Hwan C Lin v The Information Commissioner

An appeal under the Freedom of Information Act 2000 is a full merits review. The First-tier Tribunal may make findings of fact different from those of the Information Commissioner. Grounds which challenge factual findings underpinning a finding that a request was vexatious are capable of engaging that jurisdiction.

Strike-out for no reasonable prospects is a draconian case-management power. Where grounds are unclear, the tribunal should consider proportionate directions to clarify them before striking out an appeal. A strike-out based on the erroneous view that adequately particularised grounds do not engage the statutory jurisdiction is an error of law.

Dr Lin appealed the Information Commissioner’s decision notice that the London School of Economics could rely on section 17(6) of the Freedom of Information Act 2000 in relation to his information request. The Commissioner had concluded that the request was vexatious.

The First-tier Tribunal, in decision number EA/2022/0305 dated 12 January 2023, struck out Dr Lin’s appeal under rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. It held that the grounds did not engage its jurisdiction under sections 57 and 58 of the Act. Permission to appeal was refused by the First-tier Tribunal.

The central issue was whether the First-tier Tribunal had been entitled to strike out the appeal on that basis.

1. Appeal allowed. The First-tier Tribunal’s strike-out decision involved an error of law. It was set aside and the case was remitted to a differently constituted First-tier Tribunal for reconsideration of the Commissioner’s strike-out application.

2. Under section 58 of the Freedom of Information Act 2000, the First-tier Tribunal conducts a full merits review. Its jurisdiction includes making factual findings different from those made by the Commissioner. The Tribunal therefore erred in treating its role as confined to identifying an error of law or a wrongful exercise of discretion.

3. The grounds did engage that jurisdiction. Although the appellant’s express denial that his request was vexatious was brief, other grounds challenged the factual findings underlying that conclusion, including findings about the request, alleged conspiracy advocacy, co-operation with others, and obsessive or unreasonable conduct. Those matters were relevant to the statutory vexatiousness issue.

4. A strike-out for no reasonable prospects is a draconian measure. If grounds are unclear, the Tribunal should consider less restrictive case-management measures, such as directing an appellant to identify the basis and evidence for challenging specified findings. This approach accords with the overriding objective and with Jones v Information Commissioner & Department for the Environment (NI) [2016] UKUT 82 (AAC).

5. The Upper Tribunal declined to remake the strike-out decision. Fact-finding was properly a matter for the First-tier Tribunal. The case was remitted under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s strike-out decision, and remitted the matter for reconsideration by a different judge.
• First-tier Tribunal (General Regulatory Chamber): In EA/2022/0305, dated 12 January 2023, struck out the appeal under rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. It refused permission to appeal on 20 February 2023.