Imogen Bickford-Smith v Information Commissioner

On an appeal from a specialist tribunal, the Upper Tribunal must respect the tribunal’s primary fact-finding role and expertise. Appellate intervention requires an identifiable error of law, a fundamental misunderstanding of the issue or evidence, or a conclusion outside the range of reasonable disagreement. An evaluative balancing exercise is not to be conducted afresh.

Under the Environmental Information Regulations 2004, the three-stage analysis for disclosure of personal data under Article 6(1)(f) of the UK GDPR requires consideration of legitimate interest, necessity and balancing. The weight given to data subjects’ reasonable expectations is ordinarily a factual evaluation. A comparison with a different statutory regime may have limited relevance where the regimes and information sources are materially different.

The appellant sought information from the Rural Payments Agency about agricultural subsidies paid to farmers grazing livestock on New Forest common land. Addresses and County Parish Holding numbers were withheld under regulation 12(3) of the Environmental Information Regulations 2004.

The Information Commissioner considered the disclosure necessary but concluded that the data subjects’ rights and freedoms prevailed. The First-tier Tribunal agreed that disclosure was not necessary and also upheld the balancing conclusion: [2024] UKFTT 00522 (GRC). The appellant appealed, alleging factual error and failures in the balancing assessment. The central issue was whether the First-tier Tribunal had made a material error of law.

Appeal dismissed. The First-tier Tribunal’s decision contained no material error of law.

1. Appellate review. In a specialist jurisdiction, the first-instance tribunal remains the primary fact-finder. The appellate court must recognise its expertise and should not interfere merely because it might have reached a different factual or evaluative conclusion. Intervention requires a fundamental misunderstanding of the issue or evidence, failure to take material evidence into account, an identifiable error of law, or a conclusion outside the bounds of reasonable disagreement. The appellate court does not conduct a balancing exercise afresh.
2. Necessity. Even assuming that the First-tier Tribunal misunderstood whether the appellant knew the names of subsidy recipients, that misunderstanding was immaterial. The tribunal gave four independent reasons why disclosure was unnecessary: scrutiny would still require the farmers’ co-operation; most relevant farmers did not receive the relevant payment or received only an anonymous low payment; the funding system was being phased out; and other bodies had wider responsibility and access to information concerning New Forest sustainability.
3. Balancing. The First-tier Tribunal was entitled to treat the data subjects’ reasonable expectations as a factual matter. Data subjects may understand that information supplied to a public authority could be subject to freedom of information legislation while still reasonably expecting residential and business details not to be disclosed to the public at large.
4. Comparative statutory regimes. The availability of common-land registers elsewhere in England had limited value. Those arrangements arose under the Commons Registration Act 1965 and the Commons Act 2006, whereas the New Forest was exempt from the 1965 regime and the relevant data were generated through a distinct proxy-rights methodology. The comparison did not concern like with like.
5. The presumption in favour of disclosure under regulation 2(2) of the EIR did not alter the result because the interests were not evenly balanced. A previous first-instance decision concerning a similar request was not a precedent and did not control the appeal.

1. Upper Tribunal (Administrative Appeals Chamber) — appeal dismissed; the decision of the First-tier Tribunal was upheld.
2. First-tier Tribunal (General Regulatory Chamber) — appeal against the Information Commissioner’s decision dismissed: [2024] UKFTT 00522 (GRC).