Gregory Joseph Boswell v The Information Commissioner & Anor

A tribunal must construe a notice of appeal fairly, objectively and as a whole. It must make proper allowance for a litigant in person. A point pleaded in the grounds cannot rationally be treated as absent merely because another part of the form identifies a narrower outcome.

On an appeal concerning a decision notice, the First-tier Tribunal may determine whether communications were requests for information within section 1(1) of the Freedom of Information Act 2000. In exercising its broad discretion over amendments, it must focus on the real practical prejudice. It must consider the actual expansion of the issues and relevant earlier opportunities to identify the need for amendment.

The appellant made three information requests to the Office for National Statistics. The Office refused them as vexatious under section 14(1) of the Freedom of Information Act 2000. The Information Commissioner upheld that refusal.

The First-tier Tribunal, in [2024] UKFTT 00779 (GRC), held that the appeal concerned only the first request. It allowed the appeal concerning that request, but refused permission to amend the appeal in respect of the other two requests.

The appellant appealed on the grounds that his notice already challenged the treatment of the latter requests as freedom of information requests, and that the amendment refusal was erroneous. The Information Commissioner supported the appeal.

1. Appeal allowed. The First-tier Tribunal’s decision involved errors of law. Its determination that the first request was not vexatious was preserved, but the remaining issues were remitted to the same Tribunal.

2. The notice of appeal had to be construed fairly, objectively and as a whole, with proper allowance for its drafting by a litigant in person. Although the appellant had identified release of the first request as his desired outcome and had stated that he was limiting the appeal to it, the grounds expressly complained that the other two communications had been wrongly treated as freedom of information requests rather than subject access requests. The Commissioner and the First-tier Tribunal had both recognised that point. It was therefore irrational to hold that it had not been pleaded.

3. The First-tier Tribunal also had jurisdiction, when considering whether the Commissioner’s decision notice was in accordance with the law, to decide whether the two communications were requests for information within section 1(1) of the Freedom of Information Act 2000. The absence of reliance on section 40(1) did not remove that issue. If personal data were identified, the Tribunal would need to account for the public authority’s data-controller obligations when deciding the appropriate disposal.

4. The refusal of amendment was infected by the Tribunal’s mistaken view of the pleaded appeal. It failed to assess the extent to which the proposed grounds would truly expand the arguments or evidence. It also failed to consider adequately that earlier material had raised the two requests, and that a represented respondent might reasonably be expected to alert both a litigant in person and the Tribunal to a need for amendment. Those matters were relevant to the balance of practical prejudice.

5. The case was remitted to determine whether the two communications were requests within section 1(1), whether amendment should be permitted to challenge reliance on section 14(1), and any consequential issues. The Office for National Statistics’ application to be removed as a respondent was refused.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, preserved the First-tier Tribunal’s conclusion on the first request, and remitted the outstanding issues to the same Tribunal: [2025] UKUT 99 (AAC).
• First-tier Tribunal (General Regulatory Chamber): allowed the appeal concerning the first request but treated the other two requests as outside the appeal and refused amendment: [2024] UKFTT 00779 (GRC).