Noel Pereira v The Information Commissioner

In a challenge to disclosure of personal information under section 40(2) of the Freedom of Information Act 2000, the Upper Tribunal will not redecide the evidential merits or the weight assigned by the specialist First-tier Tribunal. The relevant interests must be assessed through the structured questions derived from South Lanarkshire: legitimate interest, reasonable necessity, and whether disclosure is unwarranted because of prejudice to the data subject’s rights, freedoms or legitimate interests. An alleged error on a logically prior question will not justify allowing an appeal without a demonstrated effect on the balancing exercise.

Mr Pereira requested information from the Insolvency Service about checks undertaken before and after a third party obtained a Debt Relief Order. The request in issue concerned specific actions taken in relation to that third party’s application. The Insolvency Service relied on section 40(2) of the Freedom of Information Act 2000.

The First-tier Tribunal accepted that Mr Pereira had a legitimate interest and that disclosure might be necessary, but held that the third party’s privacy rights outweighed the interests in disclosure. Permission to appeal was granted on arguments concerning the Tribunal’s treatment of the legitimate-interests analysis, the third party’s expectation of privacy, alleged fraud and the public interest in accountability. The issue was whether the First-tier Tribunal had made a material error of law.

1. Appeal dismissed. The First-tier Tribunal’s decision, as amended, involved no material error of law.
2. The appeal concerned only disclosure of information specific to the third party’s Debt Relief Order. An alleged failure to comply with steps ordered in relation to other requests would require separate proceedings under section 61(3) and (4) of the Freedom of Information Act 2000 and rule 7A of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2008.
3. The analysis under South Lanarkshire Council v Scottish Information Commissioner asks whether there is a legitimate interest, whether disclosure is necessary for that interest, and whether disclosure is unwarranted because of prejudice to the data subject’s rights, freedoms or legitimate interests. The First-tier Tribunal found the first two questions in Mr Pereira’s favour. Any possible error in its treatment of the first question therefore had no demonstrated effect on the balancing exercise.
4. The Upper Tribunal found a sufficient evidential basis for the conclusion that the third party had no expectation that details of the Debt Relief Order application would be disclosed. The distinction between a positive expectation of confidentiality and the absence of an expectation of disclosure made no material difference.
5. The First-tier Tribunal was entitled to treat evidential weight as a matter for the specialist fact-finder. Its assessment could be disturbed only for an error of law, including a conclusion that no rational tribunal could have reached. The evidence relied on did not establish fraud, and the Tribunal had taken the allegation into account.
6. Arguments based on alleged inadequate investigation and public accountability merely sought a reargument of the merits. The First-tier Tribunal had balanced those matters, including other accountability mechanisms, against the sensitive private information and likely harm or distress from disclosure. It was entitled to conclude that the privacy rights prevailed.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed. The First-tier Tribunal’s decision dated 22 April 2022, as amended on 13 May 2022, was held not to involve any material error of law.
• First-tier Tribunal (General Regulatory Chamber): allowed the appeal concerning general guidance and substituted a decision notice requiring reconsideration, but rejected the challenge concerning disclosure of information specific to the third party’s Debt Relief Order.