Dr Michael Smith v The Information Commissioner

IN THE UPPER TRIBUNAL Appeal No. UA-2021-002107-GIA

ADMINISTRATIVE APPEALS CHAMBER

Appellant: Dr Michael Smith

First Respondent: The Information Commissioner

DECISION OF UPPER TRIBUNAL JUDGE MACMILLAN

Decision Date: 15 September 2022

Decided following an oral hearing by CVP on 27 July 2022

Representation:

Appellant: Dr Michael Smith represented himself

Respondent: Mr Michael White represented the Information Commissioner

Authorities considered:

Information Commissioner v Malnick[2018] UKUT 72 (AAC)

Montague v Information Commissioner and the Department for International Trade[2022] UKUT 104 (AAC

ON APPEAL FROM:

Tribunal: First-tier Tribunal (General Regulatory Chamber) Information Rights

Tribunal Case No: EA/2019/0374

Hearing Date: 12 February 2021 (remote via CVP)

Decision Date: 17 March 2021

DECISION

The decision of the Upper Tribunal is to dismiss the appeal.

REASONS FOR DECISION

Introduction

1. This appeal concerns a decision notice issued by the Information Commissioner (‘the Commissioner’) in relation to information requests made under s.1 of the Freedom of Information Act 2000 (‘FOIA’) to the Information Commissioner’s Office as a public authority (‘the ICO’).

2. The Appellant is a data controller. In May 2018 he wrote to the ICO about changes to the ICO’s practices following the introduction of the Data Protection Act 2018 and of the GDPR into domestic law. Correspondence continued over several months, in the course of which the Appellant made repeated requests for information under s.1 FOIA (‘FOIA requests’). These were made in June, July and August 2018 and in January 2019.

3. In November 2018 the Appellant complained to the Commissioner about the ICO’s failure to respond to some of his FOIA requests and the adequacy of the response to others. The Commissioner upheld the Appellant’s complaint.

The Information Commissioner’s Decision Notice

4. In a decision notice dated 11 September 2019, the Commissioner decided that the ICO had breached its obligations under Part I FOIA to:

   1. respond to the Appellant’s requests within 20 working days;

   2. clarify the nature of the information being sought; and

   3. confirm or deny what of the requested information the ICO held.

5. As a consequence, and pursuant to s.50(4), the Commissioner required the ICO to take specified steps in order to respond to the Appellant’s FOIA requests in accordance with Part 1 FOIA. The decision notice required the ICO to respond to the outstanding FOIA requests listed in an appendix within 35 working days.

The First-tier Tribunal’s Decision

6. The Appellant appealed to the First-tier Tribunal (‘FTT’) under s. 57 FOIA. His grounds, in broad terms, were that the decision notice was defective because it did not contain all of his outstanding FOIA requests, nor all of the FOIA requests he had brought to the Commissioner’s attention in his s.50 complaint. The Commissioner subsequently conceded this point and also that, as a consequence, the decision notice was not in accordance with the law.

7. The Appellant initially relied upon 4 grounds of appeal before the FTT, relating to the deficiency of both the decision notice and its annex. The Commissioner conceded all substantial grounds. Separately, and during the course of the FTT proceedings, the ICO sent the Appellant what it considered to be the substantive response to all of his FOIA requests, including those that had been erroneously omitted from the 11 September 2019 decision notice.

8. The Appellant declined a proposal from the Commissioner to dispose of his appeal by way of a Consent Order¹ which, according to the FTT’s decision, ‘would have allowed the Appellant’s appeal and recorded that the ICO, having issued a substantive response to the Appellant’s requests, was not required to take further steps’.This was because, in the Appellant’s view, the ICO had provided inadequate substantive responses to the FOIA requests that had been omitted from the decision notice.

9. The Appellant argued that the FTT has jurisdiction to consider responses by the public authority that post-date the decision notice under appeal. He relied on the language of s.58 FOIA, read in conjunction with various Upper Tribunal decisions, in particular paragraph 102 of Information Commissioner v Malnick[2018] UKUT 72 (AAC) in which a three-judge panel, following the Court of Appeal’s decision in Birkett v Department for the Environment, Food and Rural Affairs[2011] EWCA Civ 1606, [2012] AACR 32, decided that:

‘…there is no limitation on the issues which the F-tT can address on appeal, and the focus of its task is the duty of the public authority’.

10. The Commissioner disagreed with the Appellant. His case, in essence, was that the FTT does not have jurisdiction to consider new issues that are different to the issues the Commissioner considered in the decision notice being appealed.

11. The FTT agreed with the Commissioner, having reviewed both the language of FOIA and a number of Upper Tribunal decisions to which the Appellant directed the tribunal. The FTT decided:

“[24] Unhindered by authority, it seems to the Tribunal that the wording of sections 57 and 58FOIA are clear about the extent of the Tribunal’s powers in an ‘appeal to the Tribunal against the notice’. It seems clear to us that if an issue was not one which could have been considered by the Commissioner in the decision notice then it is not one which can be appealed against to the Tribunal.

[25] Thus, in the context of this case, that would mean that the Appellant could appeal against the failure of the Commissioner to consider all the requests in the decision notice. But the Appellant could not appeal against the contents of the responses subsequently made to those additional requests, because that was simply not an issue that was or could have been before the Commissioner when she prepared the decision notice.

…

[39]… it seems to us that the Appellant has misinterpreted the caselaw to mean that there is literally ‘no limitation’ as to what the Tribunal can consider on appeal… He has not recognised that the role of the Tribunal is to stand in the shoes of the Commissioner to re-consider that decision actually made (and substitute a decision notice that could have been made), but not to make new decisions which were not considered by the Commissioner at all. The Appellant does not recognise that the appeal must be ‘against the notice’ issued by the Commissioner.

[40] As the Commissioner says, it is not possible to appeal against any decision by the Commissioner as to what information to disclose, because she has never made that decision; only the ICO has, in its capacity as a public body that is subject to FOIA. The Commissioner has not (yet) reviewed that decision of the ICO, and only after such a review (and such a decision under s.50(4) FOIA) would section 57 FOIA allow for an appeal.”

12. The FTT therefore determined, as a preliminary issue, that it had no jurisdiction to consider the Appellant’s complaint about the ICO’s later, substantive responses because the adequacy of these had not been before the Commissioner when the decision notice was issued.

13. The FTT allowed the Appellant’s appeal against the decision notice and issued a substituted decision notice that required the ICO provide the Appellant with a response to all of the FOIA requests that were outstanding at the date of the decision notice, including those that had been previously omitted. The FTT then found as a matter of fact that the ICO had already provided substantive responses. The FTT therefore determined that no further steps were required.

Grounds of appeal and subsequent events

14. The Appellant has been granted leave to appeal on the limited ground of whether it is an error of law to decide that the FTT has no jurisdiction in a s.57 FOIA appeal to consider the nature and content of the public authority’s responses to the Appellant which post-date the Commissioner’s decision notice.

15. Permission was granted following an oral hearing on 21 November 2021. When granting permission Upper Tribunal Judge Jones noted that there was potentially some ambiguity in the case law. Judge Jones’ observation, and the pleadings in this appeal, pre-date the decision of a three-judge panel in Montague v Information Commissioner and the Department for...