D v The Information Commissioner
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wikeley |
| Neutral Citation | [2018] UKUT 441 (AAC),[2018] UKUT 441 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Information rights,Information rights - Data protection,Information rights - Information rights: practice,procedure,Tribunal procedure,practice - fair hearing,Wikeley,N |
| Date | 21 December 2018 |
| Published date | 07 February 2019 |
Moss v Information Commissioner [2018] UKUT 441 (AAC)
1
GIA/594/2018
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to dismiss the appeal by the Appellant.
The interlocutory decision of the First-tier Tribunal (General Regulatory
Chamber) dated 21 December 2017 under file reference EA/2017/0259 does not
involve any error on a point of law.
This decision is given under section 11 of the Tribunals, Courts and Enforcement Act
2007.
Before Upper Tribunal Judge Wikeley
Attendances:
The Appellant was represented by Mr Greg Callus of Counsel, acting pro bono.
The Respondent was represented by Ms Jen Coyne of Counsel, instructed by Mr
Richard Bailey, Solicitor to the Information Commissioner.
REASONS FOR DECISION
Introduction
1. This is an appeal against the refusal of an anonymity ruling in an information
rights appeal. The First-tier Tribunal (General Regulatory Chamber) decided to
refuse the Appellant’s application for anonymity in his substantive appeal to that
Tribunal. The Appellant now appeals to the Upper Tribunal against that interlocutory
ruling.
2. My decision is that the First-tier Tribunal was right not to make an anonymity
order in the particular circumstances of this case. In short, the Applicant’s Article 6
and Article 8 rights are outweighed by the Article 6 and Article 10 rights of others. An
incidental reason for that decision is that there are other ways in which the
Appellant’s concerns about a potential breach of his privacy rights may be properly
addressed. One such technique is by drafting this decision in such a way that
unnecessary details are excluded, so further minimising what I decide is, in any
event, a very remote possibility of “jigsaw” identification. It follows that in this decision
factual details are included only where strictly necessary to enable the disinterested
reader to understand the proceedings.
A preliminary point: the nomenclature ruling
3. At an early stage in this appeal I directed that the case be simply known by the
nomenclature of D v Information Commissioner (case management directions dated
22 March 2018). This was because, as Warby J. explained in Hemsworth (formerly
SWS) v Department for Work and Pensions [2018] EWHC 1998 (QB): “The
justification … is obvious: the point of the application would be defeated if
identification of the applicant was the price of making it. Anonymity was therefore
necessary to do justice, pending my decision” (at paragraph 3).
4. Although in the event I dismiss the Appellant’s appeal, I maintain what I describe
as my “nomenclature ruling” for a limited period. This is to allow the Appellant the
Moss v Information Commissioner [2018] UKUT 441 (AAC)
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GIA/594/2018
appropriate time to consider whether he wishes to challenge this decision on appeal
in the Court of Appeal (see paragraph 49 below).
A summary of the background to the present appeal
5. Some years ago, the Appellant brought judicial review proceedings
unsuccessfully against a public sector body (PSB 1) that is charged with an
investigatory function. He then brought a related judicial review claim against a
second public sector body that also has an investigatory role (PSB 2). Although that
latter claim was unsuccessful, and according to a document on the file apparently
adjudged to be “totally without merit” (I should record that I have not seen a copy of
the court order in question), both the High Court and the Court of Appeal granted the
Appellant’s request for anonymity in that second set of judicial review proceedings.
Subsequently, the Appellant made a request to another public sector body (PSB 3),
in effect to review decisions taken by PSB 2, but to no avail. The Appellant then
made a request to PSB 3 under the Freedom of Information Act 2000 (FOIA) for
certain information concerning its approach to PSB 2 and related matters.
6. In response, PSB 3 released some of the information requested. However, it
also (i) refused to provide the remainder of the information on the basis that section
40(2) of FOIA applied (personal information); and (ii) denied holding other information
that had been requested. The personal information in question comprised the names
of certain PSB 3 staff members. PSB 3 maintained its position on internal review.
The Appellant then lodged a complaint with the Information Commissioner. She
concluded in her decision notice that PSB 3 should release one small element of the
data sought, but in all other respects confirmed its approach.
7. The Appellant appealed against the Information Commissioner’s decision notice
to the First-tier Tribunal. His grounds of appeal (in summary) were that the
Commissioner had (1) failed properly to investigate the complaint; (2) wrongly
accepted PSB 3’s understanding of a relevant statutory provision (not a provision in
FOIA); (3) erred in her application of section 40(2) of FOIA; (4) ignored the
Appellant’s arguments; and (5) breached the Appellant’s Article 6.1 rights to a fair
hearing (as had PSB 3). As will be seen, that substantive appeal has yet to be heard
by the First-tier Tribunal.
8. The standard notice of appeal form used by the First-tier Tribunal includes a
section which allows a party to specify any special requirements they may have. The
Appellant wrote in that box as follows:
“I have a number of debilitating physical and mental health problems (evidence
of which has already been provided to the GRC) and I’m disabled for the
purposes of the Equality Act 2010. I will be unable to attend a hearing in person
and request a telephone hearing. I have no means of paying for representation
and legal aid is not available for proceedings before the Tribunal, so I will be
severely disadvantaged in having to represent myself against the Commissioner
(and possibly [PSB 3] as well), who has experienced solicitors and barristers
acting for her, paid for by public funds. As such these proceedings may breach
my Article 6(1) right to a fair hearing and whilst the Tribunal may be limited in
what it can do to avoid this, it is asked to bear this in mind and consider what it
might do to try and minimise any disadvantage.”
9. Subsequently the Appellant made a freestanding interlocutory application to the
First-tier Tribunal in the following terms:
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