Taimur Khan v The Information Commissioner & Anor

When applying a public-interest test attached to an exemption, a tribunal must focus on factors that engage the exemption relied on. Its reasons must address the main disputed issues and material evidence sufficiently to explain the outcome. Later-emerging facts may be considered where they shed light on the grounds for refusing a request, including evidence capable of showing public interest at the time of refusal. Where errors in the public-interest assessment or reasons may have affected the result, a fresh hearing may be required.

Mr Taimur Khan asked Leeds City Council for a report prepared by PwC concerning work on special educational needs and disability improvement. The Council withheld the report. The First-tier Tribunal upheld the Information Commissioner’s decision that the exemption in section 43(2) of the Freedom of Information Act 2000 applied and that the public interest favoured maintaining it: [2025] UKFTT 01434 (GRC).

Mr Khan appealed, challenging the First-tier Tribunal’s public-interest assessment, reasons and treatment of evidence created after the Council refused the request. The Information Commissioner and the Council accepted that the decision contained material errors of law. Mr Khan sought an oral hearing and for the Upper Tribunal to remake the decision. The issues included whether the errors required the First-tier Tribunal’s decision to be set aside and, if so, whether the Upper Tribunal should remit the case or decide it itself.

1. Appeal allowed and case remitted. The Upper Tribunal found material errors of law in the First-tier Tribunal’s decision, set it aside under section 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007, and remitted the case for a full rehearing before a fresh panel. No judge or panel member previously involved may sit on the rehearing.
2. Public-interest balance. The focus when identifying factors favouring withholding information must be on factors that engage the exemption relied on: Hogan v IC EA/2005/0026. The First-tier Tribunal found that disclosure would prejudice PwC’s commercial interests, but then relied on effects on the Council’s service delivery when balancing the public interest. That was a misdirection about which factors could be considered, rather than merely a disagreement about their weight. The assessment under sections 43(2) and 2(2)(b) of the Freedom of Information Act 2000 therefore had to be reconsidered.
3. Reasons and evidence. Reasons need not address every item of evidence or every argument, but they must engage with the main disputed issues and evidence sufficiently to show the parties why they won or lost. The First-tier Tribunal did not address Mr Khan’s eleven stated reasons for disclosure or mention witness statements containing significant evidence. The Upper Tribunal was consequently not satisfied that the relevant factors and evidence had been considered or that the reasons explained the outcome.
4. Evidence arising after refusal. Facts that did not exist when a request was refused may be considered so far as they illuminate the grounds for refusal. The earlier Upper Tribunal decision in Montague v IC and Department of International Trade [2022] UKUT 104 (AAC) had not departed from the approach in R (Evans) v Attorney General [2015] UKSC 21 at [73]. A councillor’s demand for disclosure and a petition signed by 700 local parents were capable of evidencing public interest at the time of the request, even though that interest was expressed later. The First-tier Tribunal erred by discounting the evidence because it post-dated the Council’s response.
5. Other grounds and procedure. The First-tier Tribunal’s apparent misunderstanding of Mr Khan’s distinction between the Council’s financial and commercial interests contributed to inadequate reasons, but the misunderstanding was not shown to have materially affected the decision by itself. The alleged perversity in the weight given to speculative claims did not meet the perversity threshold. However, weaknesses in that reasoning contributed to the failures to consider relevant factors and give adequate reasons. The Upper Tribunal declined to remake the decision because the case required a complete rehearing of evidence, a full First-tier Tribunal panel was required, and remaking would remove an appeal tier and change the applicable permission and costs position. It decided the appeal on the papers under rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Mr Khan may request an oral hearing at the rehearing under rule 32 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

1. Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for material errors of law and remitted the case for a full rehearing before a fresh panel.
2. First-tier Tribunal (General Regulatory Chamber): Upheld the Information Commissioner’s decision that the section 43(2) exemption applied and that the public interest favoured maintaining it: [2025] UKFTT 01434 (GRC).