Information Commissioner v Dr Gary Spiers and Garstang Medical Practice:[2022]UKUT 93 (AAC);[2023] AACR 3
Upper Tribunal Administrative Appeals Chamber decision by Judge Wright on 24 March 2022.
Read the full decision in
Judicial Summary
Reported as [2023] AACR 3
Information Rights; Tribunal Procedure and Practice; Rule 7A of General Regulatory Chamber Rules
A judge of the First-tier Tribunal upheld a registrar’s decision to join the Information Commissioner to proceedings between the two respondents to this appeal. The ruling was made in proceedings before the First-tier Tribunal in which Dr Spiers was applying for an offence of contempt to be certified by the First-tier Tribunal under rule 7A of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (“the GRC Rules”) against the Garstang Medical Practice.
The reasons the judge gave for joining the Information Commissioner to the proceedings were: the Information Commissioner was under a duty to promote the following of good practice by public authorities and, in particular, to perform his functions under section 47 of the Freedom of Information Act 2000 (“FOIA”) so as to promote the observance by public authorities of the requirements of FOIA, and as such was to be seen as the ‘regulator’ of public authorities within the context of FOIA; the Information Commissioner was not being required to make any investigation of his own, or on behalf of the First-tier Tribunal, about Garstang’s compliance with the decision notice which had been substituted by the First-tier Tribunal; the contempt application was one which could result in very serious consequences and in considering that application the First-tier Tribunal would want to consider the interests of Dr Spiers, Garstang and the other users of the First-tier Tribunal for whom maintaining the authority of the First-tier Tribunal was of importance, and it was therefore “in the interests of justice that the First-tier Tribunal had the benefit of submissions from the Information Commissioner given his role in upholding information rights in the public interest; as a party to the original proceedings that resulted in the decision of the First-tier Tribunal which Dr Spiers was alleging needed to be enforced, the Information Commissioner would be well placed to assist the First-tier Tribunal should matters arise in that regard and to direct that tribunal’s attention to any matters that would be relevant to the exercise of its discretion under section 61(4) of FOIA; Dr Spiers’s contempt application potentially raised novel and complex issues relating to the exercise of that discretion, which it would be of assistance to the First-tier Tribunal to have the submissions of the Information Commissioner as the independent regulator of information rights; and although the Information Commissioner would incur costs in becoming a respondent to the contempt application, those costs to the public purse did not outweigh the benefit to the First-tier Tribunal’s ability to deal with the application fairly and justly which would result from having the Information Commissioner’s input on it. The decision also required the Information Commissioner to make submissions on the rule 7A contempt proceedings within a certain period of time.
The Information Commissioner appealed to the Upper Tribunal.
Held, allowing the appeal, that:
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reading the word “proceedings” in the context of rule 7A of the GRC Rules and those rules more generally, including the definition of “party” in rule 1(3), the Information Commissioner was not a party to the rule 7A certification for contempt application brought by Dr Spiers and needed to be joined to those proceedings: paragraphs [25]-[28];
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a consideration of the case law in ML v Tonbridge Grammar School [2012] UKUT 283 (AAC), Roger Bell v Information Commissioner and Ministry of Justice [2012] UKUT 433 (AAC), CM v HMRC [2014] UKUT 272 (AAC), and Re Pablo Star Ltd [2017] EWCA Civ 1768, showed that requiring a person or body to be joined to proceedings without their consent ought only to arise where their interests or rights may be affected by the decision in issue: paragraphs [31]-[40];
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in joining the Information Commissioner to the rule 7A contempt application, without the consent of the Information Commissioner and against his express and, per Bell, clearly fully informed wishes, the First-tier Tribunal gave no consideration to whether the Information Commissioner’s rights or interests may have been affected by the proceedings, which failure was a clear and material error of law. Had that issue been addressed, there was no proper basis on which it could have been concluded that the Information Commissioner’s interests or rights were affected by Dr Spiers’s contempt proceedings. There was no dispute on the rule 7A application involving the Information Commissioner and there was no need for the Information Commissioner to be bound by the First-tier Tribunal’s decision whether to certify Garstang for contempt: paragraph [41];
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it is questionable whether the general nature of the duties under section 47 of FOIA required the Information Commissioner to be the regulator of information rights to enforce compliance by public authorities at all stages, given Information Commissioner v Moss and Royal Borough of Kingston Upon Thames [2020] UKUT 174 (AAC); [2021] AACR 7, but in any event the general nature of those duties leaves it for the Information Commissioner to decide what action he should take in any given situation to promote observance of FOIA: paragraphs [43]-[44].
Last updated 29 August 2023 + show all updates
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Decision selected for reporting as [2023] AACR 3
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First published.