Liam Gerard Harron v The Information Commissioner & Anor

An appeal against an information-rights decision engages the First-tier Tribunal’s jurisdiction where, fairly read, the appellant contends that further information is held or that a claimed exemption does not apply. The Tribunal has a full merits jurisdiction under sections 57 and 58 of the Freedom of Information Act 2000; it is not confined to a secondary judicial-review inquiry.

A litigant-in-person’s notice of appeal must be read as a whole and in context. An inexpertly expressed hope that the Commissioner may reconsider a decision does not, without more, define the remedy sought from the Tribunal. Any deficiency in the merits of the grounds may support strike-out for no reasonable prospect of success, but does not itself deprive the Tribunal of jurisdiction.

The appellant requested from Rotherham Metropolitan Borough Council communications concerning its decision not to distribute a booklet about child sexual exploitation survivors, and the identity of a practitioner consulted about the booklet. The Council refused disclosure, relying in part on section 40(2) of the Freedom of Information Act 2000.

The Information Commissioner’s Decision Notice of 8 September 2022 upheld that response. The First-tier Tribunal struck out the appellant’s appeal on the footing that it lacked jurisdiction, treating his stated hope that the Commissioner would review the notice as the substance of his appeal.

The issue before the Upper Tribunal was whether the First-tier Tribunal had erred in concluding that no part of the appeal engaged its statutory jurisdiction.

1. Appeal allowed. The First-tier Tribunal’s strike-out decision was made in error of law. It was set aside and the strike-out applications were remitted to a freshly constituted First-tier Tribunal.

2. The First-tier Tribunal has full merits jurisdiction on an appeal against a Decision Notice under sections 57 and 58 of the Freedom of Information Act 2000. It may determine whether further requested information is held and whether disclosure should be ordered notwithstanding section 40(2). The expression “not in accordance with the law” does not impose a secondary judicial-review test.

3. The First-tier Tribunal misread the Notice of Appeal. The appellant’s hope that the Commissioner might review the Decision Notice appeared under his own heading of background information. It was not, fairly read, a request that the Tribunal direct the Commissioner to reconsider the notice. The notice and subsequent submissions instead advanced, at least implicitly, the contentions that further information was held and that the practitioner’s identity should be disclosed.

4. Those contentions engaged the Tribunal’s adjudicative jurisdiction. Whether they were inadequately particularised or lacked evidential merit was a question for a possible strike-out under rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, not a basis for concluding that the Tribunal had no jurisdiction.

5. In dealing with a litigant-in-person and exercising its inquisitorial jurisdiction, the First-tier Tribunal should have considered the grounds fairly and, if necessary, sought clarification. The new Tribunal must proceed on the basis that it has jurisdiction and decide only whether the appeal has no reasonable prospect of success. It must also decide whether that issue should be determined on the papers or at an oral hearing.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s strike-out decision, and remitted the strike-out applications to a freshly constituted First-tier Tribunal.
• First-tier Tribunal (General Regulatory Chamber) (Information Rights): on 18 January 2023, struck out the appellant’s appeal against the Information Commissioner’s Decision Notice on the ground that it lacked jurisdiction.
• Information Commissioner: by Decision Notice dated 8 September 2022, found that Rotherham Metropolitan Borough Council had acted in accordance with Part I of the Freedom of Information Act 2000.