When Information Commissioner (IC) Christopher Graham speaks, people listen. And so they should: he is the statutory regulator of the Freedom of Information Act 2000 (FOIA) whose role is “to uphold information rights in the public interest”. A speech by Graham is likely be examined carefully, to see if it gives indications of future developments, and this is the reason I am slightly concerned by a particular section of his recent speech at an event in Scotland looking at ten years of the Scottish FOI Act.
The section in question dealt with his envy of his Scottish counterparts. They, he observed, have relatively greater resources, and the Scottish Information Commissioner, unlike him, has a constitutional status that bolsters her independence, but also he envied
the simple and straightforward appeals mechanism in the Scottish legislation. The Scottish Commissioner’s decision is final, subject only to an appeal to the Court of Session on a point of law.
By contrast, in England, Wales and Northern Ireland, under section 57 of FOIA, there is a right of appeal to a tribunal (the First-tier Tribunal (Information Rights)). Under section 58(2) the Tribunal may review any finding of fact by the IC – this means that the Tribunal is able to substitute its own view for that of the commissioner. In Scotland, by contrast, as Graham indicates, the commissioner’s decision is only able to be overturned if it was wrong as a matter of law.
But there is another key difference arising from the different appellate systems: an appeal to the Tribunal is free, whereas in Scotland an application to the Court of Session requires a fee to be paid (currently £202). Moreover, a court is a different creature to a tribunal: the latter aims to “adopt procedures that are less complicated and more informal” and, as Sir Andrew Leggatt noted in his key 2001 report Tribunals for Users: One System, One Service
Tribunals are intended to provide a simple, accessible system of justice where users can represent themselves
It is very much easier for a litigant to represent herself in the Information tribunal, than it would be in a court.
Clearly, the situation as it currently obtains in England, Wales and Northern Ireland – free right of appeal to a Tribunal which can take a merits view of the case – will lead to more appeals, but isn’t that rather the point? There should be a straightforward way of challenging the decisions of a regulator on access to information matters. Graham bemoans that he is “having to spend too much of my very limited resources on Tribunals and lawyers” but I could have more sympathy if it was the case that this was purely wasted expenditure – if the appeals made were futile and changed nothing – but the figures don’t bear this out. Graham says that this year there have been 179 appeals; I don’t know where his figures are from, but from a rough totting-up of the cases listed on the Tribunal’s website I calculated that there have been about 263 decisions promulgated this year, of which 42 were successful. So, very far from showing an appeal to be a futile exercise, these figures suggest that approximately 1 in 5 was successful (at least in the first instance). What is also notable though, is the small but significant number of consent orders – nine this year. A consent order will result where the parties no longer contest the proceedings, and agree on terms to conclude them. It is speculation on my part but I would be very interested to know how many of those nine orders resulted from the IC deciding on the arguments submitted that his position was no longer sustainable.
What I’m getting at is that the IC doesn’t always get things right in the first instance; therefore, a right of appeal to an independent fact-finding tribunal is a valuable one for applicants. I think it is something we should be proud of, and we should feel sorry for FOI applicants in Scotland who are forced into court litigation (and proving an error of law) in order to challenge a decision there.
Ultimately, the clue to Graham’s disapproval of the right of appeal to Tribunal lies in the words “limited resources”. I do sympathise with his position – FOI regulation is massively underfunded by the government, and I rather suspect that, with better resourcing, Graham would take a different view. But I think his speech was particularly concerning because the issue of whether there should be a fee for bringing a case in the Tribunal was previously raised by the government, in its response to post-legislative scrutiny of FOIA. Things have gone rather quiet on this since, but might Graham’s speech herald the revival of such proposals?