Kelway, R (on the application of) v The Upper Tribunal (Administrative Appeals Chamber)

A Cart claim challenging an Upper Tribunal refusal must be filed within the strict period prescribed by CPR 54.7A. Where a valid setting-aside application is made, time runs from the refusal of that application. An extension requires a proper application and a satisfactory explanation for delay.

Information held by a public authority which is also personal data falls outside the operative disclosure regime of the Freedom of Information Act 2000 and must be dealt with under the Data Protection Act 1998. The meaning of personal data requires a structured application of the statutory definition, the Directive, the WPO, the TGN and Durrant v Financial Services Authority. Personal data may relate jointly to more than one individual.

The claimant sought permission for judicial review of two Upper Tribunal decisions refusing permission to appeal decisions of the Information Tribunal concerning disclosure of police investigation material. The Upper Tribunal had treated the Information Tribunal’s decision as resting on both the personal-data exemption and the investigations exemption.

The court held that the Upper Tribunal had fundamentally misunderstood the Information Tribunal’s decision, but nevertheless considered the proposed appeal. It also determined applications for disclosure of the disputed witness statements under the Data Protection Act 1998, the Civil Procedure Rules and non-party disclosure provisions.

1. Cart claim and time. The claim was filed substantially out of time. Under CPR 54.7A, time ran from the refusal of the valid setting-aside application. The earlier case-management orders did not extend time for a claim that had not yet been issued. No satisfactory explanation for the delay was provided, so time was not extended.
2. Upper Tribunal decisions. The Upper Tribunal judge had wrongly treated the Information Tribunal’s decision as based on alternative sections 40 and 30 grounds. The Information Tribunal had decided the three factual statements under section 40 and had considered section 30 only in relation to the two technical statements. The Upper Tribunal therefore failed to address the actual section 40 grounds and the procedural-irregularity challenge. Its decisions were fundamentally flawed.
3. Jurisdiction and personal data. The Information Tribunal’s jurisdiction was limited to deciding whether the Commissioner’s conclusion that the request concerned personal data was legally defective. Personal data was assessed by applying the statutory definition together with the Directive, the WPO, the TGN and Durrant v Financial Services Authority. In a difficult case, the decision-maker should consider content, purpose and result, together with biographical significance, focus and proximity.
4. FOIA and DPA overlap. Where requested information is the applicant’s personal data, or third-party personal data which cannot lawfully be disclosed, the request must be processed under the Data Protection Act 1998, not the Freedom of Information Act 2000. The public authority, rather than the applicant, determines the applicable regime.
5. Third-party data and disclosure. The statements were also the personal data of their makers. The district judge’s statement was sensitive personal data, and there was no consent or other applicable condition permitting disclosure. Disclosure was therefore prohibited under both statutory regimes.
6. Disposition. Permission to proceed with the Cart claim was refused because it was out of time and disclosed no arguable case. The disclosure applications in the related judicial review were dismissed. There was no order as to costs.

• Information Tribunal: dismissed the appeal concerning three factual witness statements and ordered limited disclosure of two technical statements.
• Upper Tribunal: refused permission to appeal and refused the setting-aside application.
• High Court (Administrative Court): held that the Upper Tribunal decisions were fundamentally flawed but refused permission because the Cart claim was out of time and the proposed appeal had no realistic prospect of success.