McInerney GIA 4267 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Jacobs |
| Judgment Date | 29 January 2015 |
| Neutral Citation | 2015 UKUT 47 AAC |
| Subject Matter | Information rights |
| Respondent | Information Commissioner and the Department of Education |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 4267 2014 |
| Appellant | McInerney |
[2015] AACR 32
(McInerney v Information Commissioner
[2015] UKUT 47 (AAC))
Judge Jacobs GIA/4267/2014
29 January 2015
Freedom of information – whether late reliance on sections 12 and 14 permissible – broad approach to “request” under section 14 FOIA
Ms McInerney applied to the Department for Education under the Freedom of Information Act 2000 (FOIA) for information about the applications it had received for permission to set up Free Schools. Initially the Department relied for its refusal on section 36(2)(c) of FOIA, which deals with prejudice to the effective conduct of public affairs, and confirmed its response following an internal review. Ms McInerney applied to the Information Commissioner who decided that the balance of the public interest favoured disclosure. The Department appealed to the First-tier Tribunal (F-tT) against that decision relying for the first time upon sections 12, 14 and 43. In its decision the F-tT referred to previous decisions of the Upper Tribunal (UT) which had held that public authorities were allowed to raise exemptions, or exclusions, which they had not previously relied upon, subject to the case management powers of the tribunal: Department for the Environment, Food and Rural Affairs v Information Commissioner and Birkett [2011] UKUT 39 (AAC) and Information Commissioner v Home Office [2011] UKUT 17 (AAC); [2012] AACR 32. The Information Commissioner had submitted to the F-tT that these decisions of the UT did not apply as sections 12 and 14 were in Part I of FOIA and were not exemptions in Part II. The tribunal had rejected that argument and upheld the appeal under section 14, which deals with vexatious requests. Ms McInerney appealed and among the issues before the UT were whether a public authority may rely for the first time before the F-tT on provisions of FOIA and whether a public authority was obliged to consider severing part of an otherwise vexatious request.
Held, dismissing the appeal, that:
- late reliance was not limited to exemptions under Part II of FOIA and late reliance on sections 12 and 14 was permissible, subject to the possible exercise of the tribunal’s case management powers. If a public authority relied on section 12 the tribunal would take the same approach as the Commissioner. As a practical matter, late reliance may effectively be forced on a public authority by the course of events (paragraphs 34 to 41)
- the tribunal had evidence from the Department of the effects of compliance which had not been challenged and it was entitled to find on that basis that compliance would be troublesome to the Department to the point where the request could properly be characterised as vexatious (paragraph 48)
- a broad approach should be taken when identifying what constitutes the “request” for the purposes of applying section 14. The form in which a request is presented should not dictate how the section is applied. The public authority, and the F-tT on appeal, should take an overall view of the circumstances as a whole to decide whether what was before it, whether presented as a series of requests or a single request, was vexatious (paragraphs 54 to 55).
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:
The decision of the First-tier Tribunal under reference EA/2013/0270, made on 2 July 2014, did not involve the making of an error on a point of law.
REASONS FOR DECISION
A. Abbreviations- I have used these abbreviations:
|
the EIR |
Environmental Information Regulations 2004 (SI 2004/3391) |
|
the Freedom of Information Regulations |
Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (SI 2004/3244) |
|
the APPGER case |
All Party Parliamentary Group on Extraordinary Rendition v the Information Commissioner and the Ministry of Defence [2011] UKUT 153 (AAC) |
|
the Birkett case |
Department for the Environment, Food and Rural Affairs v Information Commissioner and Birkett [2011] UKUT 39 (AAC); [2012] AACR 32 |
|
the Birkett case in the Court of Appeal |
Birkett v Department for the Environment, Food and Rural Affairs [2011] EWCA Civ 1606; [2012] AACR 32 |
|
the Home Office case |
Information Commissioner v Home Office [2011] UKUT 17 (AAC); [2012] AACR 32 |
- The principal issue that arises in this case is whether a public authority may rely for the first time before the First-tier Tribunal on provisions of the Freedom of Information Act 2000, which I will call FOIA, other than the exemptions in Part II. I have decided that this is permissible, subject to the case management powers of that tribunal.
- A further issue is whether a public authority is obliged to consider severing part of an otherwise vexatious request. I have decided that the “request” for the purposes of section 14 has to be decided as a matter of substance, not form, and that the possibility for severing the request may fall to be considered under section 16 of FOIA.
- Ms McInerney was interested in Free Schools as part of her preparation of a PhD thesis. In order to obtain information about the applications that had been made to the Department for Education, she made a request on 1 October 2012 under FOIA:
“Please could you:
(1) release the completed application forms for Free School applicants where the school is now either open or if the school did not proceed to the next stage (i.e. it is no longer still in planning); and
(2) release the letters sent to all Free School applicants 2010-2012 informing them of the decision either to accept or reject their application and the reasons why.
It will be entirely appropriate to redact the names and addresses of the applicants, receivers of the letters and/or remove other details that could identify individuals.
I would also be happy to accept data where the school name has been removed although I would expect an explanation for why it was felt necessary to complete this step.”
- The Department did provide some standard form letters. However, on 5 November 2012, it replied refusing to provide any further information in reliance on the exemption in section 36(2)(c) of FOIA. This response was confirmed following an internal review.
- Ms McInerney applied to the Information Commissioner for a decision under section 50 of FOIA. The Commissioner upheld her complaint, deciding that section 36(2)(c) did not apply as the balance of the public interest favoured disclosure. The Department was given 35 days in which:
“To disclose to the complainant:
(i) copies of all the acceptance and rejection letters sent by the DfE between 1 January 2010 and 1 October 2012 in relation to applications to set up Free Schools;
(ii) copies of all the expressions of interest which were successful in Wave One and the successful applications in Wave Two and Wave Three except for the expressions of interest or applications where the school was not open by 1 October 2012; and
(iii) copies of all of the unsuccessful expressions of...
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