Davies v The Information Commissioner; The Cabinet Office (GIA): [2019] UKUT 185 (AAC):[2020] AACR 2
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Nicol,Judge Markus QC,Judge Jones |
| Neutral Citation | [2019] UKUT 185 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Information rights,Information rights - Freedom of information - qualified exemptions,Information rights - Information rights: practice,procedure,Three Judge Panel |
| Date | 11 June 2019 |
| Published date | 04 July 2019 |
[2020] AACR 2
(Davies v (1) IC (2) CO (GIA))
1
[2020] AACR 2
(Davies v (1) The Information Commissioner (2) The Cabinet Office (GIA)
[2019] UKUT 185 (AAC))
Mr Justice Nicol
Judge Markus QC
Judge Jones
11 June 2019 GIA/2757/2017
Freedom of Information Act (2000); Section 36 (2) – Data Protection Act (1998) - Access
to information - Closed material procedure - Provision of information
In 2015 the Department for Transport consulted on the penalty fares appeals process, including as to the
independence of the Independent Penalty Fares Appeals Service. The appellant complained about the
consultation process to the Cabinet Secretary and requested information under the Data Protection Act 1998
(‘DPA’) and the Freedom of Information Act 2000 (‘FOIA’) to include internal and exte rnal correspondence
relating to emails he had sent.
The Cabinet Office refused to disclose internal civil service emails, relying on the exemptions in section 36(2) of
FOIA and that d ecision was endorsed by the Information Com missioner. The appellant appealed to the First-tier
Tribunal. The tribunal held an open hearing and then a closed session from which the appellant was excluded.
The tribunal dismissed the appeal and provided open, but not closed reasons. It concluded that it had been
reasonable for the Minister for the Cabinet Office, the "qualified person", to find that the exemption was engaged
and that there was the potential for disclosure to inhibit the proper provision of written advice and exchange of
ideas. Permission to appeal was granted upon the basis that in the light of the closed materials, the absence of
confidential reasons meant that it was arguable that the tribunal's conclusion was irrational.
Held, allowing the appeal, that:
1. it was well established that the tribunal was entitled to adopt a closed procedure in order to protect the
confidentiality of information the disclosure of which was the subject of the proceedings. However, a closed
procedure did not diminish the fundamental obligation of a tribunal to give adequate reasons. If a decision
could not be explained adequately without giving clo sed reasons, the tribunal must do so. Providing closed
reasons would not help an ex cluded party understand the result, but they would assist the tribunal in reaching
the right decision and enable an ap pellate court or tribunal to identify whether the decision contained an error
of law (see paragraphs 14-21 of judgment).
2. the tribunal should have invited the appellant to return to the hearing at the end of the closed session so
he cou ld have been provided with as much of an explanation as possible of what took place in the closed
session;
3. although a tribunal might not need to address a matter which was conceded by all parties in open
proceedings and so was no longer in issue, the same could not be said of a concession made in closed
proceedings because the excluded party would have had no opportunity to object to the concession
4. the qualified person’s opinion that disclosure o f the information would prejudice or be lik ely to
prejudice the matters within section 3 6(b)(i) and (ii) and 36(c) of FOIA was not reasonable. Sectio n 36 of the
FOIA was not engaged in this case and there was no need to consider the balance of the public interest under
section 2(2).
[2020] AACR 2
(Davies v (1) IC (2) CO (GIA))
2
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The appellant appeared in person
Mr Peter Lockley appeared for the first Respondent
Mr Richard Moules appeared for the second Respondent
DECISION
The appeal is allowed.
The decision of the First-tier Tribunal dated 19th July 2017 is set aside.
The Upper Tribunal remakes the decision of the First-tier Tribunal in the following
terms: The Upper Tribunal allows the appeal against the decision notice dated 23
February 2017 and substitutes a notice that the disputed information is not
exempt from disclosure and must be disclosed to the Appellant within five weeks
of the date on which this decision is issued to the parties.
DIRECTION UNDER RULE 14 OF THE TRIBUNAL PROCEDURE (UPPER
TRIBUNAL) RULES 2008
The Confidential Annex to this decision must not be published nor disclosed to any
person other than the Information Commissioner and the Cabinet Office without the
permission of the Upper Tribunal, until at least one month after the date this decision is
issued to the parties (or such later date as is required by rule 44(4)(b) or (c)) or, if any
party seeks permission to appeal against this decision, until final disposal of the
permission application and any ensuing appeal or any contrary order by the Court of
Appeal.
REASONS FOR DECISION
Introduction
1. Dr Davies has had a long-standing concern regarding the actions and independence of
the Independent Penalty Fares Appeals Service (‘IPFAS’). He considers that IPFAS cannot
properly be described as “independent” because it is part of one of the train operating
companies. Our decision on this appeal conveys no view, one way or the other, as to whether
there is any merit in that concern. He has been in correspondence with the Department of
Transport about it. In response to an earlier Data Protection Act request, the Department had
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