Anna Christie v The Information Commissioner

On an appeal under the Freedom of Information Act 2000, the Upper Tribunal must decide whether the First-tier Tribunal made an error of law, not whether it would have struck the balance differently. In applying Article 6(1)(f) GDPR, the decision-maker must identify the legitimate interests pursued, ask whether the processing is necessary for those interests, and then decide whether those interests are overridden by the data subject’s rights and interests. The First-tier Tribunal’s evaluative judgment will not constitute an error of law where it applied the correct tests, considered relevant factors on both sides, gave adequate reasons and reached a rational conclusion. Permission to appeal may be granted in exceptional circumstances only where the proposed appeal raises a point of law within the Upper Tribunal’s jurisdiction.

The appellant requested information from Gloucestershire Constabulary about the number of female suspects who had made sexual-misconduct complaints against a named person. The Constabulary declined to confirm or deny whether it held the information under section 40(5B) of the Freedom of Information Act 2000. The Information Commissioner upheld that response, and the First-tier Tribunal dismissed the appellant’s appeal under section 58.

The Upper Tribunal granted permission to appeal. The central issues were whether the First-tier Tribunal had applied the correct Article 6(1)(f) GDPR test, adequately assessed the competing interests, and made an error of law under section 12 of the Tribunals, Courts and Enforcement Act 2007.

1. The appeal was dismissed. The First-tier Tribunal’s decision did not involve an error of law under section 12 of the Tribunals, Courts and Enforcement Act 2007.
2. The First-tier Tribunal correctly understood its task under section 58 of the Freedom of Information Act 2000 and the operation of section 40(5B). It correctly applied the three questions identified in South Lanarkshire Council v Scottish Information Commissioner [2013] 1 WLR 2421: whether a legitimate interest was pursued, whether processing was necessary for that interest, and whether processing was unwarranted because of prejudice to the data subject’s rights, freedoms or legitimate interests.
3. The tribunal was entitled to accept the appellant’s stated interests, find that confirmation or denial was necessary to advance them, and take account of other routes available to protect the interests identified. Those routes were relevant to the balancing exercise even though they were not personally available to the appellant as a non-victim.
4. The tribunal’s conclusion that the appellant’s interests did not override those of the data subject was an evaluative judgment. The tribunal considered the relevant factors on both sides, explained its reasoning and reached a rational conclusion. The Upper Tribunal could not treat a disagreement about the weight given to those factors as an error of law.
5. The appellant’s argument concerning a possible criminal trial was not raised before the First-tier Tribunal, so failure to address it could not constitute an error of law. Information about regulatory complaints did not establish that misconduct had occurred, that the person identified was necessarily the same person, or that a practice restriction was connected with the concerns raised.
6. Permission to appeal is a threshold requirement and does not need to be reconsidered once granted. Under the guidance in Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538, the realistic-prospect test is distinct from the exceptional-circumstances test. The latter should be used only exceptionally and cannot replace the former. In any event, permission can be granted only where the proposed appeal raises a point of law within the Upper Tribunal’s statutory jurisdiction, as explained in Secretary of State for Work and Pensions v Robertson [2015] CSIH 82.

• First-tier Tribunal (General Regulatory Chamber) dismissed the appeal against the Information Commissioner’s decision notice. Reference EA/2021/0355.
• Upper Tribunal (Administrative Appeals Chamber) granted permission to appeal and dismissed the appeal, holding that the First-tier Tribunal had made no error of law under section 12 of the Tribunals, Courts and Enforcement Act 2007.