Public Law Project v Information Commissioner

For the purposes of Freedom of Information Act 2000 section 31, whether disclosure is likely to cause real, actual and substantial prejudice is an evaluative judgment. A tribunal may rationally reach that judgment from the relevant context and the reasoned views of the public authority and Commissioner. It need not have evidence of comparable past evasion or adopt a stepped inquiry into whether each criterion could be gamed.

The statutory public-interest balance is objective. An inadequately explained ancillary consideration will not invalidate the decision where it was not material to the balance. The First-tier Tribunal’s appellate jurisdiction is confined to the Commissioner’s decision notice. It cannot determine a request which the Commissioner omitted from that notice.

Public Law Project sought information from the Home Office about the automated triage model used in the sham-marriage referral and investigation scheme. The Home Office disclosed some material but withheld six risk criteria under section 31 of the Freedom of Information Act 2000.

The Information Commissioner upheld the withholding. The First-tier Tribunal, under reference EA/2022/0228, dismissed PLP’s appeal. It found that disclosure would be likely to prejudice crime prevention or detection and immigration control, and that the public interest favoured maintaining the exemption. It also declined to determine PLP’s request for further information about nationality impacts.

PLP appealed on the sufficiency of the evidence and reasons, the public-interest balance, and the tribunal’s jurisdiction over the further-information request.

1. Appeal dismissed. The First-tier Tribunal made no error of law in upholding the section 31 exemption and its public-interest assessment.

2. The issue under section 31 was an evaluative judgment about the likely effect of disclosing the undisclosed triage criteria. The First-tier Tribunal could rely on the context of a statutory scheme directed at dishonest sham marriages, the involvement of organised criminal activity, and the reasoned opinions of the Home Office and Information Commissioner. It was rational to conclude that people involved in sham marriages could use the criteria to alter conduct, conceal information, or organise arrangements so as to evade detection. Neither the absence of comparable past examples nor the earlier disclosure of three criteria made that conclusion irrational.

3. The professors’ evidence did not directly address the undisclosed criteria or the likely response of those engaged in sham marriages. Their general caution against a broad approach to “gaming” did not require the First-tier Tribunal to adopt their proposed stepped analysis. The tribunal’s compressed reasons were adequate in context. Its reference to the Home Office’s expertise was an assessment of the weight of its reasoned view, not an abdication of the tribunal’s decision-making function. The approach was consistent with Flannery v Halifax Estate Agencies [2000] 1 WLR 377.

4. The public-interest balancing test under section 2(2) of the Freedom of Information Act 2000 was for the First-tier Tribunal to decide objectively. Its acceptance that indirect discrimination raised a public interest in transparency did not compel disclosure. Its insufficiently explained reference to GDPR rights and exemptions was not material because the tribunal had already treated the likely prejudice to immigration control as outweighing the public interest in disclosure.

5. Although the First-tier Tribunal gave an incorrect reason for excluding PLP’s further-information request, its result was correct. PLP had specified that request to the Commissioner, but the Commissioner’s decision notice did not decide it. Under sections 50 and 58 of the Freedom of Information Act 2000, the First-tier Tribunal’s jurisdiction was framed by that notice and it could not substitute a decision on an omitted request.

• Upper Tribunal (Administrative Appeals Chamber): dismissed PLP’s appeal and held that the First-tier Tribunal decision involved no error of law: [2024] UKUT 71 (AAC).
• First-tier Tribunal (General Regulatory Chamber): dismissed PLP’s appeal against the Information Commissioner’s decision notice, under reference EA/2022/0228, issued on 1 February 2023.