Gerry Woodhouse v Information Commissioner

Under section 132(1)(c) of the Data Protection Act 2018, information previously made available to the public may remain within the public domain exception even if it is no longer available or was omitted from meeting minutes. The tribunal must make adequate findings about what information was actually available. It must also assess whether any separable part of withheld material can be disclosed without revealing protected information. Where a tribunal sees closed material unavailable to the requester, it must anxiously consider, on its own initiative if necessary, arguments the requester might make from that material. The Upper Tribunal observed, without deciding the point, that the relevant time for assessing disclosure may be the date of the authority’s response rather than the request.

Mr Gerry Woodhouse requested advice and communications between the Information Commissioner, acting in his regulatory capacity, and Potto Parish Council. The Information Commissioner’s Office refused the requests under section 44 of the Freedom of Information Act 2000, relying on the confidentiality prohibition in section 132 of the Data Protection Act 2018. The First-tier Tribunal dismissed Mr Woodhouse’s appeal against the decision notice: [2025] UKFTT 00638 (GRC).

Mr Woodhouse appealed, arguing that the tribunal had failed to consider partial disclosure of information sent by the Commissioner and whether information had previously been made available at public council meetings. The central issues were whether the First-tier Tribunal had adequately considered those matters and the arguments that could arise from material withheld from the appellant.

1. Appeal allowed. The First-tier Tribunal’s decision involved errors of law. The Upper Tribunal set it aside under section 12(2)(a), section 12(2)(b)(i) and section 12(3) of the Tribunals, Courts and Enforcement Act 2007, and remitted the case to a differently constituted tribunal.

2. The First-tier Tribunal and Commissioner had given a generic answer to whether the requested material was protected by section 132(1)(a) of the Data Protection Act 2018. The particular withheld material included quotations from published guidance and information that had appeared in council minutes. The tribunal therefore needed to consider whether any part could be disclosed without revealing protected information. The Upper Tribunal did not decide which parts, if any, were disclosable.

3. For section 132(1)(c), information available to the public at a council meeting before the authority considered disclosure could have been previously available to the public, even if it was absent from the minutes and no longer publicly available. The First-tier Tribunal needed to find how much of the withheld information had actually been revealed. Minutes could be summaries; the tribunal’s reasons did not explain why it concluded that no further detail had been disclosed. It also failed to address whether only part of the withheld material had been made public. The Upper Tribunal did not direct the First-tier Tribunal to draw any particular inference from the minutes, and noted that witness evidence might assist.

4. Where a tribunal can see closed material unavailable to the appellant, it must, consistently with the principles in Browning v IC and the Department for Business, Innovation and Skills [2014] EWCA Civ 1050, anxiously consider, on its own initiative if necessary, arguments the appellant or a representative might make if able to see that material.

5. As an observation only, and without having heard argument on the point, the Upper Tribunal said the ordinary meaning of “the time of the disclosure” might refer to the date the authority responds, rather than the date of the request. It noted that this was consistent with Maurizi v IC and CPS [2019] UKUT 262 (AAC) and the logic of Information Commissioner and another v O’Hanlon [2026] EWCA Civ 838. The remitted tribunal might need to address the issue.

1. Upper Tribunal (Administrative Appeals Chamber) — allowed the appeal, set aside the First-tier Tribunal’s decision and remitted the case for reconsideration by a fresh tribunal.
2. First-tier Tribunal (General Regulatory Chamber) (Information Rights) — dismissed the appellant’s appeal against the Information Commissioner’s decision notice: [2025] UKFTT 00638 (GRC), decision dated 4 June 2025.