William Harrison Jones v (1) The Information Commissioner, (2) Department of Environment Northern Ireland)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Stockman |
| Neutral Citation | [2016] UKUT 82 (AAC),[2016] UKUT 82 (AAC),[2016] AACR 33 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Information rights,Information rights - Freedom of information - right of access,Stockman,O |
| Date | 07 December 2015 |
| Published date | 01 December 2016 |
[2016] AACR 33
(Jones v IC)
[2016] AACR 33
(William Harrison Jones v Information Commissioner and the Department of the Environment (Northern Ireland)
[2016] UKUT 82 (AAC))
Judge Stockman GIA/607/2012
7 December 2015
Tribunal procedure and practice – fair hearing – strike outs
Freedom of information – right of access – public interest
There was maladministration in the granting of planning permission for a development in a village, but the permission could not be withdrawn according to the legal advice obtained by the Department of the Environment (Northern Ireland). The appellant, a local resident, made a request under the Freedom of Information Act 2000 (FOIA) for a copy of the Department’s questions to its lawyers for that legal advice. The Department refused his request and the Information Commissioner (IC) upheld that response, on the basis of an exception to disclosure of internal communications between government departments under regulation 12(4)(e) of the Environmental Information Regulations 2004 (EIR) and alternatively that regulation 12(5)(b) applied. The appellant appealed against that decision to the First-tier Tribunal (F-tT) but failed to challenge either the legality of the notice or the Commissioner’s exercise of his discretion and instead raised matters over which the tribunal had no jurisdiction. The F-tT struck out the appellant’s appeal under rule 8(3) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (the F-tT Rules) as having no reasonable prospects of success but also held that the information was either exempt or an exception under the EIR and that the public interest in maintaining the exception outweighed the public interest in disclosing it. The appellant appealed to the Upper Tribunal (UT) and among the issues before it were whether the F-tT had failed in its inquisitorial obligation to look beyond the formal grounds of the appeal, to have regard to the overriding objective of dealing with cases fairly and justly or had erred in its approach to regulation 12(4)(e) and/or regulation 12(5)(b) of the EIR.
Held, allowing the appeal, that:
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the power to strike out an appeal under rule 8(3)(c) was subject to the overriding objective of the F-tT to deal with cases fairly and justly (rule 2(2)(b)) and to ensure, so far as practicable, that the parties are able to participate fully in the proceedings (rule 2(2)(c)) (paragraphs 42 to 43);
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in considering the use of the power to strike out an appeal under rule 8(3)(c), the F-tT must apply its knowledge of the law to the established facts, and it was not limited in its consideration of the facts by the arguments advanced by the appellant. But the tribunal was not required to investigate an issue that had not been the subject of argument by the appellant if, regardless of the facts found, the issue would have no prospects of success: Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495, reported as R(IB) 4/07 (paragraph 51);
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“the appellant’s case” in rule 8(3)(c) was not synonymous with “the grounds on which the appellant relies” in rule 22(2)(g): Birkett v Department for the Environment Food and Rural Affairs [2011] EWCA Civ 1606; [2012] AACR 32. The F-tT’s role was not to review the decision of the Information Commissioner but to consider de novo the propriety of releasing the information. To be satisfied that an appeal had no reasonable prospect of success, the F‑tT would need to be satisfied that on no legitimate view of the facts or the law could the appeal succeed (paragraphs 55 to 58);
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the exemption under regulation 12(4)(e) of the EIR was engaged and the public interest in maintaining the exception outweighed the public interest in disclosing the information (no view was expressed as to whether the exception at regulation 12(5)(b) applied) (paragraphs 66 to 80).
The judge set aside the decision of the F-tT to strike out the appeal and upheld the decision of the Information Commissioner that the request for information had been correctly refused.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Appellant: Mr William Harrison Jones
First respondent: The Information Commissioner
Second respondent: Department of the Environment (NI)
First-tier Tribunal Case No. EA/2011/0147
First-tier Tribunal Decision Date 20 December 2011
DECISION
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This appeal is from a decision of the First-tier Tribunal (General Regulatory Chamber) (the F-tT) given on 20 December 2011. The decision of the F-tT was to strike out the appellant’s appeal to it from the first respondent’s decision notice given on 22 June 2011 under reference FER0327603. The appeal was struck out under rule 8(3) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI 2009/1976) (the F-tT Rules).
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The appeal is made under section 11(2) of the Tribunals, Courts and Enforcement Act 2007, leave to appeal having been granted by me on 8 July 2014. The question before me is whether the decision of the F-tT involved the making of an error of law.
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For the reasons I give below, I allow the appeal and I set aside the decision of the F-tT on the basis that its decision involved the making of an error of law.
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However, I proceed to re-make the decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 to the effect that the second respondent is entitled to refuse to disclose the information requested on the basis that the exception to disclosure under regulation 12(4)(e) of the Environmental Information Regulations 2004 (SI 2004/3391) (the EIR) applies.
REASONS
Background
5. The background circumstances were not disputed, and essentially are that a number of planning decisions were taken in relation to land in the village of Waringstown, Co Armagh. These affected the archaeological heritage and character of the village by permitting the development of dwelling houses on the site of a ráth – a circular enclosure surrounded by an earthen wall used as a dwelling in ancient times – and in the orchard garden of a listed building – the Grange - dating from 1698.
6. Subsequent investigation by a Planning Service (PS) Audit Team in 2006 found failure to follow agreed consultation procedures with the Environment and Heritage Service (EHS), failure to make planning permission subject to an archaeological condition as recommended by the EHS, further failure to consult with EHS or place an archaeological condition on the planning consent, failure to reflect stated EHS concerns in a recommendation to the PS management board, and failure to reflect a PS management board decision, which made consent subject to an archaeological condition, in the approval actually issued to the developer.
7. It was subsequently established that the file which included the planning permission to build on the site of the ráth was inexplicably missing. Maladministration was established by the investigation of the PS Audit Team. The Northern Ireland Audit Office was later to say that there was insufficient evidence to conclude that fraud or deliberate wrongdoing occurred in the case, but that there was also insufficient assurance to conclude that it did not.
8. The appellant was one of a number of local residents who, along with elected representatives, sought an explanation for the events detailed above. In the course of an attempt to obtain information through a Parliamentary question in 2005, it appears that incorrect information was given to a Minister by the second respondent, causing her to mislead Parliament.
9. At a meeting on 13 October 2006 involving the appellant, an elected representative and senior officials of Department of the Environment (Northern Ireland) (the second respondent), the second respondent agreed to seek legal advice on the issue of whether planning permission in relation to the Grange could be discontinued. The appellant was later informed in general terms that the advice was to the effect that it could not. A request by an elected representative for disclosure of the advice received by the second respondent was refused. In March 2010 the appellant then requested “a copy of the recorded questions put to the lawyers”. That request was refused by the second respondent. A complaint to the Information Commissioner (the first respondent) led to a decision notice to the effect that the second respondent had correctly refused the request on the basis of an exemption afforded by regulation 12(4)(e) of the EIR and alternatively that regulation 12(5)(b) applied.
10. The appellant appealed to the F-tT. On 20 December 2011 the F-tT struck out the appellant’s appeal from a decision notice of the first respondent dated 22 June 2011. The appellant has now appealed to the Upper Tribunal from the decision striking out his appeal.
11. Following a hearing on 24 June 2015, I granted leave to appeal on the grounds that it was arguable that:
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the F-tT had an inquisitorial obligation to look beyond the formal grounds submitted by the appellant when addressing the issue of whether an appeal had no reasonable prospects of success;
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the F-tT failed to have regard to the overriding objective of dealing with cases fairly and justly when striking out the appeal;
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the...
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