Dr T Cutler v Information Commissioner & Anor

A communication is a request for information under the Freedom of Information Act 2000 only if, objectively construed, it describes information sought from the public authority. A request for clarification, an opinion, or a view on an issue does not satisfy that requirement. Nor may a tribunal recast such a communication as a request for drafts, emails or other records which the applicant did not request.

Before striking out an appeal for lack of reasonable prospects on a ground not advanced by a party, the tribunal must give the appellant a fair opportunity to address that ground. A failure to do so is procedural unfairness and an error of law. The Upper Tribunal may nevertheless re-make the decision where that opportunity has been afforded on appeal and the case has no real prospect of success.

The appellant asked the Equality and Human Rights Commission questions concerning a passage in its report into antisemitism in the Labour Party. The Commission stated that it held no information within the scope of the communication. The Information Commissioner rejected the appellant’s complaint under the Freedom of Information Act 2000.

On the appellant’s appeal, the First-tier Tribunal struck out the proceedings. It did so on the basis that the original communication was insufficiently particularised, although that ground had not formed part of the Equality and Human Rights Commission’s strike-out application. The First-tier Tribunal granted permission to appeal on the arguable ground of natural justice.

The central issues were whether the First-tier Tribunal had acted unfairly and, if so, whether the Upper Tribunal should remit the case or re-make the strike-out decision.

1. Appeal allowed. The First-tier Tribunal erred in law by striking out the appeal on a ground which it introduced itself without giving the appellant an opportunity to make representations. Its invitation under rule 8(4) concerned the Equality and Human Rights Commission’s proposed strike-out grounds. The appellant could not reasonably have anticipated that the tribunal would determine that his communication was not a request for information under the Freedom of Information Act 2000. The procedure was therefore unfair and contrary to natural justice.

2. The Upper Tribunal set aside the First-tier Tribunal’s decision under section 12 of the Tribunals, Courts and Enforcement Act 2007. It re-made the decision rather than remitting it. In the Upper Tribunal, the appellant had had the opportunity which he had previously been denied to address whether his communication was a request for information. A further hearing or remittal would waste tribunal resources, since there was no real possibility of the appeal succeeding.

3. Section 1(1) of the Freedom of Information Act 2000 confers rights only where a request for information has been made. Under section 8(1)(c), the communication must describe the information requested. This is an objective question, and a public authority’s treatment of a communication as a FOIA request is not conclusive.

4. The appellant’s questions about whether a report contained a factual finding or a drafting error sought clarification or invited a view. They did not seek recorded information already held. The communication could not legitimately be recharacterised as a request for earlier drafts, internal emails or evidence of deletion. The remaining question similarly invited the EHRC to express a view and was not a request for information.

5. No properly instructed tribunal could find that the communication met section 8(1)(c). The appeal against the Commissioner’s decision notice had no reasonable prospect of success and was struck out in its entirety under rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for procedural unfairness, and re-made it by striking out the underlying FOIA appeal.
• First-tier Tribunal (General Regulatory Chamber): In case reference EA 2022/02124, struck out the appellant’s appeal against the Information Commissioner’s decision notice and later granted permission to appeal on an arguable natural-justice ground.