Atole Timothy Enaholo v The Information Commissioner & Anor

The Appellant asked the Home Office for five categories of information concerning microwave radiation equipment designed with ‘through the wall’ sensor devices. The Home Office refused to confirm or deny whether it held information within the scope of the request, relying on section 24(2) (national security) of the Freedom of Information Act 2000 (‘FOIA’) and section 31(3) (law enforcement).

In its decision notice IC-279192-S5Z9 the Information Commissioner agreed that the Home Office was entitled to rely on section 24(2). The Commissioner did not assess whether the Home Office was entitled to rely on section 31(3). The Appellant appeals that decision notice pursuant to section 57(1) of FOIA.

On 5 September 2023 the Appellant made a request for information to the Home Office. The Appellant referred to a Home Office letter dated September 2003 which he said confirmed “that the UK possessed microwave equipment which can be used as intrusive surveillance” and that the use of microwave sensors by the police was authorised by the Home Office. He then requested that the Home Office:

On 25 September 2023 the Home Office responded. It refused to confirm or deny that it held the requested information. The Home Office relied on three exemptions under FOIA:

The Appellant applied for an internal review on 1 October 2023. The Home Office responded on 23 November 2023. It no longer relied on section 23(5) but maintained that sections 24(2) and 31(3) of FOIA applied.

On 23 December 2023 the Appellant complained to the Commissioner. On 13 May 2024 the Commissioner determined that the Home Office was entitled to rely on the neither confirm nor deny provisions of sections 24(2) and 31(3) in refusing the request.

This appeal was filed on 20 May 2024 and the Tribunal made various case management orders. The Appellant applied to the Upper Tribunal for permission to appeal the Tribunal’ decisions of 8 November 2024, 25 November 2024 and 10 February 2025 which refused his applications for a face-to-face hearing, a hybrid hearing and a paper bundle. The appeal to this Tribunal was stayed pending the determination of the application to the Upper Tribunal. On 26 June 2025 (decision issued 2 September 2025) the application for permission to appeal was struck out. On 26 September 2025 Judge Harris set directions for the final hearing.

On 9 October 2025 the Appellant applied to set those case management directions aside because on 24 September 2025 he had applied to the Upper Tribunal for reinstatement of his application for permission to appeal. Consequently Judge Harris stayed this appeal.

On 6 October 2025 the Upper Tribunal refused reinstatement of the application for permission to appeal. On 3 November 2025 Judge Harris lifted the stay of the proceedings in this Tribunal and set case management directions. She also refused the Appellant’s further application for a face-to-face hearing.

On the day of the hearing the Appellant did not attend. He had emailed the Tribunal on 2 December 2025 to say he was not attending the hearing for various reasons including “safety concerns and ongoing human rights violation (targeted harassment, torture) with microwave radiation devices with through the wall sensor” and “successive tribunal judges allocated to the case both at the lower and upper tribunal have been taking orders from the Home Office and hence they were all willing to pervert the course of justice (even before the appeal is heard) by preventing the Applicant and his witnesses from attending the appeal hearing in a safe court environment, despite evidence of injuries and organ damages presented to all the judges”.

The Tribunal decided to proceed with the hearing in the absence of the Appellant and the Commissioner pursuant to Rule 36. The Appellant was clearly aware of the hearing and did not wish to attend. In-person and hybrid hearings had already been refused and the Appellant’s applications for permission to appeal against those decisions were struck out. It was not in the interests of justice to adjourn.

The Commissioner indicated in his written submissions of that he did not propose to attend any oral hearing and was content to rely on the written submissions.

Section 1(1) of FOIA provides a person who requests information from a public authority with two rights. First, to be informed in writing whether the public authority holds information of the description requested, otherwise known as the duty to confirm or deny. Second, to have the information communicated to them.

The duty to confirm or deny is subject to certain exemptions. In this case the effect of the exemption is explained in section 2(1) of FOIA:

Section 24 states, so far as is relevant:

Section 31 states, so far as is relevant:

Neither section 24 nor section 31 are in the exhaustive list of absolute exemptions set out in section 2(3) FOIA and therefore the public interest test set out at section 2(1)(b) applies to both.

The Tribunal’s role is set out in section 58 FOIA. We must consider whether the Commissioner’s decision is in accordance with the law. If the notice involved an exercise of discretion by the Commissioner we must consider whether he ought to have exercised it differently. We may review any finding of fact made by the Commissioner.

Having regard to the above legal framework, the issues we need to consider are:

‘Required’ in this context means “reasonably necessary”: Foreign, Commonwealth and Development Office v IC & Williams [2021] UKUT 248 (AAC) (“FCDO”).

A great deal of material has been filed in relation to this appeal. Our task is not to determine, for example, whether the Appellant or any other person who has provided a witness statement has been subjected to torture. It is simply to determine whether the Home Office were entitled to rely on the relevant FOIA exemptions. Most of the documents in sections E and F of the bundle are irrelevant to the issues we need to decide.

One document we do need to address is the September 2003 letter from the Home Office. It is addressed to an organisation named Christians Against Mental Slavery. In his information request and in these proceedings the Appellant relies on the letter to show that the Home Office has already confirmed the existence and/or its use of microwave radiation devices, and therefore the exemption from the duty to confirm or deny is not required to safeguard national security.

We do not agree with the Appellant’s interpretation of the letter. The author responds to the recipient’s discussion of “intimidation through the overt use of thought influencing and monitoring technologies.” The author does give the example of sound waves being used in prolonged hostage situations to prevent sleep and concentration. That part of the letter does not mean that the Home Office was using sound wave technology. Even if we are wrong about that, the passage is about sound waves. The Appellant’s request was very specifically about microwave radiation. Sound waves are not the same thing as microwaves. We agree with Mr Lewin that the letter does not come close to a confirmation or denial that information about microwave sensor technology is held.

Mr Lewin submitted that the Home Office’s position will always be to neither confirm nor deny the existence of information concerning covert technologies, no matter how fanciful the technology. He argued that confirmation or denial that the Home Office holds information in scope of the Appellant’s request would provide information to the world at large about the UK’s covert law enforcement capabilities, including covert capabilities. This information could be used by criminals, terrorists and hostile state actors to modify their behaviour to the UK’s detriment. It was also submitted that the risk to national security goes further than that because of the potential for fragments of information forming a ‘mosaic’ that would be useful to bad actors.

We do not agree with Mr Lewin that it is appropriate for the Home Office to use a blanket approach. Each request must still be considered on its own facts and merits. This does not prevent consistent decision making, so long as the FOIA test is met in each individual case. In this case we agree that even a small piece of information in this grave context would damage national security for the reasons given by Mr Lewin. We agree that this is the case even where the existence or use of a particular technology may appear to be unlikely. Technology often advances at a rapid pace, and what may appear to the Tribunal to be an implausible technology may be more achievable than it seems. We therefore conclude that exemption from the duty to confirm or deny that the Home Office holds the information sought is required for the purposes of national security.

The public interest in maintaining the exclusion of the duty to confirm or deny is clear from the above principles. Confirming whether the information exists would provide information useful to criminals, terrorists or hostile states either directly or as part of a mosaic of information. National security is a matter of vital national importance. Even where the chance of a particular harm occurring is low, the seriousness of the consequences of the risk can nonetheless mean that the public interest in avoiding the risk is strong: FCDO.

The Appellant’s arguments in relation to the public interest are that the health, welfare and lives of himself and others are at risk of being targeted with this technology. However, the evidence does not demonstrate this. The Appellant has provided several medical documents for himself, and while these record him reporting his view that he is being targeted with the microwave radiation. At no point in any of the documents does any medical professional give him a diagnosis consistent with this.

There is a general public interest in transparency in the conduct of Government, particularly in the use of covert technologies. However, Parliament has provided a specific legislative framework to govern the lawful use of covert surveillance: the Regulation of Investigatory Powers Act. The Investigatory Powers Tribunal can consider complaints concerning alleged unlawful surveillance and provides separate judicial oversight. We agree with Mr Lewin that diminishes the public interest in disclosure through FOIA.

We therefore conclude that the public interest in maintaining the exclusion of the duty outweighs the public interest in disclosing whether the Home Office holds the information.

We agree with the Home Office submission that there is significant overlap between the two exemptions relied on. Covert surveillance used in the context of counter-terrorism and law enforcement would be useful both to those who threaten national security and to other criminals. It would allow criminals to evade detection or to interfere with evidence-gathering procedures. We also agree that the ‘mosaic’ effect concerns apply equally to section 31 as they do to section 24.

We therefore conclude that confirming or denying whether the Home Office held the information would prejudice or be likely to prejudice (i) the prevention and detection of crime and/or (ii) the apprehension or prosecution of offenders.

The public interest either in maintaining the exclusion of the duty or in disclosing whether the Home Office holds the information is similar to the considerations we have outlined in respect of section 24. The public interest in preventing and detecting crime, as well as apprehending or prosecuting offenders is not identical to the public interest in safeguarding national security but it is nonetheless a strong public interest. The Appellant has not identified any separate public interest concerns in respect of this section.

Though there is a general public interest in transparency we consider this is diminished by the Regulation of Investigatory Powers Act as set out above. We also observe that there is a separate disclosure regime in respect of criminal proceedings, so that those charged with offences may know the evidence against the. This reduces the public interest in disclosure under FOIA because there are safeguards for the rights of those under investigation for or charged with a criminal offence. This also serves the public interest because the resulting criminal trials are held in public.

We therefore conclude that the public interest in maintaining the exclusion of the duty outweighs the public interest in disclosing whether the Home Office holds the information.

Exemption from the duty to confirm or deny is required for the purposes of safeguarding national security.

Confirming or denying whether the Home Office held the information would prejudice or be likely to prejudice (i) the prevention and detection of crime and/or (ii) the apprehension or prosecution of offenders.

In both cases the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the Home Office holds the information.

The appeal is dismissed.