Moss v Information Commissioner

An anonymity order is a derogation from open justice. It may be made only where it is necessary. The court must conduct the ultimate balancing exercise between the applicant’s rights under Articles 8 and 6 of the European Convention on Human Rights and the Article 10 and Article 6 rights of the public and press. Those public rights are engaged even though the public and press are not parties.

The applicant bears the burden of showing an objective need for anonymity. A litigant cannot obtain it merely by saying that they will otherwise decline to participate. The court may give limited weight to privacy concerns where the risk of identification is negligible and the litigant voluntarily commenced the proceedings.

The appellant challenged an interlocutory refusal by the First-tier Tribunal to grant anonymity in his appeal against a decision notice of the Information Commissioner concerning a request under the Freedom of Information Act 2000. He sought anonymity, a private hearing, sealing of the file and reporting restrictions, relying on medical confidentiality and earlier anonymity orders.

The Upper Tribunal dismissed his appeal in [2018] UKUT 441 (AAC). It held that open justice prevailed, the risk of jigsaw identification was negligible, and medical evidence was unnecessary to the substantive information-rights appeal. The appellant appealed on the basis that the tribunal had wrongly balanced Convention rights and had breached Articles 6 and 8.

Decision

1. The court dismissed the appeal. The application for anonymity and the related applications to seal the file, restrict disclosure and impose reporting restrictions were dismissed. The interim anonymity order was discharged.

2. Articles 10 and 6 were engaged by an application for anonymity. They protect the open-justice interests of the public and press, independently of whether they are parties to the proceedings. The court applied the ultimate balancing test stated in [2005] 1 AC 593 (HL): neither Article 8 nor Article 10 has precedence; the court must focus intensely on the particular rights, the justifications for interference and proportionality.

3. Anonymity is a departure from open justice and is permissible only where necessary. Necessity, rather than convenience or a litigant’s subjective preference, is the touchstone. The person seeking the departure bears the burden of establishing an objective foundation for it. The principle applies to tribunals as well as courts.

4. The appellant’s reliance on authorities concerning a free-standing Article 10 right of access to information held by public bodies was misplaced. He was seeking to prevent the publication of ordinarily public tribunal information. It was immaterial whether the relevant restriction would be made under an inherent common-law power or a statutory power.

5. The further Article 6 arguments were outside the permission granted, which concerned the refusal of anonymity alone. In any event, the claimed inability to continue without anonymity was circular. A party cannot make anonymity a condition of participation without first showing an objectively justified need.

6. The broad references to medical conditions in the Upper Tribunal decision were, if they interfered with Article 8, justified and proportionate. The appellant had initiated the proceedings and there was no appreciable risk that disclosure would identify him in earlier anonymised litigation.

• Court of Appeal (Civil Division) — dismissed the appeal and upheld the refusal of anonymity: [2020] EWCA Civ 580.
• Upper Tribunal (Administrative Appeals Chamber) — dismissed the appeal from the First-tier Tribunal, finding no error of law in the refusal of anonymity: [2018] UKUT 441 (AAC).
• First-tier Tribunal — refused anonymity by interlocutory decisions of 1 and 21 December 2017, granted permission to appeal that issue, and stayed the substantive appeal.