Mark Armstrong v The Information Commissioner

Where the Information Commissioner decides a complaint on an exemption newly raised by a public authority without giving the complainant a chance to respond, the procedure is unfair. That defect does not itself entitle the First-tier Tribunal to allow an appeal or remit the complaint: it must reconsider the complaint afresh and decide whether the request complies with the Freedom of Information Act 2000. Article 6 does not require a fair hearing before the Commissioner where the Tribunal has full jurisdiction over the underlying statutory right. In reviewing an exemption balance, the Tribunal considers the information actually requested; a wider public interest in accountability does not necessarily establish a public interest in publishing individual officials’ email addresses. Permission to appeal requires an arguable material error of law with a realistic prospect of success.

Mark Armstrong requested the email addresses of Cleveland Police Force’s Chief Constable and three other senior officers. The Force first relied on the personal information exemption, then relied on the law-enforcement exemption during the Information Commissioner’s investigation. The Commissioner upheld the refusal without giving Mr Armstrong an opportunity to comment on the new exemption.

The First-tier Tribunal dismissed Mr Armstrong’s appeal, finding that the Force could rely on the exemption and that the public interest favoured maintaining it. It accepted that the Commissioner’s procedure was unfair but considered that it had no jurisdiction to allow the appeal on that basis. Mr Armstrong sought permission to appeal, arguing that the procedure breached Article 6 and that the Tribunal had misapplied the public-interest balance. The Upper Tribunal considered whether either ground disclosed an arguable material error of law. The FTT decision is reported at [2025] UKFTT 01531 (GRC).

Permission to appeal was refused. There was no arguable material error of law in the First-tier Tribunal’s decision.

1. Procedural fairness. The Commissioner acted unfairly by relying on the Force’s newly raised section 31 exemption without giving Mr Armstrong an opportunity to respond. Repetition of that failure could undermine confidence in the Commissioner’s impartial investigation of information-rights disputes. But the unfairness did not give the First-tier Tribunal jurisdiction to allow the appeal merely to mark its disapproval of the Commissioner’s procedure.
2. The Tribunal’s jurisdiction. The First-tier Tribunal must reconsider the complaint afresh. Its task is not judicial review of the Commissioner’s decision, and it may consider relevant material beyond that before the Commissioner. It cannot remit the complaint to the Commissioner; on appeal, responsibility for deciding the complaint rests with the Tribunal. The Upper Tribunal relied on Information Commissioner v Bell [2014] UKUT 106 (AAC), whose analysis was confirmed in IC v Malnick and ACOBA [2018] UKUT 72 (AAC); [2018] AACR 29, including its reference to Guardian Newspapers Ltd and Heather Brooke v Information Commissioner and British Broadcasting Corporation EA/2006/0011 and EA/2006/0013.
3. Article 6. If the statutory right to information under section 1 of the Freedom of Information Act 2000 is a civil right, Article 6 entitles Mr Armstrong to a fair hearing on that right before an independent and impartial tribunal. The First-tier Tribunal had full jurisdiction to determine whether the Force had complied with the Act. Article 6 did not require a separate fair hearing before the Commissioner. The principle was illustrated by Albert and Le Compte v Belgium (1983) 5 EHRR 533. Ramsahai v The Netherlands (2007) 46 EHRR 43 did not assist: Article 6 had been found inapplicable there, and the paragraph Mr Armstrong relied on was not in that judgment.
4. Public-interest balance. The Tribunal had to assess the public interests relating to the particular information requested: the officers’ email addresses, not information about Operation Magnolia itself. It recognised the strong public interest in police accountability, but that did not require it to find a public interest in making individual email addresses publicly available. It was open to the Tribunal to find that disclosure to the world would increase correspondence and distract senior officers from their law-enforcement duties. Its assessment of the balance under section 31 of the Freedom of Information Act 2000 was a matter for it and disclosed no arguable error of law.

Permission to appeal was refused.

• Upper Tribunal (Administrative Appeals Chamber) — refused the renewed application for permission to appeal: [2026] UKUT 269 (AAC) .
• First-tier Tribunal (General Regulatory Chamber) — dismissed Mr Armstrong’s appeal against the Commissioner’s Decision Notice: [2025] UKFTT 01531 (GRC).