Privacy International v. United Kingdom (UK 5EY FOIA)

Name of case: Privacy International v. United Kingdom Court: European Court of Human Rights (ECtHR) Application no.: 60646/14 Closed

In September 2014, Privacy International filed an application to the European Court of Human Rights (ECtHR) challenging the UK Government's refusal to disclose records relating to a surveillance agreement governing the exchange of signals intelligence between the governments of the US, UK, Canada, Australia and New Zealand (“Five Eyes alliance”).

The origins of the Five Eyes alliance stretch back to World War II, but the relationships between the five countries are formalized in the United Kingdom-United States Communications Intelligence Agreement (“UKUSA Agreement”), first signed in 1946. Pursuant to the UKUSA Agreement, the Five Eyes countries agree to exchange by default all signals intelligence they gather, as well as the methods and techniques related to signals intelligence operations.

A 1955 version of the Agreement is the most recent version to have been made public. Communications methods have changed dramatically since 1955, vastly increasing the opportunities for governments to acquire, store and/or analyse communications and data and to share that information with other governments. The nature of signals intelligence has also changed dramatically since 1955. As modern communications have evolved, intelligence agencies have developed more advanced ways to access, acquire, store, analyse and disseminate information.

Privacy International has sought for years to obtain information about the UKUSA Agreement and the rules governing the Five Eyes alliance via freedom of information (FOI) requests and other methods. In the UK, Privacy International made a FOIA request to Government Communications Headquarters ("GCHQ"), the signal intelligence agency, which benefits from a blanket exemption from the Freedom of Information Act 2000 ("FOIA 2000"). Contained in section 23 of the FOIA 2000, the exemption absolves GCHQ (amongst other agencies) from any obligation to disclose records relating to its activities.

Privacy International asserts that GCHQ's blanket exemption from responding to FOI requests violates the right to access to information under Article 10 of the European Convention of Human Rights.

The case was adjourned by the ECtHR indefinitely in November 2017, awaiting resolution of other cases. Following developments in UK (e.g. Kennedy v The Charity Commission [2014] UKSC 20; [2015] AC 455) and ECtHR (e.g. Times Newspapers Ltd & Kennedy v. the United Kingdom, no. 64367/14, 6 December 2018; Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, 8 November 2016) case law, the Court lifted the stay and requested the parties to make observations. PI and the UK government then agreed to settle the case, in light of recent case law developments. PI obtained the following admissions from the UK government:

1. it is open to PI to argue before the Investigatory Powers Tribunal ("IPT") that GCHQ has the power to disclose information sought through the FOIA 2000;
2. the UK Supreme Court's interpretation of the Article 10 right of access to information in Kennedy is obiter and can therefore be revisted in light of Magyar Helsinki;
3. a challenge to the IPT can be appealed to the UK Supreme Court;
4. in the circumstances of the case PI performed the functions of a public watchdog;
5. a decision of the IPT can be subject to a claim for judicial review or appeal to the Court of Appeal; and
6. information relating to intelligence warrants and intelligence sharing with foreign partners sought in this case was of public interest, albeit the UK government considers its disclosure would manifestly undermine national security.

The Court approved these settlement terms on 9 June 2022. This settlement is significant in that it opens the door to national challenges to blanket FOIA exemptions applied to certain government agencies.