Read the full decision in.
Tribunal procedure and practice – fair hearing – strike outs
Freedom of information – right of access – public interest
There was maladministration in the granting of planning permission for a development in a village, but the permission could not be withdrawn according to the legal advice obtained by the Department of the Environment (Northern Ireland). The appellant, a local resident, made a request under the Freedom of Information Act 2000 (FOIA) for a copy of the Department’s questions to its lawyers for that legal advice. The Department refused his request and the Information Commissioner (IC) upheld that response, on the basis of an exception to disclosure of internal communications between government departments under regulation 12(4)(e) of the Environmental Information Regulations 2004 (EIR) and alternatively that regulation 12(5)(b) applied. The appellant appealed against that decision to the First-tier Tribunal (F-tT) but failed to challenge either the legality of the notice or the Commissioner’s exercise of his discretion and instead raised matters over which the tribunal had no jurisdiction. The F-tT struck out the appellant’s appeal under rule 8(3) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (the F-tT Rules) as having no reasonable prospects of success but also held that the information was either exempt or an exception under the EIR and that the public interest in maintaining the exception outweighed the public interest in disclosing it. The appellant appealed to the Upper Tribunal (UT) and among the issues before it were whether the F-tT had failed in its inquisitorial obligation to look beyond the formal grounds of the appeal, to have regard to the overriding objective of dealing with cases fairly and justly or had erred in its approach to regulation 12(4)(e) and/or regulation 12(5)(b) of the EIR.
Held, allowing the appeal, that:
the power to strike out an appeal under rule 8(3)(c) was subject to the overriding objective of the F-tT to deal with cases fairly and justly (rule 2(2)(b)) and to ensure, so far as practicable, that the parties are able to participate fully in the proceedings (rule 2(2)(c)) (paragraphs 42 to 43);
in considering the use of the power to strike out an appeal under rule 8(3)(c), the F-tT must apply its knowledge of the law to the established facts, and it was not limited in its consideration of the facts by the arguments advanced by the appellant. But the tribunal was not required to investigate an issue that had not been the subject of argument by the appellant if, regardless of the facts found, the issue would have no prospects of success: Hooper v Secretary of State for Work and Pensions  EWCA Civ 495, reported as R(IB) 4/07 (paragraph 51);
“the appellant’s case” in rule 8(3)(c) was not synonymous with “the grounds on which the appellant relies” in rule 22(2)(g): Birkett v Department for the Environment Food and Rural Affairs  EWCA Civ 1606;  AACR 32. The F-tT’s role was not to review the decision of the Information Commissioner but to consider de novo the propriety of releasing the information. To be satisfied that an appeal had no reasonable prospect of success, the F-tT would need to be satisfied that on no legitimate view of the facts or the law could the appeal succeed (paragraphs 55 to 58);
the exemption under regulation 12(4)(e) of the EIR was engaged and the public interest in maintaining the exception outweighed the public interest in disclosing the information (no view was expressed as to whether the exception at regulation 12(5)(b) applied) (paragraphs 66 to 80).
The judge set aside the decision of the F-tT to strike out the appeal and upheld the decision of the Information Commissioner that the request for information had been correctly refused.