Innes, R (on the application of) v Information Commissioner

A tribunal considering summary dismissal must clearly notify the appellant that it is minded to dismiss the appeal summarily. The notice must explain the proposed course and inform the appellant of the right to make written representations and request an oral hearing. A general direction that summary dismissal is a possibility is insufficient, particularly where the appellant is unrepresented. Breach of that procedural protection may justify setting aside the tribunal’s decision where there is a real risk that the appellant was deprived of a meaningful opportunity to respond.

The appellant had made requests for information under the Freedom of Information Act 2000 concerning Bedgrove Junior School. After the Information Commissioner issued a decision notice, the appellant appealed to the Information Tribunal. The Tribunal summarily dismissed the appeal on the papers under rule 10 of the Information Tribunal (Enforcement Appeals) Rules 2005.

Before the High Court, the appellant challenged the Tribunal’s procedure and also raised concerns about alleged secret communications in another appeal. The central issue was whether the Tribunal had given adequate notice of its intention to dismiss the appeal summarily and of the appellant’s procedural rights.

1. Secret communications. The court declined to investigate alleged communications arising from a different Tribunal decision. There was insufficient evidence that anything similar had occurred in the present appeal, and it would have been improper to speculate about events in another case.
2. Rule 10 procedure. Rule 10(2) required clear notification if the Tribunal was minded to determine the appeal summarily. The notification had to alert the appellant to the proposed dismissal and explain the entitlement to make written representations and request an oral hearing. A direction stating only that summary dismissal was a possibility did not satisfy that requirement, especially where lay appellants might be involved.
3. Prejudice and remedy. The failure was substantive rather than merely technical. There was a risk of real prejudice because the appellant may have been deprived of a meaningful opportunity to address the proposed summary dismissal, orally and in writing. The court therefore declined to disregard the procedural failure on the basis that the appeal might ultimately lack merit.
4. Disposition. The appeal was allowed on that narrow procedural ground. The Tribunal’s decision was set aside and the matter was remitted to the appeal body for reconsideration. The court expressed no view on the substantive merits of the appellant’s information-law arguments.

1. High Court (Administrative Court): appeal allowed on a procedural ground; the Tribunal’s decision was set aside and the matter remitted for reconsideration.
2. Information Tribunal: appeal EA/2009/0064 summarily dismissed on the papers on 12 October 2009; decision dated 9 November 2009.