George Greenwood v The Information Commissioner & Anor

In the General Regulatory Chamber, an appellant may withdraw an appeal under rule 17 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, subject to the Tribunal’s consent. Where withdrawal would dispose of disputed proceedings, rule 32 generally requires an oral hearing unless every party has positively consented to determination without a hearing and the Tribunal can properly decide the matter without one. Consent is an adjudicative decision, not a rubber stamp. In deciding whether to consent, the Tribunal must address the consequences under the Freedom of Information Act 2000, including whether withdrawal would leave a Decision Notice in place which neither the public authority nor the Information Commissioner considers correct. The Tribunal’s section 58 jurisdiction is a full merits jurisdiction.

The Met Commissioner appealed to the First-tier Tribunal against an Information Commissioner Decision Notice requiring disclosure of a serious sexual offences problem profile, subject to personal-data redactions. During the appeal, the Met Police disclosed a more extensively redacted version, and both the Met Police and the Information Commissioner ceased supporting the original Decision Notice. The Met Police gave notice withdrawing its appeal under rule 17 of the General Regulatory Chamber Rules. Mr Greenwood opposed withdrawal and sought continuation of the appeal.

The First-tier Tribunal consented to withdrawal on the papers. Mr Greenwood appealed to the Upper Tribunal, arguing that the appeal could not be withdrawn in this way, that a hearing was required, and that the First-tier Tribunal had failed to consider material matters. The central issues were the meaning of “case” in rule 17(1), the interaction between rules 17 and 32, and the proper approach to consent to withdrawal.

1. Appeal allowed. The First-tier Tribunal’s decision consenting to withdrawal was erroneous in law, was set aside, and the Upper Tribunal remade the decision by refusing consent to withdrawal. The First-tier Tribunal was directed to give directions for the onward progress of the Met Commissioner’s appeal.
2. “Case” in rule 17(1) includes an appellant’s appeal, as well as all or part of a respondent’s response and applications made under the General Regulatory Chamber Rules. In a Freedom of Information appeal, the Met Police’s notice was therefore a request to withdraw its appeal. Rule 17(6) concerns the separate situation where the decision or act under appeal is withdrawn or revoked.
3. The First-tier Tribunal’s consent under rule 17(2) is a decision requiring adjudication. Where consenting to withdrawal ends the appeal proceedings, that decision disposes of the proceedings for rule 32(1). None of rule 32’s exceptions applied. Each party had not positively and actively consented to determination without a hearing. An absence of objection was insufficient. The First-tier Tribunal therefore had to hold an oral hearing.
4. The First-tier Tribunal also failed to address the Information Commissioner’s view that withdrawal was inappropriate. Withdrawal would leave the original Decision Notice, and its required steps, intact under section 50(6) of FOIA. A different Decision Notice could be substituted under section 58(1)(b) only if the appeal continued. The First-tier Tribunal had to grapple with that consequence, particularly given the Information Commissioner’s regulatory role.
5. The section 58 jurisdiction is a full merits reconsideration of the correct decision. It is not confined to reviewing the legality of the original Decision Notice and may take account of new arguments and exemptions raised during the appeal. The First-tier Tribunal also exercises an inquisitorial jurisdiction to ensure that FOIA is properly applied.
6. Mr Greenwood’s inability to enforce a possible future First-tier Tribunal order was irrelevant at the withdrawal stage. Enforcement proceedings under rule 7A are separate and arise only after an order has been made. The Upper Tribunal declined to decide the substantive section 58 appeal because the First-tier Tribunal had not yet decided it and remained the expert evaluative tribunal.

• First-tier Tribunal (General Regulatory Chamber): on 16 January 2024, consented on the papers to withdrawal of the Met Commissioner’s appeal under rule 17(2) of the GRC Rules.
• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision, refused consent to withdrawal, and directed the First-tier Tribunal to progress the outstanding appeal.