J Barrett v The Information Commissioner & Anor

In a Freedom of Information Act appeal involving closed material, the tribunal must minimise to the fullest extent possible the disadvantage to the requester who cannot see all evidence and submissions. That duty applies equally where the appeal is determined on the papers.

The tribunal must consider whether a meaningful open gist is required of both withheld material and closed submissions. It cannot refuse further disclosure simply because an existing rule 14(6) direction would be undermined; if fairness requires disclosure, the direction may be amended. A registrar also cannot impose a categorical bar on submissions about rule 14(6) merely because the requester cannot see the material.

The appellant sought documents concerning changes to the Financial Ombudsman Service's complaint-dismissal rules. The Financial Ombudsman Service refused disclosure under section 36 of the Freedom of Information Act 2000. The Information Commissioner upheld that decision.

On the appellant's appeal, the First-tier Tribunal held closed material under rule 14(6) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 and dismissed the appeal on the papers. It declined to give a further gist of the closed material.

The appellant appealed on procedural fairness, the application of the closed-material procedure to a paper determination, and the authority of a registrar to make rule 14(6) directions under the applicable Practice Statement.

1. Appeal allowed. The First-tier Tribunal had erred in law by failing to minimise, to the fullest extent possible, the disadvantages inherent in the appellant's exclusion from closed evidence and submissions. The duty identified in Browning v The Information Commissioner and The Department for Business, Innovation and Skills [2014] EWCA Civ 1050 applies uniformly to a Freedom of Information Act appeal decided on the papers as well as to one involving a closed hearing.

2. The appellant had repeatedly requested a gist before the First-tier Tribunal decided the appeal. The tribunal merely repeated information already available in the Commissioner's decision notice. It did not consider whether the Financial Ombudsman Service's extensive closed submissions should be gisted. A description supplied before tribunal proceedings began could not itself meet that procedural need.

3. The tribunal was wrong to regard its existing rule 14(6) direction as a reason not to consider further disclosure. If fairness required further details to be given, the direction could and should have been amended. Its reluctance to accept a need for a gist in a paper case, combined with its failure to consider closed submissions, rendered the proceedings unfair.

4. The registrar's initial refusal to allow submissions on rule 14(6) was flawed. The reasoning would create a categorical bar in Freedom of Information Act proceedings, and the notice incorrectly failed to state that reconsideration was by a judge. However, subsequent invitations gave the appellant a fair opportunity to make representations. That ground therefore failed.

5. Although unnecessary to the disposition, the 2017 delegation Practice Statement authorised registrars under rule 14 to make orders prohibiting disclosure. Properly and restrictively construed, it did not authorise them to give rule 14 directions.

6. The First-tier Tribunal's decision was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The appeal against the Commissioner's decision notice was remitted for redetermination by a panel whose composition is for the First-tier Tribunal to determine.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, and remitted it for redetermination: [2024] UKUT 107 (AAC).
• First-tier Tribunal (General Regulatory Chamber): dismissed the appellant's appeal against the Information Commissioner's decision notice on the papers on 2 December 2021, case reference EA 2020/0039.