate closeness between such companies and the MoD,
which in extreme cases could lead to improper conduct or even to
allegations of bribery and corruption”; he also added that the
movement of officials from the MoD to jobs within the arms
industry, or vice-versa, could also lead to Government arms
export policy and wider military or foreign policy being “unduly
skewed in favour of arms companies”; in short, disclosure of the
information would “make movement of people more visible and
help to ensure there is no improper conduct by officials.”;

(2) a better understanding of the MoD;

(3) accountability and transparency of public officials generally;

(4) improvement of public confidence in the integrity of DESO
officials; and

(5) the making of DESO staff more “accessible to the public, allowing
them to contact the relevant officials about matters that concern
them.”

14. The Commissioner noted the MoD’s response in the following terms,
namely:

(1) public interest and transparency were already satisfied by release
of the redacted copy, together with accessibility to website
information and a telephone enquiry service, in turn allowing
members of the public to contact a central point in DESO;

Appeal Number: EA/2006/0027

(2) public interest in openness was satisfied by the publication of
names and contact details of senior staff in “the public-facing
roles” together with the publication of a more extensive list of
contact details in the Civil Service Year Book;

(3) the existence of stringent rules governing the conduct and
behaviour of staff whose roles brought them into contact with the
commercial world;

(4) that the fact that public interest militated in favour of ensuring that
the work of DESO could be conducted effectively without
“unwarranted disruption or delay”; and

(5) publishing names and contact details to any greater degree than
already occurred would not be in the public interest.

15. The Commissioner then stated at page 7 of his Decision Notice:

“The Commissioner accepts there is a risk that disclosure of contact
details could cause some disruption to DESO staff and therefore he is
satisfied that s.36 applies. However he considers the public interest
arguments supporting the disclosure of the information are more
persuasive than those articulated for withholding the information. The
Directory is distributed widely within the arms industry including
manufacturing, service and consultancy businesses. It is not
protectively marked, e.g. as “classified”. This suggests that the MoD
has not assessed the content of the DESO Directory as warranting
special protection. There is a strong public interest in improving the
public’s understanding of the relationship between the arms industry
and the MoD. The Commissioner also considers that public authority
employees should have an expectation that they will be publicly
accountable and be identified in relation to their duties, depending on
their seniority and the nature of their role. (The directory, by its very
nature, contains contact details of staff in public-facing roles). He
believes disclosure of the full DESO directory will deliver this
accountability and will therefore be in the public interest.”

The Tribunal should point out that the above quotation reflected the
Commissioner’s then understanding of matters and is subject to the
information which was later provided by the MoD both before and
during this Appeal.

16. With regard to section 38, the Commissioner stated that he was “not
persuaded that there is sufficient evidence to suggest that in this case
the disclosure of names or contact details of DESO employees would
or would be likely to endanger the physical or mental health of any
individual.” Consequently, he considered that the MoD had not been
able to persuade him that “a significant risk of endangerment” occurred
with the result that section 38 was not engaged: it followed that he did
not examine any of the relevant competing public interests.

Appeal Number: EA/2006/0027

17. Finally, with regard to section 40 and given the MoD’s view that it
rested its case “primarily” on section 36, the Commissioner expressed
the view that it was “doubtful” that disclosure of the Directory would
contravene any of the “data protection principles”. The Commissioner
therefore directed that the MoD produce the information requested.

18. The MoD appealed by notice dated 23 May 2006. The grounds of
appeal were extensively developed by Mr Crow QC acting on behalf of
the MoD during the course of the Appeal and reference will be made in
further detail below to those grounds.

The Directory

19. The Directory sought in Mr Evans’ request was the 2004 edition. In
January 2005 a further edition was produced. Mr Evans was supplied
with a redacted copy of that edition along with a redacted version of the
2004 edition. The MoD confirmed by the Treasury Solicitor’s Office to
the Tribunal that a Directory has not yet been provided in 2006 or 2007
pending the result of this present Appeal. The Tribunal was provided
with an unredacted copy of the 2004 edition.

20. During the cross-examination of Mr Wray as one of the MoD’s three
witnesses, it was confirmed that some names other than those
occupying Senior Civil Service grades were published in the Civil
Service Year Book.

21. The contents of the Directory reflect the internal organisation of DESO.
This was explained principally in the form of written evidence that was
also amplified by the other witness from the MoD who appeared before
the Tribunal, Mr John Millen, the present Director of Export Services
Policy in DESO. The senior management of DESO comprises a Head
of Defence Export Services (HDES), a Director General Defence
Export Services and a Senior Military Advisor. DESO staff operate
worldwide, principally through a structure of regional directorates
reporting directly to the HDES. At the time of the 2004 Directory, there
were four regional directorates, there now being three.

22. DESO’s other directorates comprise the business development
directorate, the Directorate of Export Services Policy (responsible for
political and parliamentary issues, expert licensing and policy advice)
the communications directorate and military advisors and specialists.
As of April 2004, there were 506 DESO staff of whom 109 served
abroad. The Directory includes all grades, even junior “back-office”
staff.

23. Mr Millen confirmed that in 2004, about 2000 copies of the Directory
were sent to “named individuals at external addresses, including other
Government departments”. The mailing list had been built up over
many years and reflected predominantly contacts within and around
the defence industries. DESO attended a number of trade fairs
throughout the year and copies were provided to those parties and

Appeal Number: EA/2006/0027

persons which provided services to DESO, an occurrence which took
place regularly. Other recipients included other Government
departments, two Foreign Embassies and one High Commission in
London. In the words of Mr Millen’s own statement:

“A copy was provided if the request came from a member of the UK
Defence Industry or if the requester concerned had an accepted reason
for doing business with DESO.”

24. Not surprisingly, the Directory was issued to all DESO staff.

25. In 2005, a revised version of the Directory was published and more
recipients than had been the case in 2004 were supplied with copies,
including three “specialist journalists” and employees of Newsdesk
Communications Limited which is an entity dealing with the defence
industry. For a while it seems, a copy was available on what was
called the “partners’ site” of the DESO internet (an area of that site
accessible by password). During the period in question, DESO
discovered that the Society of British Aerospace Companies had
placed a copy of the Directory on their own website and it was
immediately removed on request.

26. In consequence and in relation to the 2005 editions (there apparently
being 2 or 3 in that year, although only 1 in the format of the 2004
Directory) DESO printed a reminder on the cover that the Directory was
for Government and industry use only. As at the date of the hearing,
plans for a 2007 edition were in abeyance as indicated above.

27. The effective questions before the Tribunal were therefore:

(1) whether all the names given in the 2004 Directory or whether no
further names, or only the names of employees in a certain
category or class should be released and if the latter, the proper
extent of such category or class; and/or

(2) whether direct dial telephone numbers should be released;
and/or

(3) whether email details should be released.
The evidence: Mr Wray

28. The Tribunal heard from Mr Wray. He was the person responsible for
supervising the MoD internal review and as indicated above, signed the
letter setting out the reasons underlying the findings of the review to Mr
Evans. In his written statement, he referred to a number of matters
which he regarded as relevant to the MoD’s appeal. First, he stated
and indeed stressed that in accordance with the so-called Osmotherley
rules, civil servants were accountable to Ministers and not directly to
Parliament. This formed one of the principal grounds of appeal by the
MoD on this Appeal. He therefore maintained that to ask civil servants

Appeal Number: EA/2006/0027

to be “otherwise accountable would undermine their political impartiality
and their ability to service all Governments with equal loyalty”. He
therefore contended that disclosing the identities of civil servants in the
way requested would mean that in the future, civil servants would be
reluctant to work on controversial or sensitive policies for fear of being
identified publicly, and in his written evidence he gave some examples
of civil servants being harassed, usually by phone, or their identities
being revealed.

29. Secondly, he added that DESO staff had to adhere to the rules on
Business Appointments to which all civil servants were subject, i.e. The
Rules on the Acceptance of Outside Appointments by Crown Servants
(The Business Appointment Rules) last issued in April 2006. These
Rules are designed to ensure that proper procedures are followed with
an appropriate degree of publicity whenever members of DESO leave
DESO to work for outside and connected entities.

30. Thirdly, he explained that the general public and the Press could
already contact DESO by means of an external website and by
telephoning the MoD through its main switchboard, as well as in
writing. In addition, at the time of the Commissioner’s decision, the
MoD had a Public Enquiry Office which has since been disbanded.

31. Fourthly, he dealt with the suggestion that there would be undue
prejudice if the withheld information were disclosed, given the fact that
much of the information was already publicly available. He explained
that certain members of the DESO staff had their names in various
other listings or directories, e.g. members of the Armed Services who
served in DESO so that it could be said that some senior DESO
employees were in the public domain to that extent, but he added “it by
no means follows that all are or should be” (although the Tribunal noted
that individuals on Armed Forces’ lists cannot be identified from such
sources as working for DESO). In particular, he said it did not follow
that even a senior employee’s telephone number and e-mail should be
in the public domain. As a result, he contended that the likely prejudice
would manifest itself in there being first a risk to the interruption of
DESO’s and therefore the MoD’s business; secondly, by an attendant
risk to national security; and thirdly by virtue of possible harassment to
DESO staff. With regard to the second of these three factors, Mr Wray
contended that there was a risk of both direct prejudice to DESO staff
as well as the risk of interference with e-mail programmes. Although
he cited examples of two “hacking attacks” in a US context, he
provided no detailed evidence that any such attacks had been
conducted with regard to the MoD, nor did he provide any direct
evidence of a prior direct approach by a foreign intelligence service to a
DESO employee (other than a report by a DESO member of staff that a
known foreign intelligence service officer had made a direct request for
a copy of the DESO Directory). He placed particular reliance on the
policy effected by the United States Department of Defense which
operated a policy whereby only the names, official titles, organisations

Appeal Number: EA/2006/0027

and telephone numbers for personnel only at office director level and
above were disclosed, i.e. those in a so-called public facing role.
Finally, he maintained that the evolution of the MoD’s reply to the initial
request from Mr Evans reflected a genuine attempt properly to
recognise the appropriate public interest.

32. Many of the above points were revisited in Mr Wray’s cross-
examination, but a number of additional matters did emerge which are
worthy of comment. In particular, Mr Wray expressed the belief that
disclosure of the names of all staff (and to a greater extent, staff above
a certain level) might lead to their being harassed at home. He
accepted, however, that there was, and is, a legitimate public interest
in understanding the activities of the MoD and of DESO in particular.
He also accepted the very existence of DESO showed that there was,
in his words, “a declared Governmental policy of … supporting exports
within the control regime, because not every defence export is
permissible …” and that DESO existed, and indeed exists, “to support
the implementation of that policy”. He further confirmed that
communications emanating from within DESO might well disclose a
direct e-mail address and/or a direct phone number in respect of the
particular civil servant responsible for the communication in question.
However, he rejected the suggestion that the publication of all names
in the DESO Directory, especially the junior staff, necessarily helped
reduce the risk of corruption particularly in view of the existence and
effect of the Business Appointment Rules.

33. In answer to questions put to him by the Tribunal, Mr Wray gave a
further explanation of the differing grades of civil servants in MoD. In
brief, there are three management levels of senior civil servants below
that of a Permanent Secretary, namely, management levels 1, 2 and 3.
Mr Wray, and indeed the other DESO witness, Mr Millen, were
members of this last class, i.e. level 3. A senior civil servant at level 1
(just below Permanent Secretary level) would typically be described as
a director, while levels 2 and 3 would typically be called director
general and director respectively. Below those three levels of civil
servants, there are four further grades described as bands B, C, D and
E respectively. Band B is further subdivided into yet two further levels,
namely, B1 and B2, with the former being the more senior level. Band
C would similarly be subdivided into C1 and C2, whilst band D would
not be subdivided. Band E would also be split into E1 and E2. Mr
Wray described those occupying E2 as the “most junior of the non-
industrial civil servants”.

34. He also explained that with regard to civil servants not only occupying
the post of director, but also all levels below that, hospitality books
were maintained in which offers of hospitality were recorded and
required to be audited every year. This was to provide due protection
against any risk of corruption and in particular to reveal whether any
improper contacts had been established.

Appeal Number: EA/2006/0027

35. He accepted that some names within the DESO Directory, whilst
redacted in relation to the request, would appear in other related
listings, e.g. the Diplomatic List, though nothing in the latter list would
act as any form of cross-reference to DESO. It is fair to say however
that Mr Wray defended this apparently inconsistent policy on the basis
that there was an active concern about what he called the “mosaic
effect”, i.e. the risk that pieces of information released in different
contexts could be joined together in order to build up a larger picture.
He remained adamant however that the DESO staff in Saudi Arabia
were exposed to a particularly high level of risk to their personal health
and safety so as to cause all references to their names and personal
contact details to be redacted completely.

Evidence: Mr Millen

36. The Tribunal also received evidence from Mr Millen, a Director of
DESO, who has served in the MoD since 1980.

37. Mr Millen, in his witness statement, was more specific in relation to the
risks which could occur were the requested information to be disclosed.
He referred in particular to the Campaign Against the Arms Trade
(CAAT) and to a “stop DESO campaign” mounted by CAAT and related
organisations in 2006. In March this year, on the day of a DESO
symposium, CAAT was to hold (and in fact did hold) a peaceful
demonstration at the relevant venue and visits were planned to take
place in connection with the exhibition in question, i.e. the Defence
Systems Exhibition International (DSEi), due to take place in
September of 2007. Protests and demonstrations have occurred, and
are planned to occur, outside a number of defence manufacturers in
addition to those mentioned above. Although Mr Millen did not refer to
the commission of any acts of violence or even of phone or private
harassment directed to DESO employees at any time in the past, he
stated in his written evidence that: “the risk of violence/intimidation is
increased by the tendency for CAAT events to become a focus for
those who do not subscribe to the … non-violent philosophy”. He
pointed to events that had taken place at previous DSEi events, though
not in such a way as to implicate CAAT, and to the fact that prior to a
2005 exhibition, two defence companies had received threatening
letters addressed to the business and to individual employees. The
Tribunal interpreted Mr Millen’s evidence as a whole as not suggesting
that CAAT’s activities would lead to the above risks should the
information be disclosed: rather that other protestors who did not
share CAAT’s non violent philosophy might create risks as regards
DESO employees by attending exhibitions and other DESO – related
venues.

38. With regard to DESO staff based in Saudi Arabia, a poll had been
conducted in 2006 which showed that some 79% of those who
responded, representing in turn some 60% of the organisation, had
answered by saying they declined to have their names and contact
details made public.

Appeal Number: EA/2006/0027

39. In addition, Mr Millen pointed to the inherent risks to which all those
based in Saudi Arabia were subject principally based on security
concerns in that country. The Saudi Arabian staff were it seems, and
still are, based in secure compounds.

40. Mr Millen was asked about a certain page on the Directory which
prompted the question why the identity of all those whose names
appeared on that page and who were, with one exception, members of
the level 3 class of senior civil servant or higher or who were military
officers of equivalent rank) should not have their names disclosed. He
confirmed that despite the redaction of some of the names in question,
at one time or another during those persons’ terms of office, such
persons would have undertaken some activity which involved their
identity entering the public domain, albeit not to a wide public. He did
not, however, appear to accept that even persons who occupied levels
C and D might well have “significant responsibilities” to the extent that
they would maintain contacts on behalf of DESO with outsiders, though
their names had been redacted in the copy of the Directory supplied.
The Tribunal is aware, however, that a distinction needs to be drawn
between such “industry-facing” members of staff and those who are in
effect “public-facing”, ie staff likely to appear before Parliamentary
Committees or give lectures etc and that the former would probably
clearly outnumber the latter.

41. With regard to the January 2005 edition, he confirmed that it was
distributed at the DESO Symposium for that year, being the first
occasion that such a distribution had taken place at the venue in
question. He added that he was not sure that any of the specialist
journalists referred to in his witness statement who had received copies
of the Directory were, to his knowledge, told of the limited use to which
the publication was in principle subject.

42. He added that no record was kept as to how many directories were
taken away. He admitted however that with regard to a possible 2007
edition, thought was presently being devoted to a system of distribution
which was no longer dependent upon prior request, but was to be done
on the basis of a fresh request and by registering an interest. He also
admitted that at other trade events, e.g. Farnborough, no real
examination was made into the true identity of the person who might
make a request for a copy of the Directory. In such circumstances, a
request would be made of the person manning the DESO stand who
would generally, though not invariably, be an individual occupying a C
or D level grade. He also confirmed that copies of the 2004 Directory
were given to staff at hotels where overseas visitors having business
with DESO would stay to facilitate the making of those arrangements.

43. In answer to further questions put to him by the Tribunal, and with
regard to the possible 2007 Directory, Mr Millen stated that DESO
currently planned to exclude nearly all London staff who were part of
what he called the Saudi Project, but for the moment, only those staff
occupying senior grades had been the subject of non-redaction.

Appeal Number: EA/2006/0027

Evidence: Superintendent Pearl

44. The Tribunal also heard from Superintendent Stephen Pearl who is
head of the National Extremism Tactical Co-ordination Unit (NETCU).
In his written statement Superintendent Pearl describes NETCU’s remit
as dealing with “UK single-issue domestic extremism” particularly with
“the threat and consequences of Animal Rights Extremism (ARE)”. He
described ARE’s tactics as creating a “climate of fear”. He stopped
short of attributing the same tactics to CAAT. However, in his witness
statement he also states that the various protest groups including
CAAT “have been and are starting to adopt a number of [ARE’s]
strategies and tactics” referring to incidents in 2005 against the
employees of an arms manufacturer involving in this respect the
targeting of home addresses.

45. Superintendent Pearl was cross-examined by Counsel both for the
Commissioner and for Mr Evans. It is perhaps fair to say that as
distinct from the content of his witness statement referred to above, his
oral evidence went no further than saying that there was a risk (if not,
some evidence to suggest) that members of CAAT might be engaged
in tactics similar to those waged by ARE. He stated that some
individuals engaged in ARE – related activities were present at other
protests, eg the G8 summit in Scotland where individuals involved in
anti-arms trade protest were also present. In addition there was a
further discrepancy between the content of Superintendent Pearl’s
witness statement and his oral evidence in relation to the risks he felt
were present with regard to the harassment of DESO employees: in
his witness statement he attributed the risks in particular to those
individuals who had “unusual names” whereas he stated in evidence
that “all name combinations” could now face the same risks given the
sophistication of electronic searches and other tracking or tracing
mechanisms.

46. He was also asked by the Tribunal what his view was regarding the
relatively wide dissemination of the 2004 Directory. In particular he
was asked whether as far as that Directory was concerned, it could be
said that the “cat was out of the bag”, and he admitted to some extent
that it was.

Evidence: Ann Feltham and Mr Leigh

47. Mr Evans tendered two witnesses, a Miss Ann Feltham on behalf of
CAAT and a fellow journalist on The Guardian, David Leigh. Both were
cross examined at length. Miss Feltham has been employed by CAAT
since 1985 and is currently Parliamentary Co-ordinator. In her witness
statement she confirms that CAAT has about 15,000 supporters, there
being no formal membership. She claimed that CAAT supporters did
not indulge in violent protest or similar acts and were not liable to use
intimidatory or threatening behaviour of the kind attributed by
Superintendent Pearl to the activities of ARE. CAAT itself was
expressly committed to non-violent protest which usually took the form

Appeal Number: EA/2006/0027

of protests at trade fairs although it was not unknown for CAAT
supporters to attend and protest outside DESO’s offices. In cross
examination she admitted that in the past CAAT’s supporters had been
“very supportive” of actions by others who had damaged a Hawk jet but
that on behalf of CAAT she stated that she would have no hesitation in
condemning home visits or damage to individual property. She refuted
the suggestion that to her knowledge at least, any CAAT supporter
would seek to follow a DESO employee to their home if they managed
to obtain the employee’s personal address or contact details.

48. Mr Leigh has been an investigative journalist for 30 years and is
currently an Assistant Editor (Investigations) on The Guardian. He has
worked alongside Mr Evans for some time regarding the activities of
DESO. In his witness statement he quotes an answer given in
Parliament by Adam Ingram MP to the effect that the Directory was, in
Mr Leigh’s words, “not classified in any way or secret”. He referred to
the so called “revolving door” policy within DESO reflecting not only the
fact that the head of DESO was invariably recruited from inside the
commercial arms industry but also the wider concerns that such a
policy had caused regarding the potential for the inappropriate transfer
of knowledge and influence relating to the movement of personnel
beneath that level. He pointed to the resulting risk of a conflict of
interest and he highlighted the overriding need for transparency
generally in relation to the arms trade. He referred to two individual
cases involving respectively the commission of a criminal offence and
the alleged commission of a disciplinary offence by former DESO
officials (as well as to an instance of DESO officials allegedly having
been interviewed by the police under caution) where there had been a
need to obtain further information and where contact details of the type
redacted in answer to the request made in the present case had been
necessary to verify or obtain the necessary factual information.

49. He admitted that The Guardian had itself obtained a leaked copy of the
Directory. In the wake of obtaining it he stated in his witness
statement that The Guardian had published several articles naming
DESO officials without any subsequent complaint by or on behalf of
DESO or the individuals involved. He added that with regard to
national security The Guardian had never been asked to refrain from
publishing what he described as “innocuous materials” merely on the
ground that it might interest or attract members of foreign intelligence
services.

50. In answers put to him on behalf of the Commissioner, Mr Leigh in
describing DESO as “rather a weird department”, pointed to its
inherently changing nature, given the fact that the Government itself
was formerly an arms manufacturer. However, DESO still worked
“closely with and supported” companies who (at least according to Mr
Leigh) “do sometimes engage in bribery”. Of particular concern he said
was the movement of individuals from DESO to jobs in related
companies supplying arms or related defence services. Disclosure of

Appeal Number: EA/2006/0027

the Directory was, he said an “essential starting point” to any enquiry to
know who was doing what, as reflected in particular in a case involving
a John Porter, a DESO official who, it was alleged, had taken
unauthorised free holidays from British Aerospace (BAe) between 2000
and 2002 and who retired before any action was taken. Mr Leigh
claimed that The Guardian knew of the story at an early stage and was
reluctant to publish without proper verification which might have been
forthcoming had the Directory been publicly available.

The competing arguments on the Appeal: Section 36

51. The Tribunal now turns to the varying contentions made by the parties
with regard to the sections of FOIA relevant to this appeal.

52. There is no dispute between the parties as to the relevant principles
which govern the operation of section 36 of FOIA. See generally
Guardian Newspapers & Brooke v Information Commissioner and BBC
(EA/2006/0011 and EA2006/0013). Principally, the Tribunal is entitled
to review the Commission’s factual findings and reach its own
conclusions on all the material before it. In such circumstances the
Tribunal is entitled to reach its own views as to where the balance lies
and it can, of course, consider it appropriate to differ from any
conclusion or conclusions reached by the Commissioner. The
Guardian Newspaper case also confirms that rather than there being a
or any presumption in favour of disclosure under FOIA, “there could be
said to exist what is sometimes to be called a “default” setting”. See
The Guardian Newspaper decision above at paras 81 to 85 inclusive.
As to the manner in which the issue of public interest should be
addressed, in the context of section 36 of FOIA see the Guardian
decision supra, particularly at paragraphs 87 to 92 inclusive, especially
at 92.

53. The Commissioner’s decision highlighted five principal elements which
are already referred to above but can be repeated here for the sake of
convenience and which are said to militate in favour of disclosure,
namely:

(1) the need for transparency, especially as regards the manner in
which personnel move between defence companies and the MoD;

(2) apart from the matters set out in (1) disclosure of the Directory
would promote a better understanding of DESO generally and its
relationship with the arms industry in particular;

(3) disclosure would further the accountability of public officials, i.e.
those beneath ministerial level;

(4) again and going beyond the point made in (1) above, disclosure
would improve public confidence in the integrity of DESO’s staff
and officials generally; and

Appeal Number: EA/2006/0027

(5) disclosure would make DESO staff more accessible to the public
through the medium of individual contact details.

54. Following the Commissioner’s decision the MoD had contended that
disclosure of the Directory in full would damage DESO’s ability to
function and would not help any accountability or any greater public
understanding.

55. From what has been set out above with regard to the evidence which
has been heard by the Tribunal, a number of general observations can
usefully be made at this stage. First, there can be no serious doubt
that there is a strong public concern if not some controversy about the
arms industry and in particular about the movement of personnel
between that industry and Government. It is enough to point to the
continuing present public debate over allegations regarding the
payment of bribes by or on behalf of BAe in favour of Saudi Arabian
officials, a matter which was referred to in evidence before the
Tribunal.

56. Secondly, the Tribunal has little doubt that in practical terms the
Directory, ie the 2004 edition was very widely disseminated without any
real form of restriction, in the sense that any person (including possibly
members of foreign intelligence services) who had a serious intent to
obtain a copy could easily have done so and most probably did in fact
do so.

57. Thirdly, the Tribunal accepts the Commissioner’s contention that again
on a practical level the names of many of DESO’s personnel who
occupy the rank of Senior Civil Servants in the 2004 Directory are
already sufficiently in the public domain given the fact that they are
listed in other related Civil Service and military year books and similar
listings. The Tribunal wishes to stress, however, that it does not regard
information as being in the public domain merely because it was
inadvertently put on a website for a short period: rather the Tribunal
takes into account all the evidence regarding dissemination of the
Directory referred to during the Appeal.

58. Finally, the Tribunal is not persuaded by the evidence it has heard that
there is a substantial risk of violent or disproportionate protest at the
moment against individual DESO staff members or personnel either at
work or at home or to their families whether here or abroad. Clearly the
question of security considerations affecting Saudi Arabian based staff
involves somewhat different considerations given the political climate in
that country. However, the Tribunal is equally open to the suggestion
that no one can properly foresee the occurrence of a particular form of
protest and there must be a risk, no matter how small, of there one day
being the targeting of DESO staff in a way which was in general terms
addressed by Superintendent Pearl. However, the fact remains that
there is no evidence that that type of occurrence has occurred as yet,
or is likely to do so in the foreseeable future.

Appeal Number: EA/2006/0027

59. The MoD advanced nine grounds of appeal with regard to the
Commissioner’s Decision Notice in the context of section 36.

60. The first relies on the contention that civil servants as distinct from
Ministers are not accountable to the public. The Tribunal accepts that
as a matter of strict constitutional principle that concept is undoubtedly
correct. Reliance was placed on a section in one of this Tribunal’s own
judgments, namely DfES v Information Commissioner and the Evening
Standard (EA/2006/006) at paragraph 84. However, the Tribunal there
noted that such a principle did not, of itself, represent “an argument for
withholding the names of Civil Servants but the wider impact point may
require consideration in some cases”. This Tribunal respectfully
agrees. Questions of competing public interests raise issues which of
necessity go beyond pure considerations of constitutional
accountability. Those persons who expend public money must in
general terms be expected to stand up and account for the activities
they carry out in so doing, see eg Corporation Officer of the House of
Commons v Information Commissioner and Norman Baker MP
(EA/2005/0015 and 0016) particularly at paragraphs 77 and 78.

61. Reference was made in argument to the Nolan Committee’s seven
principles of public life which state in relevant part that:

“Holders of public office are accountable for their decisions and actions
to the public and must submit themselves to whatever scrutiny is
appropriate to their office.”

62. It is specifically stipulated that for those purposes “public office” should
include “Civil Servants and advisers”. Although the Tribunal would
accept that the degree of scrutiny may vary according to the nature of
the office held, there is certainly no immutable principle that civil
servants should never be held accountable in the way contended for.
Reliance was also placed on the applicable Business Appointment
Rules. The Tribunal examined the relevant annual reports in respect of
the Rules but feels that the effect of the Rules is in practice limited to
the tracking of the careers only of those in a senior Civil Servant
position as distinct from those who might occupy more junior grades.

63. The second ground advanced by the MoD was that the disputed
information in the Appeal did not raise any matters which could
properly be said to be the subject of any accountability. In the
Tribunal’s view there are at least 2 answers to this argument. First
accountability is a general concept which may fasten on to the duty of a
particular civil servant or as here upon the actions of a department, or
even a wider constituency, such as the Government itself. What is
here being sought is information which happens to consist of individual
names and contact details. The latter can be just as much the subject
of accountability in the wider sense of that term as the recounting of a
specific policy carried out by an individual Civil Servant. Secondly, the
notion of accountability even in its widest sense is no more than an
element to be taken into account in striking the required balance

Appeal Number: EA/2006/0027

between the competing public interests for the purposes of FOIA and
with regard to a section such as section 36.

64. The Tribunal agrees with a key element in Mr Leigh’s evidence
summarised above. Anyone with an interest in the activities of DESO
would unquestionably be assisted by being provided with a copy of the
Directory in largely unredacted form. There is an issue as to the
degree of redaction and that will be referred to below. As a general
principle, however, the second contention of the MoD is rejected by the
Tribunal.

65. Thirdly, it was argued that the Commissioner’s order could not be
sustained by the Decision Notice. As indicated above, the Tribunal is
in no way bound by the content of the Commissioner’s Decision Notice
and its reasoning. At the root of the MoD’s case with regard to this
ground is its concern that a line necessarily had to be drawn between
some DESO staff who might occupy senior positions and/or those who
held “public-facing” roles (as distinct from “industry-facing” roles) as
against those who might not enjoy either of those responsibilities or
functions.

66. Based on the evidence which this Tribunal has heard and as will be
explained further below, insofar as the MoD is advancing a general
proposition the Tribunal would agree. A line clearly has to be drawn
somewhere both with regard to the identity of those in the Directory as
well as with regard to the extent to which the relevant contact details of
all members irrespective of seniority should be disclosed.

67. The MoD’s fourth argument was to the effect that disclosure would not
improve public understanding of the MoD’s actions and those of DESO
in particular. For this purpose reliance was placed on information as
to the activities of the MoD already present on its website and the fact
that disclosure of the Directory would say nothing about the underlying
concerns which have been referred to above, namely the state of the
relationship between the arms industry and Government. Reliance
was also placed on the internal measures dealing with disciplinary
matters referred to in particular by Mr Wray including but not limited to
the Business Appointment Rules.

68. The Tribunal respectfully disagrees with this contention. As noted
above, it is almost undeniable that disclosure of the appropriate names
at least would facilitate enquiries into tracking the movements of those
who moved from DESO to the arms industry or vice versa; moreover
were there to be any enquiry into possible wrongdoing there could
equally be little, if any, doubt that disclosure of all relevant names
would facilitate proper enquiry being conducted by or on behalf of the
public into such activities. Mr Leigh clearly indicated that there were
other concerns which would be eased if some additional degree of
disclosure were applicable. Moreover, the Directory has already
undergone a wide degree of circulation.

Appeal Number: EA/2006/0027

69. The MoD relied upon the judgment of a US District Court in the District
of Columbia dated 4 December 2006 which ordered the withholding of
the names and duty stations of federal officers in the US Department of
Defense by virtue of the US equivalent of FOIA. The Tribunal is not
minded to place any reliance on such a decision when the parameters
of the guidelines under FOIA are already clearly established under the
Act itself as well as under the Tribunal’s own evolving jurisprudence.

70. The fifth ground of appeal revisits the question already referred to
above regarding the possible existence of a presumption of disclosure
under FOIA. Whether or not the Commissioner erred in his Decision
Notice in adopting an incorrect starting point, the Tribunal is not bound
by his Decision Notice. Again reference is made for this purpose to the
Tribunal’s earlier decision of The Guardian Newspaper and Brooke v
Informational Commissioner supra.

71. The sixth ground of appeal is that undue weight was given by the
Commissioner to Mr Evans’ arguments. Without intending any undue
disrespect to the careful way in which the MoD has developed its
arguments both before and during the Appeal this ground takes issue
with the weight attached by the Commissioner to certain factors which
have already been alluded to, in particular the extent to which the
Directory has already been disseminated. The Tribunal feels that the
contents of this sixth ground are sufficiently dealt with elsewhere.

72. The seventh ground alleges that the Commissioner gave insufficient
weight to the objective risk of prejudice. The possible forms of
prejudice have already been referred to in connection with and arising
out of the evidence put before the Tribunal. They can usefully be
summarised as follows:

(1) physical disruption to DESO’s operations, eg by preventing or
restricting access to visitors attending trade exhibitions and
symposia, etc;

(2) the overloading of DESO’s IT system by spam emails;

(3) the use of a virus or series of viruses to corrupt the IT system;

(4) the risk to staff of abusive phone calls or the sending of letters
containing dangerous or poisonous substances;

(5) the risk to national security insofar as not already covered by (1)
to (4); and

(6) the provision to foreign intelligence services of all contact details
and the resultant impact on commercial confidence if all DESO
staff or most of them were susceptible to approaches by foreign
intelligence services.

Appeal Number: EA/2006/0027

Insofar as not touched upon already in this judgment, the Tribunal has
carefully considered each of those potential risks but has come to the
clear conclusion that in each case the risk of the prejudice identified is
not so high as to justify maintenance of the relevant exemption in
favour of non disclosure when weighed against the public interest in
favour of disclosure particularly in the light of two matters which have
already been referred to, namely the strong public interest in
understanding the way in which the arms industry is run and the fact
that the list has already been put into wide circulation.

73. With particular regard to the evidence regarding possible protest (see
sub paragraphs (1) and (4) above), although the Tribunal is prepared to
accept that the risk of personal harassment whether electronically
created or otherwise does constitute prejudice, the likelihood at the
moment is not so significant when weighed against all the other
elements presented before it in evidence on the Appeal. The Tribunal
is impressed by the argument put on behalf of Mr Evans that it should
disregard any disruption to the internal workings of DESO which would
or would be likely to be caused by disclosure except where such
disruption would be so great as to have some appreciable impact on
DESO’s ability to meet its wider objectives or purposes. That purpose
has been already sufficiently highlighted, namely the implementation of
the Government’s policy of supporting UK based companies to win
contracts for the export of defence arms and services. Misdirected
enquiries from the public cannot in any way, in the Tribunal’s view, be
regarded as impinging upon the proper ability of DESO to function in
accordance with its mandate. Campaigners who are against the arms
trade, whether taking action electronically or by means of abusive
letters or even personal harassment have not, according to the
observations made above, been shown to have conducted an intense
campaign along those lines hitherto. Naturally, the Tribunal accepts
that the risk is ever present. On the other hand the Tribunal is not
convinced that the evidence so far given regarding the severity, extent
and frequency of any disruption to DESO’s ability to perform its
functions is anything but “extremely limited” in the words of the written
submissions submitted on behalf of Mr Evans. The Tribunal fully
appreciates that criminal acts under cover of darkness to a person’s
property represent grave threats by any standards but Superintendent
Pearl admitted that any “hard core” perpetrating such activities
represented a very small group of people. The Tribunal feels that to
restrict publication of all but a few names in the Directory would be an
over-reaction: the severity, extent and frequency of such attacks are,
therefore, viewed as low on the evidence that the Tribunal has heard.
The Tribunal also agrees with the Additional Party that disclosure even
on a limited scale, would considerably help to deter corruption, aid
public reassurance as to whether any impropriety was taking place and
would generally encourage and aid further relevant enquiries should
they be required. The Tribunal therefore agrees that the public interest
in maintaining the section 36 exception is heavily outweighed by the
public interest in disclosure.

Appeal Number: EA/2006/0027

74. The eighth and ninth grounds raised by the MoD can be treated
together. They both take issue with the fact that the Commissioner
failed to give sufficient weight to the subjective assessment of risk by
MoD and/or DESO itself. In particular reliance is placed on the views
expressed by members of the staff of DESO. The Tribunal feels that
although this is a relevant factor it must be measured against other
more objective criteria although clearly the views of the Saudi Arabian
staff are to be given particular weight in the context of the present
case. The Tribunal finds, however, that there is relatively little
persuasive evidence as to the subjective assessment of risk limited as
it is to internal staff surveys. These grounds together reflect a
complaint by the MoD that the Commissioner failed properly or at all to
afford due importance to the MoD’s overall concerns which reflect
many of the facts already canvassed in evidence on the appeal. The
Tribunal has already clearly indicated that in the light of the evidence it
has now received, it has not been demonstrated that the public interest
in maintaining the exemption outweighs the public interest militating in
favour of disclosure subject to the qualification already noted as to
where the line should be drawn in terms of redaction.

Section 38

75. Section 38 is a prejudice-based exemption but it has now been
established by this Tribunal that the question whether disclosure would
prejudice the subject matter of the exemption entails a consideration of
whether the prejudice is more likely than not: that in turn involves a
consideration of whether there is a significant and weighty chance of
prejudice. See eg the recent decision of the Tribunal in OGC v
Information Commissioner (Case No. EA/2006/0068 and
EA/2006/0080).

76. The Commissioner considered the exemption was not engaged and
therefore he did not consider the balance of public interest. This
Tribunal disagrees, noting that with regard to the evidence which has
been presented before it, there is a sufficiently serious suggestion that
there is the requisite likelihood of prejudice in the form of
endangerment to the physical or mental health of DESO personnel
even though the risk of endangerment could be viewed as small, save
in the case of Saudi Arabia based staff, such as to engage the
provisions of Section 38. However, the Tribunal agrees with the
contentions made on behalf of the Commissioner and Mr Evans that
even if section 38 is engaged the risk of endangerment is, on the
evidence, slight and yet again as in the case of section 36 any public
interest in maintaining the exemption is easily outweighed by the public
interest in disclosing the Directory.

77. With regard to the staff in Saudi Arabia the Tribunal finds that sufficient
measures have already been taken by DESO to protect them against
these risks, eg by ensuring that they live and operate within secure
compounds and otherwise that proper security arrangements are taken
in their regard. The Tribunal was informed that a tour of duty in Saudi

Appeal Number: EA/2006/0027

Arabia was normally 3 years and believes that in all the circumstances
the existing safeguards are sufficient for the purposes of striking the
balance which is required within the context of Section 38.

Section 40

78. If a person makes a FOIA request for personal data, as the latter term
is defined by the Data Protection Act 1998, and disclosure would
infringe a data protection principle as specified by that Act then there is
an absolute exemption against disclosure. No question of balancing
competing public interests arises even in relation to the applicability of
the data principle which is in play. The first of the eight data protection
principles set out in Part 1 of Schedule 1 has already been outlined and
consists of personal data which is to be processed “fairly and lawfully”
provided one of the conditions in Schedule 2 is met. The only
potentially relevant condition is that set out in paragraph 6(1) of
Schedule 2 which provides that:

“The processing is necessary for the purpose of legitimate interest
pursued by the data controller or by the third party or parties to whom
the data are disclosed, except where the processing is unwarranted in
any particular case by reason of prejudice to the rights and freedoms or
legitimate interests of the data subject.”

79. There is no doubt that the data in question in this appeal constitutes
personal data. However, the Tribunal agrees with the Commissioner
and with the submissions made on behalf of Mr Evans that the data
here pertains to the public lives and activities of the data subjects and
not to their private lives. See generally Corporate Office of House of
Commons v Information Commissioner and Norman Baker MP supra
especially at paragraph 78. The expectation of the DESO staff with
regard to their professional lives cannot equate with the expectations
they might have as regards their private lives although for almost all
staff their names could be linked to their homes or to aspects of their
lives outside work and indeed there may be some overlap in any given
case. On the other hand the Tribunal recognises that even in the case
of civil servants who might otherwise be expected to lose some degree
of anonymity on taking up such employment, total loss of anonymity
should not be considered without good reason. This view is subject to
the effect of the wide dissemination of the Directory to date within the
defence industry as well as to the publication of some names of DESO
staff on the pages of The Guardian without apparent adverse effect.
Moreover, paragraph 6(1) will only be satisfied where the legitimate
interests of the public outweigh or are greater than the prejudice as to
the rights, freedoms and legitimate interests of the data subjects which
will arise if the information is disclosed. The public interest in
disclosure has already been referred to above. Any prejudice to the
rights, freedoms or legitimate interests of DESO staff which might
occur through disclosure of the Directory could only be minimal, if only
because the data sought is effectively only professionally related and
must be viewed subject to the wide dissemination of the Directory to

Appeal Number: EA/2006/0027

date. Moreover, as has been said more than once above, the targeting
of the anti-arms trade movement has not so far been directed in any
meaningful sense against individuals who in this case happen to be
individual civil servants (as distinct from employees of companies
within the arms industry who have been targeted by certain anti arms
trade campaigners), and although there is a risk attendant upon the
same, the Tribunal finds that there is no basis for suggesting that there
is a real risk that disclosure of the Directory would lead to harassment
of individuals either at work or at their home addresses. In the
circumstances the Tribunal is satisfied that the conditions set out in
Schedule 2(6) are satisfied.

Section 24

80. Reliance is placed on Section 24 although such reliance occurred fairly
late in the day. The MoD did not seek to rely upon Section 24 until 10
January 2007 at a time when almost two years had passed since the
request was first made. It is clear to the Tribunal that the national
security aspect was raised only after these proceedings were being
prepared. No ministerial certificate has been obtained certifying that
exemption is required for the purpose of safeguarding national security.
Furthermore, as is sometimes the practice in such cases the Tribunal
has not been given on a closed basis any evidence which pertains to
national security issues. The Tribunal also considered that national
security issues were not sufficiently strong in the case of DESO given
that DESO was an entity predominantly, if not wholly, concerned with
sales rather than with matters of security.

Qualifications to the Decision Notice

81. In the light of the evidence it has heard, particularly from Messrs Wray
and Millen, the Tribunal is, however, persuaded that there remain
cogent reasons for redacting some names and contact details, ie email
and telephone contact details from the Directory but not on the level
which was eventually settled upon by the MoD.

82. The task facing the Tribunal is perhaps no less susceptible to a degree
of arbitrariness than that which faced the MoD itself. Overall the
Tribunal has determined that the “bar” should be placed between B2
and C grades. This would result in practice (and reflecting material
published elsewhere) in the disclosure of the identities of the following
persons, namely:

(i) all Senior Civil Servants;

(ii) all those at Director or Director General level and above in
organisational terms;

(iii) all those who appear in the Diplomatic Service List even if they
are below the B2 level;

Appeal Number: EA/2006/0027

(iv) all those appearing in Dods Companion and/or the Civil Service
Year Book, again even if below B2 level;

(v) all those who are likely in general terms to give evidence before
a parliamentary select committee or before the public accounts
committee; and

(vi) insofar as not covered by (i) to (v) above those who occupy and
administer managerial positions and functions.

The Tribunal feels that this approach reflects the same form of realism
which finds expression in Secretary of State for Work and Pensions v
Information Commissioner (EA/2006/0040) especially at paragraphs 92
and 93. The Tribunal notes although that DESO is not itself an
Executive Agency (even though the DSA, which in 2004 was part of
the DESO, is such an Agency) it is, therefore, subject to an
organisational structure which differs in make up from that which might
obtain in an orthodox Government department. The intent of the
qualifications listed above is to reflect this feature of DESO’s structure.
The Tribunal also feels that placing the “bar” at the B2 level would allow
the public and/or the media to contact persons who generally speaking
might be seen to be potentially somewhat more susceptible to adverse
influences than those occupying a more junior level.

83. Mr Crow QC on behalf of the MoD informed the Tribunal that 44
individuals occupied Grades B1 and B2 within DESO. In particular the
Tribunal feels that placing the bar at the suggested level would be
reasonably consistent with the deployment of public servants in other
comparable departments. For example, Superintendent Pearl referred
to the Police Almanac and the Tribunal is aware that local authority
officers of a senior level are in general terms accountable to local
authority committees.

84. The Tribunal is not satisfied with Mr Wray’s suggestion that the bar
should be set at senior civil servant level and no lower. In setting the
bar at the level suggested, the overall aim of the Tribunal has been to
ensure that junior staff otherwise more vulnerable than their senior
colleagues be protected.

85. The Tribunal entirely appreciates that many staff even at D level
Grades might well be occupying so called industry-facing roles both by
their possible attendance at trade exhibitions and the like and by virtue
of their official responsibilities. Overall, however, the Tribunal feels that
the arguments against disclosure in such cases resonate more strongly
than in the case of more senior staff.

86. It follows the Tribunal rejects Mr Evans’ call that all names be
published. The Tribunal emphasises that it is not setting any binding
precedent: it is of necessity having to address the specific terms in the
2004 Directory. Nor is the formula the Tribunal now suggests
appropriate so as to be treated as in some way transmissible to or

Appeal Number: EA/2006/0027

operable within the setting of any other Government Department, even
the MoD itself outside the confines of DESO. The “mix” within DESO is
unique: there is an amalgam of staff drawn from the forces, the arms
industry and the MoD itself. No real parallel can be drawn, especially
when it comes to the movement of personnel between the arms
industry and DESO, with the transfer or movement of staff between
other Government Departments or between such departments and the
outside world. In particular the Tribunal sees no resultant useful
analogy between DESO and the manner in which a private company
informs the shareholders of the identity and personal characteristics of
its employed staff, if nothing else since a private company is by
definition not a public authority and is subject to a completely different
set of statutory regimes.

87. The Tribunal is sensitive to the fact that DESO did not consider placing
any form of security marking on the Directory until reasonably early in
2005. This clearly constitutes some evidence that overall there is now
a heightened sensitivity to electronic interference of some sort to the
activities of DESO. Moreover, the placing of a bar at the level
suggested by the Tribunal seeks to strike a suitable balance between
the types of risk as to which it has heard evidence and as to the
likelihood of such risks occurring. The fact that the 2005 Directory has
borne a description dealing with its confidentiality does not mean that
an all-or-nothing disclosure exercise should be carried out.

88. The Tribunal is not minded, however, to sanction the disclosure of all
telephone and email contact details, save for those contact details
which appear in the Civil Service Year Book and similar publications. If
there is a public interest inherent in the public’s ability to contact
anyone, even those above B2 level directly by email, the same is
outweighed first by the risk of increasing, if not undue, interference in
the carrying out of those individuals’ responsibilities. As indicated
above it was argued on the Appeal that the means of electronically
disrupting business are continuously evolving and becoming more
sophisticated and that the MoD, for example, is becoming or might
become increasingly unable to counter such increasingly sophisticated
techniques. Overall, however, the Tribunal sees no strong arguments
militating in favour of disclosure of telephone and email contact details,
save as indicated above. The Tribunal does appreciate that no doubt
as a matter of course email contact addresses will go out on
correspondence emanating from DESO but then that does not in the
Tribunal’s view constitute a very strong pointer in favour of disclosure
of blocks of email addresses as in the Directory.

89. In particular, countervailing risks such as the speed of disruption, the
fact that there is likely to be continuous interruption and the risk of
inadvertent loss or leakage of information constitute in the Tribunal’s
view substantial factors militating against disclosure of such details.
The sophistication of electronic intrusion grows daily and the more that

Appeal Number: EA/2006/0027

can be done to restrict access to email details, perhaps the better, in
circumstances such as these.

90. The Tribunal was sufficiently impressed by evidence provided during
and after the appeal by the MoD as to its switchboard’s response rates
and figures. These show that access to DESO is largely guaranteed
by the existing system in a way which meets the demands of the public
on the one hand and the needs of DESO to conduct its business
internally, efficiently and effectively on the other.

91. With respect to staff based in Saudi Arabia, the Tribunal is not
persuaded that the risks attendant upon the release of names as
distinct from telephone and email details are in any way substantially
different to the risks attendant upon staff elsewhere. In his witness
statement Mr Millen suggests that Saudi staff names may not be
published in future but this is a matter for the MoD and not for the
Tribunal. Neither is the Tribunal persuaded that London-based staff
working on the so called Saudi Project require any additional protection
other than those which would be provided by the Tribunal’s
reformulation of the Commissioner’s Decision Notice.

Conclusion

92. For all these reasons the Tribunal dismisses the appeal but substitutes
the Decision Notice in the terms set out at the beginning of this
Judgment.

David Marks
Deputy Chairman

Date 20 July 2007

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	United Kingdom Information Tribunal including the National Security Appeals Panel
You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Ministry of Defence v Information Commissioner and Evans [2007] UKIT EA_2006_0027 (20 July 2007) URL: http://www.bailii.org/uk/cases/UKIT/2007/EA_2006_0027.html Cite as: [2007] UKIT EA_2006_0027, [2007] UKIT EA_2006_27



	Appeal Number: EA/2006/0027

	Appeal Number: EA/2006/0027

	Freedom of Information Act 2000 (FOIA) Heard at Harp House, London, EC4 Decision Promulgated 20 July 2007 BEFORE INFORMATION TRIBUNAL DEPUTY CHAIRMAN David Marks and LAY MEMBERS Rosalind Tatam Gareth Jones Between MINISTRY OF DEFENCE Appellant and INFORMATION COMMISSIONER Respondent and ROB EVANS Additional Party Representation: For the Appellant: Jonathan Crow QC and Kate Gallafent of Counsel For the Commissioner: Timothy Pitt-Payne of Counsel For the Additional Party: Aidan Eardley of Counsel

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	Appeal Number: EA/2006/0027 any time was, required for the purpose of safeguarding national security shall, subject to section 60, be conclusive evidence of that fact. (4) A certificate under subsection (3) may identify the information to which it applies by means of a general description and may be expressed to have prospective effect.” 4. Section 1(1)(b) expresses one of the guiding principles of FOIA, namely that a person makes the request for information from a public authority and is entitled to have that information communicated to him. Section 60 entitles the Information Commissioner (the Commissioner) or an Applicant making a request for information to appeal to the Tribunal against the making of the certificate. Section 60, however, is not relevant to this Appeal. 5. Section 36 of FOIA deals with what is described in the Head Note as “Prejudice to effective conduct of public affairs”. This also is a prejudiced-based exemption. By section 36(2), it is provided in relevant part that: “(2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act –

	(c) would otherwise prejudice or would be likely otherwise to prejudice the effective conduct of public affairs.” 6. Section 38, again, is a prejudiced-based exemption. It provides that: “(1) Information is exempt information if its disclosure under this Act would, or would be likely to – (a) endanger the physical or mental health of any individual, or (b) endanger the safety of any individual.” 7. Finally, section 40 which deals with personal information provides in relevant part that: “(1) Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject. (2) Any information to which a request for information relates is also exempt information if – (a) it constitutes personal data which do not fall within subsection (1), and (b) either the first or second condition below is satisfied.

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	Appeal Number: EA/2006/0027 (3) The first condition is – (a) in a case where the information falls within any of the paragraphs (a) to (d) of the definition of “data” in section 1(1) of the Data Protection Act 1998, that the disclosure of the information to a member of the public otherwise than under this Act would contravene – (i) any of the data protection principles… “ Chronology 8. The request was made by Mr Evans by letter dated 11 January 2005. Mr Evans wrote on Guardian-headed notepaper. Under cover of a letter dated 10 February 2005, DESO supplied a redacted copy of the Directory having removed names of staff and related contact details, but leaving in the titles of the posts held. Organisational information including posts’ titles was provided, but staff names and contact details were redacted as indicated, together with the locations of staff based in Saudi Arabia. No redaction was made as to the name of the Head of DESO. Reliance was placed on section 40 of FOIA as well as sections 44 and 38. Section 44 deals with exempt information being not disclosed if disclosure is otherwise prohibited by or under any enactment. No further reliance has been placed for present purposes on section 44. Reliance was placed on section 40 on the basis that the individuals whose names otherwise appeared in the Directory expected their data to be disseminated only “for use by DESO, for the wider MoD Department and security cleared members of the UK Defence Industry.” 9. Mr Evans then asked for an internal review. The result of that review was reported to him by letter dated 5 May 2005 and signed by David Wray as “Director of Information (Exploitation), Ministry of Defence.” Mr Wray gave evidence before the Tribunal and further reference will be made to that below. The following principal points were made in his letter, namely: (1) the earlier redaction of the general locations of those serving with UK MoD teams in Saudi Arabia which should have appeared on page 25 of the Directory was confirmed; (2) the main switchboard number of DESO previously redacted was released, being a switchboard number at its principal London premises at Castlewood House; (3) the ranks of all military personnel listed in the Directory should not be redacted as had previously been done; and (4) reliance was placed on section 21 of FOIA which exempted information if otherwise reasonably accessible by other means, but only insofar as the names and contact details of DESO staff

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	Appeal Number: EA/2006/0027 persons which provided services to DESO, an occurrence which took place regularly. Other recipients included other Government departments, two Foreign Embassies and one High Commission in London. In the words of Mr Millen’s own statement: “A copy was provided if the request came from a member of the UK Defence Industry or if the requester concerned had an accepted reason for doing business with DESO.” 24. Not surprisingly, the Directory was issued to all DESO staff. 25. In 2005, a revised version of the Directory was published and more recipients than had been the case in 2004 were supplied with copies, including three “specialist journalists” and employees of Newsdesk Communications Limited which is an entity dealing with the defence industry. For a while it seems, a copy was available on what was called the “partners’ site” of the DESO internet (an area of that site accessible by password). During the period in question, DESO discovered that the Society of British Aerospace Companies had placed a copy of the Directory on their own website and it was immediately removed on request. 26. In consequence and in relation to the 2005 editions (there apparently being 2 or 3 in that year, although only 1 in the format of the 2004 Directory) DESO printed a reminder on the cover that the Directory was for Government and industry use only. As at the date of the hearing, plans for a 2007 edition were in abeyance as indicated above. 27. The effective questions before the Tribunal were therefore: (1) whether all the names given in the 2004 Directory or whether no further names, or only the names of employees in a certain category or class should be released and if the latter, the proper extent of such category or class; and/or (2) whether direct dial telephone numbers should be released; and/or (3) whether email details should be released. The evidence: Mr Wray 28. The Tribunal heard from Mr Wray. He was the person responsible for supervising the MoD internal review and as indicated above, signed the letter setting out the reasons underlying the findings of the review to Mr Evans. In his written statement, he referred to a number of matters which he regarded as relevant to the MoD’s appeal. First, he stated and indeed stressed that in accordance with the so-called Osmotherley rules, civil servants were accountable to Ministers and not directly to Parliament. This formed one of the principal grounds of appeal by the MoD on this Appeal. He therefore maintained that to ask civil servants

	9



	Appeal Number: EA/2006/0027 and telephone numbers for personnel only at office director level and above were disclosed, i.e. those in a so-called public facing role. Finally, he maintained that the evolution of the MoD’s reply to the initial request from Mr Evans reflected a genuine attempt properly to recognise the appropriate public interest. 32. Many of the above points were revisited in Mr Wray’s cross- examination, but a number of additional matters did emerge which are worthy of comment. In particular, Mr Wray expressed the belief that disclosure of the names of all staff (and to a greater extent, staff above a certain level) might lead to their being harassed at home. He accepted, however, that there was, and is, a legitimate public interest in understanding the activities of the MoD and of DESO in particular. He also accepted the very existence of DESO showed that there was, in his words, “a declared Governmental policy of … supporting exports within the control regime, because not every defence export is permissible …” and that DESO existed, and indeed exists, “to support the implementation of that policy”. He further confirmed that communications emanating from within DESO might well disclose a direct e-mail address and/or a direct phone number in respect of the particular civil servant responsible for the communication in question. However, he rejected the suggestion that the publication of all names in the DESO Directory, especially the junior staff, necessarily helped reduce the risk of corruption particularly in view of the existence and effect of the Business Appointment Rules. 33. In answer to questions put to him by the Tribunal, Mr Wray gave a further explanation of the differing grades of civil servants in MoD. In brief, there are three management levels of senior civil servants below that of a Permanent Secretary, namely, management levels 1, 2 and 3. Mr Wray, and indeed the other DESO witness, Mr Millen, were members of this last class, i.e. level 3. A senior civil servant at level 1 (just below Permanent Secretary level) would typically be described as a director, while levels 2 and 3 would typically be called director general and director respectively. Below those three levels of civil servants, there are four further grades described as bands B, C, D and E respectively. Band B is further subdivided into yet two further levels, namely, B1 and B2, with the former being the more senior level. Band C would similarly be subdivided into C1 and C2, whilst band D would not be subdivided. Band E would also be split into E1 and E2. Mr Wray described those occupying E2 as the “most junior of the non- industrial civil servants”. 34. He also explained that with regard to civil servants not only occupying the post of director, but also all levels below that, hospitality books were maintained in which offers of hospitality were recorded and required to be audited every year. This was to provide due protection against any risk of corruption and in particular to reveal whether any improper contacts had been established.

	11



	Appeal Number: EA/2006/0027 39. In addition, Mr Millen pointed to the inherent risks to which all those based in Saudi Arabia were subject principally based on security concerns in that country. The Saudi Arabian staff were it seems, and still are, based in secure compounds. 40. Mr Millen was asked about a certain page on the Directory which prompted the question why the identity of all those whose names appeared on that page and who were, with one exception, members of the level 3 class of senior civil servant or higher or who were military officers of equivalent rank) should not have their names disclosed. He confirmed that despite the redaction of some of the names in question, at one time or another during those persons’ terms of office, such persons would have undertaken some activity which involved their identity entering the public domain, albeit not to a wide public. He did not, however, appear to accept that even persons who occupied levels C and D might well have “significant responsibilities” to the extent that they would maintain contacts on behalf of DESO with outsiders, though their names had been redacted in the copy of the Directory supplied. The Tribunal is aware, however, that a distinction needs to be drawn between such “industry-facing” members of staff and those who are in effect “public-facing”, ie staff likely to appear before Parliamentary Committees or give lectures etc and that the former would probably clearly outnumber the latter. 41. With regard to the January 2005 edition, he confirmed that it was distributed at the DESO Symposium for that year, being the first occasion that such a distribution had taken place at the venue in question. He added that he was not sure that any of the specialist journalists referred to in his witness statement who had received copies of the Directory were, to his knowledge, told of the limited use to which the publication was in principle subject. 42. He added that no record was kept as to how many directories were taken away. He admitted however that with regard to a possible 2007 edition, thought was presently being devoted to a system of distribution which was no longer dependent upon prior request, but was to be done on the basis of a fresh request and by registering an interest. He also admitted that at other trade events, e.g. Farnborough, no real examination was made into the true identity of the person who might make a request for a copy of the Directory. In such circumstances, a request would be made of the person manning the DESO stand who would generally, though not invariably, be an individual occupying a C or D level grade. He also confirmed that copies of the 2004 Directory were given to staff at hotels where overseas visitors having business with DESO would stay to facilitate the making of those arrangements. 43. In answer to further questions put to him by the Tribunal, and with regard to the possible 2007 Directory, Mr Millen stated that DESO currently planned to exclude nearly all London staff who were part of what he called the Saudi Project, but for the moment, only those staff occupying senior grades had been the subject of non-redaction.

	13



	Appeal Number: EA/2006/0027 Evidence: Superintendent Pearl 44. The Tribunal also heard from Superintendent Stephen Pearl who is head of the National Extremism Tactical Co-ordination Unit (NETCU). In his written statement Superintendent Pearl describes NETCU’s remit as dealing with “UK single-issue domestic extremism” particularly with “the threat and consequences of Animal Rights Extremism (ARE)”. He described ARE’s tactics as creating a “climate of fear”. He stopped short of attributing the same tactics to CAAT. However, in his witness statement he also states that the various protest groups including CAAT “have been and are starting to adopt a number of [ARE’s] strategies and tactics” referring to incidents in 2005 against the employees of an arms manufacturer involving in this respect the targeting of home addresses. 45. Superintendent Pearl was cross-examined by Counsel both for the Commissioner and for Mr Evans. It is perhaps fair to say that as distinct from the content of his witness statement referred to above, his oral evidence went no further than saying that there was a risk (if not, some evidence to suggest) that members of CAAT might be engaged in tactics similar to those waged by ARE. He stated that some individuals engaged in ARE – related activities were present at other protests, eg the G8 summit in Scotland where individuals involved in anti-arms trade protest were also present. In addition there was a further discrepancy between the content of Superintendent Pearl’s witness statement and his oral evidence in relation to the risks he felt were present with regard to the harassment of DESO employees: in his witness statement he attributed the risks in particular to those individuals who had “unusual names” whereas he stated in evidence that “all name combinations” could now face the same risks given the sophistication of electronic searches and other tracking or tracing mechanisms. 46. He was also asked by the Tribunal what his view was regarding the relatively wide dissemination of the 2004 Directory. In particular he was asked whether as far as that Directory was concerned, it could be said that the “cat was out of the bag”, and he admitted to some extent that it was. Evidence: Ann Feltham and Mr Leigh 47. Mr Evans tendered two witnesses, a Miss Ann Feltham on behalf of CAAT and a fellow journalist on The Guardian, David Leigh. Both were cross examined at length. Miss Feltham has been employed by CAAT since 1985 and is currently Parliamentary Co-ordinator. In her witness statement she confirms that CAAT has about 15,000 supporters, there being no formal membership. She claimed that CAAT supporters did not indulge in violent protest or similar acts and were not liable to use intimidatory or threatening behaviour of the kind attributed by Superintendent Pearl to the activities of ARE. CAAT itself was expressly committed to non-violent protest which usually took the form

	14



	Appeal Number: EA/2006/0027 (5) disclosure would make DESO staff more accessible to the public through the medium of individual contact details. 54. Following the Commissioner’s decision the MoD had contended that disclosure of the Directory in full would damage DESO’s ability to function and would not help any accountability or any greater public understanding. 55. From what has been set out above with regard to the evidence which has been heard by the Tribunal, a number of general observations can usefully be made at this stage. First, there can be no serious doubt that there is a strong public concern if not some controversy about the arms industry and in particular about the movement of personnel between that industry and Government. It is enough to point to the continuing present public debate over allegations regarding the payment of bribes by or on behalf of BAe in favour of Saudi Arabian officials, a matter which was referred to in evidence before the Tribunal. 56. Secondly, the Tribunal has little doubt that in practical terms the Directory, ie the 2004 edition was very widely disseminated without any real form of restriction, in the sense that any person (including possibly members of foreign intelligence services) who had a serious intent to obtain a copy could easily have done so and most probably did in fact do so. 57. Thirdly, the Tribunal accepts the Commissioner’s contention that again on a practical level the names of many of DESO’s personnel who occupy the rank of Senior Civil Servants in the 2004 Directory are already sufficiently in the public domain given the fact that they are listed in other related Civil Service and military year books and similar listings. The Tribunal wishes to stress, however, that it does not regard information as being in the public domain merely because it was inadvertently put on a website for a short period: rather the Tribunal takes into account all the evidence regarding dissemination of the Directory referred to during the Appeal. 58. Finally, the Tribunal is not persuaded by the evidence it has heard that there is a substantial risk of violent or disproportionate protest at the moment against individual DESO staff members or personnel either at work or at home or to their families whether here or abroad. Clearly the question of security considerations affecting Saudi Arabian based staff involves somewhat different considerations given the political climate in that country. However, the Tribunal is equally open to the suggestion that no one can properly foresee the occurrence of a particular form of protest and there must be a risk, no matter how small, of there one day being the targeting of DESO staff in a way which was in general terms addressed by Superintendent Pearl. However, the fact remains that there is no evidence that that type of occurrence has occurred as yet, or is likely to do so in the foreseeable future.

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	Appeal Number: EA/2006/0027 59. The MoD advanced nine grounds of appeal with regard to the Commissioner’s Decision Notice in the context of section 36. 60. The first relies on the contention that civil servants as distinct from Ministers are not accountable to the public. The Tribunal accepts that as a matter of strict constitutional principle that concept is undoubtedly correct. Reliance was placed on a section in one of this Tribunal’s own judgments, namely DfES v Information Commissioner and the Evening Standard (EA/2006/006) at paragraph 84. However, the Tribunal there noted that such a principle did not, of itself, represent “an argument for withholding the names of Civil Servants but the wider impact point may require consideration in some cases”. This Tribunal respectfully agrees. Questions of competing public interests raise issues which of necessity go beyond pure considerations of constitutional accountability. Those persons who expend public money must in general terms be expected to stand up and account for the activities they carry out in so doing, see eg Corporation Officer of the House of Commons v Information Commissioner and Norman Baker MP (EA/2005/0015 and 0016) particularly at paragraphs 77 and 78. 61. Reference was made in argument to the Nolan Committee’s seven principles of public life which state in relevant part that: “Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.” 62. It is specifically stipulated that for those purposes “public office” should include “Civil Servants and advisers”. Although the Tribunal would accept that the degree of scrutiny may vary according to the nature of the office held, there is certainly no immutable principle that civil servants should never be held accountable in the way contended for. Reliance was also placed on the applicable Business Appointment Rules. The Tribunal examined the relevant annual reports in respect of the Rules but feels that the effect of the Rules is in practice limited to the tracking of the careers only of those in a senior Civil Servant position as distinct from those who might occupy more junior grades. 63. The second ground advanced by the MoD was that the disputed information in the Appeal did not raise any matters which could properly be said to be the subject of any accountability. In the Tribunal’s view there are at least 2 answers to this argument. First accountability is a general concept which may fasten on to the duty of a particular civil servant or as here upon the actions of a department, or even a wider constituency, such as the Government itself. What is here being sought is information which happens to consist of individual names and contact details. The latter can be just as much the subject of accountability in the wider sense of that term as the recounting of a specific policy carried out by an individual Civil Servant. Secondly, the notion of accountability even in its widest sense is no more than an element to be taken into account in striking the required balance

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	Appeal Number: EA/2006/0027 between the competing public interests for the purposes of FOIA and with regard to a section such as section 36. 64. The Tribunal agrees with a key element in Mr Leigh’s evidence summarised above. Anyone with an interest in the activities of DESO would unquestionably be assisted by being provided with a copy of the Directory in largely unredacted form. There is an issue as to the degree of redaction and that will be referred to below. As a general principle, however, the second contention of the MoD is rejected by the Tribunal. 65. Thirdly, it was argued that the Commissioner’s order could not be sustained by the Decision Notice. As indicated above, the Tribunal is in no way bound by the content of the Commissioner’s Decision Notice and its reasoning. At the root of the MoD’s case with regard to this ground is its concern that a line necessarily had to be drawn between some DESO staff who might occupy senior positions and/or those who held “public-facing” roles (as distinct from “industry-facing” roles) as against those who might not enjoy either of those responsibilities or functions. 66. Based on the evidence which this Tribunal has heard and as will be explained further below, insofar as the MoD is advancing a general proposition the Tribunal would agree. A line clearly has to be drawn somewhere both with regard to the identity of those in the Directory as well as with regard to the extent to which the relevant contact details of all members irrespective of seniority should be disclosed. 67. The MoD’s fourth argument was to the effect that disclosure would not improve public understanding of the MoD’s actions and those of DESO in particular. For this purpose reliance was placed on information as to the activities of the MoD already present on its website and the fact that disclosure of the Directory would say nothing about the underlying concerns which have been referred to above, namely the state of the relationship between the arms industry and Government. Reliance was also placed on the internal measures dealing with disciplinary matters referred to in particular by Mr Wray including but not limited to the Business Appointment Rules. 68. The Tribunal respectfully disagrees with this contention. As noted above, it is almost undeniable that disclosure of the appropriate names at least would facilitate enquiries into tracking the movements of those who moved from DESO to the arms industry or vice versa; moreover were there to be any enquiry into possible wrongdoing there could equally be little, if any, doubt that disclosure of all relevant names would facilitate proper enquiry being conducted by or on behalf of the public into such activities. Mr Leigh clearly indicated that there were other concerns which would be eased if some additional degree of disclosure were applicable. Moreover, the Directory has already undergone a wide degree of circulation.

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	Appeal Number: EA/2006/0027 Insofar as not touched upon already in this judgment, the Tribunal has carefully considered each of those potential risks but has come to the clear conclusion that in each case the risk of the prejudice identified is not so high as to justify maintenance of the relevant exemption in favour of non disclosure when weighed against the public interest in favour of disclosure particularly in the light of two matters which have already been referred to, namely the strong public interest in understanding the way in which the arms industry is run and the fact that the list has already been put into wide circulation. 73. With particular regard to the evidence regarding possible protest (see sub paragraphs (1) and (4) above), although the Tribunal is prepared to accept that the risk of personal harassment whether electronically created or otherwise does constitute prejudice, the likelihood at the moment is not so significant when weighed against all the other elements presented before it in evidence on the Appeal. The Tribunal is impressed by the argument put on behalf of Mr Evans that it should disregard any disruption to the internal workings of DESO which would or would be likely to be caused by disclosure except where such disruption would be so great as to have some appreciable impact on DESO’s ability to meet its wider objectives or purposes. That purpose has been already sufficiently highlighted, namely the implementation of the Government’s policy of supporting UK based companies to win contracts for the export of defence arms and services. Misdirected enquiries from the public cannot in any way, in the Tribunal’s view, be regarded as impinging upon the proper ability of DESO to function in accordance with its mandate. Campaigners who are against the arms trade, whether taking action electronically or by means of abusive letters or even personal harassment have not, according to the observations made above, been shown to have conducted an intense campaign along those lines hitherto. Naturally, the Tribunal accepts that the risk is ever present. On the other hand the Tribunal is not convinced that the evidence so far given regarding the severity, extent and frequency of any disruption to DESO’s ability to perform its functions is anything but “extremely limited” in the words of the written submissions submitted on behalf of Mr Evans. The Tribunal fully appreciates that criminal acts under cover of darkness to a person’s property represent grave threats by any standards but Superintendent Pearl admitted that any “hard core” perpetrating such activities represented a very small group of people. The Tribunal feels that to restrict publication of all but a few names in the Directory would be an over-reaction: the severity, extent and frequency of such attacks are, therefore, viewed as low on the evidence that the Tribunal has heard. The Tribunal also agrees with the Additional Party that disclosure even on a limited scale, would considerably help to deter corruption, aid public reassurance as to whether any impropriety was taking place and would generally encourage and aid further relevant enquiries should they be required. The Tribunal therefore agrees that the public interest in maintaining the section 36 exception is heavily outweighed by the public interest in disclosure.

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	Appeal Number: EA/2006/0027 Arabia was normally 3 years and believes that in all the circumstances the existing safeguards are sufficient for the purposes of striking the balance which is required within the context of Section 38. Section 40 78. If a person makes a FOIA request for personal data, as the latter term is defined by the Data Protection Act 1998, and disclosure would infringe a data protection principle as specified by that Act then there is an absolute exemption against disclosure. No question of balancing competing public interests arises even in relation to the applicability of the data principle which is in play. The first of the eight data protection principles set out in Part 1 of Schedule 1 has already been outlined and consists of personal data which is to be processed “fairly and lawfully” provided one of the conditions in Schedule 2 is met. The only potentially relevant condition is that set out in paragraph 6(1) of Schedule 2 which provides that: “The processing is necessary for the purpose of legitimate interest pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.” 79. There is no doubt that the data in question in this appeal constitutes personal data. However, the Tribunal agrees with the Commissioner and with the submissions made on behalf of Mr Evans that the data here pertains to the public lives and activities of the data subjects and not to their private lives. See generally Corporate Office of House of Commons v Information Commissioner and Norman Baker MP supra especially at paragraph 78. The expectation of the DESO staff with regard to their professional lives cannot equate with the expectations they might have as regards their private lives although for almost all staff their names could be linked to their homes or to aspects of their lives outside work and indeed there may be some overlap in any given case. On the other hand the Tribunal recognises that even in the case of civil servants who might otherwise be expected to lose some degree of anonymity on taking up such employment, total loss of anonymity should not be considered without good reason. This view is subject to the effect of the wide dissemination of the Directory to date within the defence industry as well as to the publication of some names of DESO staff on the pages of The Guardian without apparent adverse effect. Moreover, paragraph 6(1) will only be satisfied where the legitimate interests of the public outweigh or are greater than the prejudice as to the rights, freedoms and legitimate interests of the data subjects which will arise if the information is disclosed. The public interest in disclosure has already been referred to above. Any prejudice to the rights, freedoms or legitimate interests of DESO staff which might occur through disclosure of the Directory could only be minimal, if only because the data sought is effectively only professionally related and must be viewed subject to the wide dissemination of the Directory to

	23



	Appeal Number: EA/2006/0027 (iv) all those appearing in Dods Companion and/or the Civil Service Year Book, again even if below B2 level; (v) all those who are likely in general terms to give evidence before a parliamentary select committee or before the public accounts committee; and (vi) insofar as not covered by (i) to (v) above those who occupy and administer managerial positions and functions. The Tribunal feels that this approach reflects the same form of realism which finds expression in Secretary of State for Work and Pensions v Information Commissioner (EA/2006/0040) especially at paragraphs 92 and 93. The Tribunal notes although that DESO is not itself an Executive Agency (even though the DSA, which in 2004 was part of the DESO, is such an Agency) it is, therefore, subject to an organisational structure which differs in make up from that which might obtain in an orthodox Government department. The intent of the qualifications listed above is to reflect this feature of DESO’s structure. The Tribunal also feels that placing the “bar” at the B2 level would allow the public and/or the media to contact persons who generally speaking might be seen to be potentially somewhat more susceptible to adverse influences than those occupying a more junior level. 83. Mr Crow QC on behalf of the MoD informed the Tribunal that 44 individuals occupied Grades B1 and B2 within DESO. In particular the Tribunal feels that placing the bar at the suggested level would be reasonably consistent with the deployment of public servants in other comparable departments. For example, Superintendent Pearl referred to the Police Almanac and the Tribunal is aware that local authority officers of a senior level are in general terms accountable to local authority committees. 84. The Tribunal is not satisfied with Mr Wray’s suggestion that the bar should be set at senior civil servant level and no lower. In setting the bar at the level suggested, the overall aim of the Tribunal has been to ensure that junior staff otherwise more vulnerable than their senior colleagues be protected. 85. The Tribunal entirely appreciates that many staff even at D level Grades might well be occupying so called industry-facing roles both by their possible attendance at trade exhibitions and the like and by virtue of their official responsibilities. Overall, however, the Tribunal feels that the arguments against disclosure in such cases resonate more strongly than in the case of more senior staff. 86. It follows the Tribunal rejects Mr Evans’ call that all names be published. The Tribunal emphasises that it is not setting any binding precedent: it is of necessity having to address the specific terms in the 2004 Directory. Nor is the formula the Tribunal now suggests appropriate so as to be treated as in some way transmissible to or

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	Appeal Number: EA/2006/0027 operable within the setting of any other Government Department, even the MoD itself outside the confines of DESO. The “mix” within DESO is unique: there is an amalgam of staff drawn from the forces, the arms industry and the MoD itself. No real parallel can be drawn, especially when it comes to the movement of personnel between the arms industry and DESO, with the transfer or movement of staff between other Government Departments or between such departments and the outside world. In particular the Tribunal sees no resultant useful analogy between DESO and the manner in which a private company informs the shareholders of the identity and personal characteristics of its employed staff, if nothing else since a private company is by definition not a public authority and is subject to a completely different set of statutory regimes. 87. The Tribunal is sensitive to the fact that DESO did not consider placing any form of security marking on the Directory until reasonably early in 2005. This clearly constitutes some evidence that overall there is now a heightened sensitivity to electronic interference of some sort to the activities of DESO. Moreover, the placing of a bar at the level suggested by the Tribunal seeks to strike a suitable balance between the types of risk as to which it has heard evidence and as to the likelihood of such risks occurring. The fact that the 2005 Directory has borne a description dealing with its confidentiality does not mean that an all-or-nothing disclosure exercise should be carried out. 88. The Tribunal is not minded, however, to sanction the disclosure of all telephone and email contact details, save for those contact details which appear in the Civil Service Year Book and similar publications. If there is a public interest inherent in the public’s ability to contact anyone, even those above B2 level directly by email, the same is outweighed first by the risk of increasing, if not undue, interference in the carrying out of those individuals’ responsibilities. As indicated above it was argued on the Appeal that the means of electronically disrupting business are continuously evolving and becoming more sophisticated and that the MoD, for example, is becoming or might become increasingly unable to counter such increasingly sophisticated techniques. Overall, however, the Tribunal sees no strong arguments militating in favour of disclosure of telephone and email contact details, save as indicated above. The Tribunal does appreciate that no doubt as a matter of course email contact addresses will go out on correspondence emanating from DESO but then that does not in the Tribunal’s view constitute a very strong pointer in favour of disclosure of blocks of email addresses as in the Directory. 89. In particular, countervailing risks such as the speed of disruption, the fact that there is likely to be continuous interruption and the risk of inadvertent loss or leakage of information constitute in the Tribunal’s view substantial factors militating against disclosure of such details. The sophistication of electronic intrusion grows daily and the more that

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	Appeal Number: EA/2006/0027 can be done to restrict access to email details, perhaps the better, in circumstances such as these. 90. The Tribunal was sufficiently impressed by evidence provided during and after the appeal by the MoD as to its switchboard’s response rates and figures. These show that access to DESO is largely guaranteed by the existing system in a way which meets the demands of the public on the one hand and the needs of DESO to conduct its business internally, efficiently and effectively on the other. 91. With respect to staff based in Saudi Arabia, the Tribunal is not persuaded that the risks attendant upon the release of names as distinct from telephone and email details are in any way substantially different to the risks attendant upon staff elsewhere. In his witness statement Mr Millen suggests that Saudi staff names may not be published in future but this is a matter for the MoD and not for the Tribunal. Neither is the Tribunal persuaded that London-based staff working on the so called Saudi Project require any additional protection other than those which would be provided by the Tribunal’s reformulation of the Commissioner’s Decision Notice.

	Conclusion 92. For all these reasons the Tribunal dismisses the appeal but substitutes the Decision Notice in the terms set out at the beginning of this Judgment.

	David Marks Deputy Chairman Date 20 July 2007

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United Kingdom Information Tribunal including the National Security Appeals Panel