Derek Moss v Information Commissioner

Hearing date: 18 th March 2020

Approved Judgment

INTRODUCTION

This case concerns the principle of open justice and the application of orthodox principles to an application by a litigant for an anonymity order, namely, the balancing exercise between an individual's Article 8 and 6 rights of the European Convention on Human Rights (“ECHR”) and the Article 10 and 6 ECHR rights of the press and public.

The Appellant, Derek Moss, appeals against the decision of UTJ Wikeley, dated 21 ^st December 2018, sitting in the Upper Tribunal (Administrative Appeals Chamber), which upheld a First-tier Tribunal (“FTT”) interlocutory decision of 21 ^st December 2017 to deny the Appellant an anonymity order. The substantive FTT appeal arose from the Appellant's challenge to a Decision Notice of the Information Commissioner (“the Respondent”) which upheld a decision of the PSB3 in relation to sections 1 and 40(2) of the Freedom of Information Act 2000 (“FOIA 2000”).

BACKGROUND

The Appellant has engaged in serial litigation about his privacy for several years. He asserts that he is a disabled man who suffers from physical and mental health conditions. He has hitherto obtained anonymity orders in proceedings in the High Court and Court of Appeal.

He has involved no less than three public sector bodies in the lead up to the present case. In or around 2015, the Appellant tried to bring judicial review proceedings against the first public sector body (“PSB1”) but failed to obtain legal aid. He subsequently brought a related judicial review claim against a second public sector body (“PSB2”). Although both claims were unsuccessful, the High Court and this Court granted him anonymity in the latter.

The Appellant then applied to a third public sector body (“PSB3”) to take action against PSB2, and raised questions whether PSB2 had complied with duties under the Equality Act 2010. PSB3 refused the application. The Appellant then made a Freedom of Information request to PSB3. PSB3 disclosed some information in response but, materially for present purposes, applied the exemption at sections 1 and 40(2) of FOIA 2000: that it did not hold the requested information to the request and/or it was personal information.

On 13 ^th January 2017, the Appellant complained to the Respondent about PSB3's handling of the request. After an investigation, on 26 ^th September 2017 the Respondent issued a Decision Notice which upheld PSB3's reliance on sections 1 and 40(2)FOIA 2000 the (“Decision Notice”).

FTT appeal and interlocutory decision

On 23 ^rd October 2017, the Appellant appealed the Decision Notice to the FTT. In summary, the grounds of appeal were that the Respondent:

(1) failed to properly investigate the complaint;

(2) wrongly accepted PSB3's understanding of a statutory provisions within the Equality Act 2010;

(3) should have ordered the disclosure of the names of PSB3's employees;

(4) ignored most of the Appellant's arguments in part 2 of his complaint; and

(5) breached the Appellant's Article 6(1)ECHR rights to a fair hearing, as had PSB3.

On 24 ^th October 2017, the Appellant made an interlocutory application to the FTT requesting anonymity to protect his medical confidentiality, and that the file in the proceedings be sealed.

On 1 ^st December 2017, Judge McKenna refused the application for anonymity because:

(1) the Tribunal was able to determine the relevant issue, namely whether the Commissioner correctly applied sections 1 and 40(2) of FOIA 2000, without considering the Appellant's personal data;

(2) the criteria for anonymisation were not met; and

(3) there was no reason for the documents sent by the Appellant to be included in a bundle at that stage.

On 17 ^th December 2017, the Appellant renewed his application. In an “application for directions” he requested the Tribunal to: (1) grant anonymity; (2) hold any hearings in camera; (3) seal the file; (4) withdraw Judge McKenna's Order from the public record and re-issue it with redactions. The Appellant also objected to the exclusion of documents from the bundle, but did not formally request that the Tribunal reconsider that finding.

On 21 ^st December 2017, Judge McKenna reconsidered the matter but again refused the application. The Judge also:

(1) granted permission to appeal her interlocutory ruling refusing anonymity to the Upper Tribunal due to the “growing number of requests for anonymisation” in the FTT which would benefit from the “guidance of the Upper Tribunal on the principles to be applied”; and

(2) stayed the substantive FTT appeal pending the Upper Tribunal appeal.

Upper Tribunal decision on appeal in the present case

On 19 ^th February 2018, the Appellant issued a Notice of Appeal in the Upper Tribunal which raised four grounds of appeal:

(1) unfairness resulting from a mistake of material fact, namely the conclusion that his personal information did not need to be disclosed as part of the FTT appeal;

(2) the refusal of anonymity breached the Appellant's Article 6(1) right to a fair trial;

(3) the decision breached the Appellant's Article 8 privacy rights; and

(4) the Judge failed to give adequate reasons.

The Appellant also requested anonymity and similar directions within the UT appeal itself. The Appellant did not make any further application for permission to appeal on grounds beyond that which he had been granted permission by the FTT.

On 5 ^th December 2018, an oral hearing was held before UTJ Wikeley, and on 21 ^st December 2018, the Upper Tribunal in D v Information Commissioner[2018] UKUT 441 (AAC) dismissed the Appellant's appeal, finding no error of law within the FTT decision. In relation to that decision, the following findings by the Upper Tribunal were important:

(1) Although the Appellant's Article 8 rights were engaged [38], the weight to be attached to those privacy rights is limited and “on the facts … the principle of open justice prevails” [40]. The UTJ cited Lord Sumption at [14] in Khuja v Times Newspapers Ltd[2019] AC 161 (SC), “necessity remains the touchstone of this jurisdiction” [40]

(2) The FTT correctly concluded that there was no need to introduce medical evidence, as it was difficult to see how the Appellant's medical conditions in themselves could show that the Decision Notice “was not in accordance with the law” [38].

(3) In regards to necessity:

a. The Appellant argued that without an anonymity ruling he is at risk of being identified as the litigant in previous proceedings in the High Court and Court of Appeal [41]. However, in the view of the UTJ, the “risk of jigsaw identification” was “less than negligible” [42].

b. The Appellant also argued that he would be forced to abandon the case without anonymisation, but this was unpersuasive for two reasons, aside from the Respondent's submission that there was no hard evidence of such a harmful potential outcome. First, there was no appreciable risk of a breach to his privacy. Second, that argument seeks a subjective, as opposed to objective, understanding of open justice which is rejected by the case law [44].

(4) The FTT that eventually determines the substantive appeal can write its decision in a way to minimise the remote risk of any interference with the Appellant's privacy rights [45].

(5) The Article 6(1) argument fared no better for two reasons. First, there are strong competing Article 6(1) rights, namely the wider interests of public confidence in the administration of justice. Second, the Appellant's Article 6(1) arguments “essentially stand or fall with those put under Article 8” [46].

(6) It is true that FTTJ McKenna's decision was not as reasoned out as fully as it could have been, but it did not need to be, and the decision was “more than sufficient to show that the Tribunal had not misdirected itself in law” [47].

On 1 ^st February 2019, the Appellant applied to the Upper Tribunal for permission to appeal that decision. On 12 ^th February 2019, the Upper Tribunal granted the Appellant permission to appeal to this Court on a point of law on the basis that it “would be helpful for all concerned to have the question of a proper basis for anonymity rulings authoritatively resolved”. The Upper Tribunal further recorded that in its view there were “no grounds for setting aside the Upper Tribunal's decision for procedural reasons or for reviewing the decision”.

Current proceedings

On 14 ^th March 2019, the Appellant lodged the Appellant's Notice with this Court. On 24 ^th May 2019, Singh LJ ordered that: the Appellant be granted anonymity pro tem; and the determination of whether the hearing should be held in private be adjourned to be considered by the full Court.

On 18 ^th October 2019, Davis LJ granted an adjournment which was requested by the Appellant due to parting company with his solicitors.

Since then, the Appellant acquired fresh pro-bono representation but, shortly before the hearing, parted with his counsel again. He thus appeared before this Court as a litigant in person. His request to make his submissions remotely by audio-link was granted....