Challenge to the GCHQ’s refusal to disclose information about its operations and the Five Eyes Agreement

Privacy International and the United Kingdom (Submission of the Applicant to Accompany Their Application Form filed Sept. 8, 2014)   

Privacy International appealed to the ECHR on the ground that its right to freedom of expression including freedom to receive information, under Article 10 of the European Convention on Human Rights (“the Convention”), was violated when the GCHQ refused the request for information about its operations that it made under the UK Freedom of Information Act 2000 (“FOIA”) on March 4, 2014. In particular, Privacy International sought documents and instruments comprising the Five Eyes Agreement between the US, UK, Canada, Australia and New Zealand. Although the US and UK had declassified the original post-World War II agreement in 2010, Privacy International sought subsequent documents and instruments on the ground that “[t]he modern alliance is grounded in and sustained by an unknown number of bilateral and multilateral instruments, agreements, memoranda of understanding and contracts which stipulate in detail the objectives, modes, means, and confines of signals intelligence gathering by the five countries, which documents and instruments are collectively referred to as the Five Eyes Agreement.” Submission of the Applicant to the ECHR, para. 15.

In refusing Privacy International’s request on the same day that it was made, the GCHQ relied on its exemption, under Section 84 of FOIA, from any obligation to disclose information. Privacy International alleged before the ECHR that no other UK government agency would have provided it with the information it sought about the GCHQ or the Five Eyes Agreement, as “FOIA precludes any government authority from disclosing information if it was directly or indirectly supplied by GCHQ….” Submission, para. 11.

According to Privacy International, its right to freedom to receive information under Article 10 of the Convention was violated in that the UK’s “legislative scheme made no provision for the disclosure” of the information it sought. In addition,”[t]here was no consideration by GCHQ as to whether the refusal [to provide any of the information that Privacy International sought] was necessary in a democratic society.” Submission, para.21.

Privacy International contends that since “GCHQ is excluded from the FOIA scheme,” the UK government also contravened its obligation, under Article 13 of the Convention, to provide an effective remedy for violations of Convention rights. Submission, para. 38.

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