Information Commissioner v E Malnick and The Advisory Committee on Business Appointments: [2018] UKUT 72 (AAC)

Upper Tribunal Administrative Appeals Chamber decision by Judge Markus, Judge Wikeley and Judge Wright on 1 March 2018.

Read the full decision in GIA/447/2017.

Judicial Summary

  1. The FTT erred in law by taking into account matters of public interest when deciding whether an opinion of the qualified person was reasonable for the purpose of section 36(2) FOIA. Moreover the FTT’s decision that the qualified person’s opinion was not reasonable was irrational. Section 36(2) is concerned with substantive but not procedural reasonableness.

  2. In considering the public interest balancing test the FTT failed to ascribe any or appropriate weight to the qualified person’s opinion.

  3. When the FTT allows an appeal against a decision of the Information Commissioner, it must substitute a decision notice. it does not have power to remit the case to the Commissioner.

Published 3 April 2018