Ofqual v Information Commissioner

Under section 2(2)(b) of the Freedom of Information Act 2000, the public-interest balance is assessed as at the date when the public authority decides how to respond to the request. On appeal, later information may be considered only so far as it bears on the decision that ought to have been made at that date. A tribunal must independently assess the evidence and public-interest balance. It is not required to adopt a special precautionary approach to evidence from the executive. Instead, it must assess the quality and weight of the evidence, including any institutional or informational advantages held by the witness. Adequate reasons must explain how the requested information advances the public interest relied upon.

Ofqual appealed against the First-tier Tribunal’s dismissal of its appeal from an Information Commissioner decision under the Freedom of Information Act 2000. The request concerned statistical information showing changes between centre-assessed and calculated grades produced by the 2020 examination algorithm. The Commissioner had found that section 36(2)(c) was engaged but that section 2 required disclosure.

The Upper Tribunal considered whether the First-tier Tribunal had adequately explained its conclusion that disclosure would materially advance the public debate, whether it had applied the correct timing for the public-interest assessment, and whether it was required to adopt a precautionary approach to evidence from Ofqual and the Secretary of State.

The appeal was allowed. The First-tier Tribunal’s decision was set aside for error of law and the case was remitted to a differently constituted panel for rehearing.

1. The First-tier Tribunal’s conclusion that disclosure would add significant value to debate about the fairness of the algorithm was an assessment rather than a finding of fact. Its reasons did not explain how statistical information showing the scale and range of changes caused by the algorithm demonstrated whether the algorithm’s effects were unfair or anomalous. That inadequate reasoning undermined the public-interest comparison required by section 2(2)(b) of the Freedom of Information Act 2000.
2. The public-interest balance under section 2(2)(b) falls to be assessed in all the circumstances as at the date when the public authority decides how to respond to the request. On review or appeal, later information may be considered only so far as it is relevant to the decision that should have been made at that date. The First-tier Tribunal had applied that approach.
3. There was no special precautionary principle applicable to evidence from the executive in cases involving multiple stakeholders or polycentric issues. The tribunal had to assess the evidence and arguments for itself. It could not surrender its judicial responsibility by accepting a witness’s or party’s view without independent assessment.
4. In assessing evidence, the tribunal had to consider factors affecting its quality, including advantages of information or experience available to a witness but not to the tribunal. The weight of evidence depended on the reasoning supporting it, rather than merely on the witness’s conclusion. Appropriate respect could be given to executive assessments where institutional capacity or democratic accountability justified it, while preserving the tribunal’s independent decision-making role.

Any further errors in assessing the evidence would be addressed at the rehearing.

• Upper Tribunal (Administrative Appeals Chamber): the First-tier Tribunal decision dated 14 June 2022 was set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, and the case was remitted for rehearing by a differently constituted panel.
• First-tier Tribunal (General Regulatory Chamber): dismissed Ofqual’s appeal against the Information Commissioner’s decision notice.
• Information Commissioner: decided that section 36(2)(c) of the Freedom of Information Act 2000 was engaged but that the public interest required disclosure.