Category Archives: Upper Tribunal

May 7, 2025 · 7:17 am

FOIA contempt proceedings against University of Exeter

Non-compliance by a public authority with the provisions of the Freedom of Information Act 2000 is rarely a particularly serious matter for the public authority: a delay in responding, or a failure to disclose what should be disclosed, or wrong reliance on exemptions will at most normally only result in a public decision notice by the Information Commissioner’s Office (ICO), and there are hundreds of those issued each year, which pass with barely any attention.

Where it can get serious is where the public authority fails to comply with an order by the ICO, or where, upon a case having been appealed to the First-tier Tribunal (FTT), the FTT has made an order for disclosure. Sections 54 and 61, respectively, of FOIA, empower the ICO and the FTT to treat the failure to comply as offence of contempt of court, and certify the offence to the Upper Tribunal, which has the power to commit for contempt. In principle, as I understand it, the Upper Tribunal could, if it agreed there was a contempt, impose a period of imprisonment or a fine (the powers here are not contained in the Upper Tribunal Rules, but in YSA (Committal for contempt by media) [2023] UKUT 00075 (IAC), the Upper Tribunal (in a non-FOIA case) said that as the Upper Tribunal Rules do not expressly deal with contempt certifications, then the Upper Tribunal should, so far as it can, adopt the contempt provisions of part 81 of the Civil Procedure Rules.

I’m not aware of any FOIA case where the Upper Tribunal (or the High Court, which had the jurisdiction until the Data Protection Act 2018 amended FOIA and conferred jurisdiction on the Upper Tribunal) has actually made a contempt committal. But the latest case to make its way to the Upper Tribunal, to consider whether to do so, involves the University of Exeter. The University was asked under FOIA for the names of attendees, and the organisations they represented, at two University groups – the Exeter Community Panel and the Resident Liaison Group. The University refused, citing data protection concerns (and relying on the exemption at section 40(2) FOIA), and the ICO agreed. However, the FTT disagreed (these were public facing groups and attendees would have had no reasonable expectation that their names would be kept private) and ordered disclosure. This, however, the University did not do, and upon being chased by the applicant, indicated that at least some of the information no longer existed, because of (undocumented) oral right to be forgotten requests made by attendees after the FTT had ordered disclosure (which raised s77 FOIA questions). As the FTT pointed out, the University had supplied the withheld information to the ICO and to the FTT itself for the purposes of the original proceedings, and it was “less than credible that the Respondent cannot recover that information and provide it to the Applicant”.

The FTT was satisfied therefore, that this was a “wilful”, “flagrant” and continuing failure to comply with its order – “a contrived and persistent failure that is still ongoing”.

The FTT nonetheless still urged the University to fully comply with the order, as doing say “may mitigate any action taken by the Upper Tribunal”.

Compliance with FOIA is not voluntary for a public authority. Still less so is compliance with orders of a court.

The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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October 29, 2024 · 5:21 am

ICO, Clearview AI and Tribunal delays

[reposted from LinkedIn]

On 28 October the Information Commissioner’s Office (ICO) made the following statement in respect of the November 2023 judgment of the First Tier Tribunal upholding Clearview AI’s successful appeal of the ICO’s £7.5m fine, and posted it in an update to its original announcement about appealing:

The Commissioner has renewed his application for permission to appeal the First-tier Tribunal’s judgment to the Upper Tribunal, having now received notification that the FTT refused permission of the application filed in November 2023.

It is extraordinary that it has taken 11 months to get to this point.

So what does this mean?

If a party (here, the ICO) wishes to appeal a judgment by the First Tier Tribunal (FTT) to the next level Upper Tribunal (UT), they must first make an application to the FTT itself, which must decide “as soon as practicable” whether to grant permission to appeal its own judgment (rules 42 and 43 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009).

If the FTT refuses permission to appeal (as has happened here), the application may be “renewed” (i.e. made again) directly to the UT itself (rule 21(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008).

So, here, after 11 months (“as soon as reasonably practicable”?) the ICO has just had its initial application refused, and is now going to make an applicant under rule 21(2) of the UT Rules.

The ICO’s wording in its statement is slightly odd though: it talks of “having now received notification” that the FTT “refused” (not, say, “has now refused”) the November 2023 application. The tense used half implies that the refusal happened at the time and they’ve only just been told. If so, something must have gone badly wrong at the Tribunal.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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September 2, 2024 · 3:49 pm

Department for the Economy (Northern Ireland) v Information Commissioner and White (GIA/85/2021)

I wrote recently about the fact that a judgment in the Upper Tribunal, which the Information Commissioner cites in guidance, was not publicly available anywhere. The ICO had refused to disclose it in response to a Freedom of Information Act request and suggested the requester ask for a copy directly from the Tribunal.

I don’t know if the requester did, but I thought it would be helpful to do so, and upload it here. (Kudos to the Tribunal for the swift, helpful reply.)

I’m also going to contact Bailii, and see if they might host a copy as well.

GIA-85-2021.pdfDownload

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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August 26, 2024 · 8:00 am

Closed justice and the EIR

[reposted from LinkedIn]

The Upper Tribunal is an appellate court: its judgments create precedent, under the doctrine of stare decisis. For that reason, one might think that all of its judgments would be published – particularly ones that are cited by a regulator in its guidance. But that’s not the case.

The Information Commissioner’s Office (ICO) refers to an Upper Tribunal judgment – Department for the Economy (Northern Ireland) v Information Commissioner and White (GIA/85/2021) – in its guidance on the Environmental Information Regulations, but the judgment has never been openly published online (it’s possible one of the various paid-for online legal libraries has it – I haven’t checked).

The lack of easy access to judgments and other court documents in general (not just those in the Upper Tribunal) is one that has understandably exercised people for a number of years. Things have got much better in recent years, and the work of BAILII (British and Irish Legal Information Institute) and of people like Lucy Reed KC, Judith Townend and Paul Magrath at The Transparency Project has been key in advancing this core constituent of the principle of open justice. But there are still huge amounts of case law which are not readily available to the public.

For this reason I was struck by the ICO’s response to an FOI request for a copy of the judgment that they rely on to justify their own approach to the law. They point out to the requester that the only copy of the judgment they hold is a signed one from the court, and that it was “not intended for publication or wider disclosure”. They refuse to disclose it in reliance on the absolute exemption at section 32 of the Freedom of Information Act 2000 (FOIA) for information created by a court. What they don’t consider is – despite there being an exemption engaged – whether to exercise their discretion not to rely on it. In the circumstances, this would seem an obvious thing to do.

In fact, as the judgment is about the Environmental Information Regulations 2004, and it is used by the ICO to support its guidance on those regulations, it seems clear that the ICO should have dealt with the request also under the regulations. As they do not have an equivalent exemption to section 32 of FOIA, I cannot see the grounds for non-disclosure.

Instead, they suggest the requester asks for a copy from the Tribunal directly. Much better, and public-spirited, I would have thought – if they felt they shouldn’t or couldn’t directly disclose – would have been for the ICO to seek the permission of the Tribunal to disclose (or even better, to nudge the Tribunal to get it uploaded at https://www.gov.uk/administrative-appeals-tribunal-decisions).

The upshot of all this is that – regardless of whether the original requester does so – I’m going to contact the Upper Tribunal to ask for a copy, and when I get it, I’ll upload it to my personal blog. But I’m not convinced that’s really how open justice should operate.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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July 18, 2024 · 4:21 am

FOIA appeals in the UT: when is there an “error of law”?

Here is a good and interesting judgment in the Upper Tribunal from Judge Citron, on a Freedom of Information Act 2000 (FOIA) case arising from defects in the 2019 “11+” exam run by The Buckinghamshire Grammar Schools (TBGS), with test materials designed and supplied by a third party – GL Assessment Limited. TBGS, as a limited company made up of a consortium of state schools, is a public authority under s6(1)(b) FOIA (by way of s6(2)(b)).

The FOI request was, in broad terms, for the analysis that had subsequently been conducted into the defects, and the statistical solution that had been adopted.

TBGS had refused the request on grounds including that disclosure of the requested information would be an actionable breach of confidence. The ICO upheld this, and, on appeal, the First-tier Tribunal agreed, although only by a majority decision (the dissent was on the part of the judge, and it’s worth reading his reasons, at 85-90 of the FTT judgment).

Possibly bolstered by the vehemence of that dissenting view of the FTT judge, the applicant appealed to the Upper Tribunal.

Judge Citron’s judgment is a measured one, addressing how an appellate court should approach an argument to the effect that there was an error of law at first instance, with a run-through, at 35, of the authorities (unfortunately, from that point, the paragraph numbering goes awry, because the judgment, at “67”, follows the numbering of the judgment it has just quoted).

Judge Citron twice notes that a different FTT might have approached the facts and the evidence in a different way, and weighted them differently, but

that is no indicator of the evaluative judgement reached being in error of law…The question is whether the evaluative judgement…was one no reasonable tribunal could have reached on the evidence before it; it whether some material factor was not taken into account. I am not persuaded.

Therefore, the FTT had made no material error in dismissing the appeal.

A final note. This was a judgment on the papers, but – remember – the Information Commissioner will always be a party to FOIA cases, because it is his decision that is at issue. In this instance, the Commissioner chose not to participate. Paragraph 32 records that he was “directed” to make a response to the appeal, but did not. If this correctly records a failure by the Commissioner to comply with a direction of the court, it is surprising there’s no note of disapproval from the judge.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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June 17, 2020 · 6:24 pm

Upper Tribunal on enforcement of First-tier Tribunal FOIA decisions

What happens if a public authority does not comply with steps specified in a decision notice issued by the Information Commissioner under the Freedom of Information Act 2000 (FOIA)? Assuming that no appeal is brought by the authority, then section 54 of FOIA provides that, in such circumstances, the Commissioner may (not “must” – this is a power, not a duty) certify in writing to the High Court (or, in Scotland, the Court of Session) that the authority has failed to comply with that notice, and the court may (after inquiring into the matter) deal with the authority as if it had committed a contempt of court.

This much is, relatively, straightforward, but what happens if the Commissioner’s decision notice doesn’t specify steps the public authority should take – for instance (and most normally) where the Commissioner doesn’t uphold a complaint by the requester, and the latter appeals to the First-tier Tribunal (FTT), with the FTT subsequently upholding the appeal,  substituting its own decision for that of the Commissioner, and itself specifying steps to be taken by the public authority? In those circumstances, who is responsible for (or at least has the power of) enforcement of those steps? Is it the Commissioner, or the FTT itself?

This is not a hypothetical question – the FTT will frequently disagree with the Commissioner – sometimes, of course upholding an appeal by the public authority, but at other times upholding a requester’s appeal, and ordering the public authority to take steps which were not originally specified by the Commissioner. 

The answer, says the Upper Tribunal, in Information Commissioner v Moss and the Royal Borough of Kingston upon Thames [2020] UKUT 174 (AAC), is that it is for the FTT to enforce, on the (slightly circular sounding) grounds that it has the power to do so, and the Commissioner doesn’t.

The FTT’s power to enforce emanates from paragraph 61(4) of FOIA, which provides that where a person fails to do something, in relation to proceedings before the FTT on an appeal, and if those proceedings were (instead) proceedings before a court which had a power to commit for contempt, and the failure would constitute contempt (such as failing to comply with steps in a substituted decision) the FTT may certify the offence to the Upper Tribunal (in Moss, which related to matters before section 61 was amended by the Data Protection Act 2018, the power was to certify to the High Court, but nothing turns on this).

By contrast, for the Commissioner to control the enforcement of the FTT’s decision would be to offend the “fundamental constitutional principle” as enunciated by Lord Neuberger (in R (Evans) v Attorney General [2015] AC 1787 – also a FOIA case, of course) that “a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone” (including, one might add, by the Commissioner, upon exercise of her power (not, remember, her duty) to enforce her own decisions by certifying to the High Court).

In Moss Upper Tribunal Judge Jacobs did not have to decide who is responsible for enforcing a decision notice if the FTT dismisses an appeal against it (i.e. where the Commissioner’s original decision, and any specified and required steps are unchanged). He merely noted that “there is authority that, even if an appeal against a decision is dismissed, it thereafter derives its authority from the tribunal’s decision” (which to me, looks like strong obiter indication that he would have, if required to do so, found that the FTT, and not the Commissioner, would also have the enforcement power in those circumstances).

I can recall (purely anecdotally) occasions where successful appellants to the FTT have bemoaned subsequent failure by public authorities promptly to take the steps specified by the FTT in its decision. The position now seems clear – if those steps need enforcement to make them happen, it is to the FTT that the aggrieved requester should turn.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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September 23, 2015 · 4:55 pm

ICO discloses names of Operation Motorman journalists

In August this year the Upper Tribunal dismissed an appeal by the Information Commissioner’s Office (ICO) of a prior ruling that he must disclose the names of certain journalists who appeared on a list 305 names seized by the ICO during a raid in 2003 on the home of private investigator Steve Whittamore. The raid was part of “Operation Motorman”, an investigation which forms part of the background to the various civil and criminal proceedings generated by the phone-hacking scandals, and to the establishment of the Leveson Inquiry.

The names which have been ordered to be disclosed have now been provided by the ICO to the requester, the clearly indefatigable Chris Colenso-Dunne. Chris has kindly given the list to me, and I make it available in the attachment below. One name stands out in particular: Rebekah Wade (as she then was), now Brooks, who has always denied knowledge of the phone-hacking which took place while she was editor of the now defunct News of the World (and who was, of course, acquitted in 2014 of conspiring to hack phones when editor of that paper and of making corrupt payments to public officials when editor of The Sun, as well as of all other charges).

It is important to be aware, as the Upper Tribunal said, that presence on the list means nothing more than that the journalists in question

had commissioned Mr Whittamore to obtain information… The information did not carry with it any assertion as to the actual or alleged commission of any crime by those journalists [para 38]

No doubt the list will generate further comment, though.

ICO Motorman List

[this post was edited to remove a paragraph where I’d mistakenly taken the list to mean that Wade was working for “Femail” at the time]

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.


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October 25, 2014 · 11:48 am

DCMS consulting on lower threshold for “fining” spammers

UPDATE: 08.11.14

Rich Greenhill has spotted another odd feature of this consultation. Options one and two both use the formulation “the contravention was deliberate or the person knew or ought to have known that there was a risk that the contravention would occur”, however, option three omits the words “…or ought to have known”. This is surely a typo, because if it were a deliberate omission it would effectively mean that penalties could not be imposed for negligent contraventions (only deliberate or wilful contraventions would qualify). I understand Rich has asked DCMS to clarify this, and will update as and when he hears anything.

END UPDATE

UPDATE: 04.11.14

An interesting development of this story was how many media outlets and commentators reported that the consultation was about lowering the threshold to “likely to cause annoyance, inconvenience or anxiety”, ignoring in the process that the preferred option of DCMS and ICO was for no harm threshold at all. Christopher Knight, on 11KBW’s Panopticon blog kindly amended his piece when I drew this point to his attention. He did, however observe that most of the consultation paper, and DCMS’s website, appeared predicated on the assumption that the lower-harm threshold was at issue. Today, Rich Greenhill informs us all that he has spoken to DCMS, and that their preference is indeed for a “no harm” approach: “Just spoke to DCMS: govt prefers PECR Option 3 (zero harm), its PR is *wrong*”. How very odd.

END UPDATE

The Department of Culture, Media and Sport (DCMS) has announced a consultation on lowering the threshold for the imposing of financial sanctions on those who unlawfully send electronic direct marketing. They’ve called it a “Nuisance calls consultation”, which, although they explain that it applies equally to nuisance text messages, emails etc., doesn’t adequately describe what could be an important development in electronic privacy regulation.

When, a year ago, the First-tier Tribunal (FTT) upheld the appeal by spam texter Christopher Niebel against the £300,000 monetary penalty notice (MPN) served on him by the Information Commissioner’s Office (ICO), it put the latter in an awkward position. And when the Upper Tribunal dismissed the ICO’s subsequent appeal, there was binding authority on the limits to the ICO’s power to serve MPNs for serious breaches of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). There was no dispute that, per the mechanism at section 55A of the Data Protection Act 1998 (DPA), adopted by PECR by virtue of regulation 31, Niebel’s contraventions were serious and deliberate, but what was at issue was whether they were “of a kind likely to cause substantial damage or substantial distress”. The FTT held that they were not – no substantial damage would be likely to arise and when it came to distress

the effect of the contravention is likely to be widespread irritation but not widespread distress…we cannot construct a logical likelihood of substantial distress as a result of the contravention.

When the Upper Tribunal agreed with the FTT, and the ICO’s Head of Enforcement said it had “largely [rendered] our power to issue fines for breaches of PECR involving spam texts redundant” it seemed clear that, for the time being at least, there was in effect a green light for spam texters, and, by extension, other spam electronic marketers. The DCMS consultation is in response to calls from the ICO, and others, such as the All Party Parliamentary Group (APPG) on Nuisance Calls, the Direct Marketing Association and Which for a change in the law.

The consultation proposes three options – 1) do nothing, 2) lower the threshold from “likely to cause substantial damage or substantial distress” to “likely to cause annoyance, inconvenience or anxiety”, or 3) remove the threshold altogether, so any serious and deliberate (or reckless) contravention of the PECR provisions would attract the possibility of a monetary penalty. The third option is the one favoured by DCMS and the ICO.

If either of the second or third options is ultimately enacted, this could, I feel, lead to a significant reduction in the prevalence of spam marketing. The consultation document notes that (despite the fact that the MPN was overturned on appeal) the number of unsolicited spam SMS text message sent reduced by a significant number after the Niebel MPN was served. A robust and prominent campaign of enforcement under a legislative scheme which makes it much easier to impose penalties to a maximum of £500,000, and much more difficult to appeal them, could put many spammers out of business, and discourage others. This will be subject, of course, both to the willingness and the resources of the ICO. The consultation document notes that there might be “an expectation that [MPNs] would be issued by the ICO in many more cases than its resources permit” but the ICO has said (according to the document) that it is “ready and equipped to investigate and progress a significant number of additional cases with a view to taking greater enforcement action including issuing more CMPs”.

There appears to be little resistance (as yet, at least) to the idea of lowering or removing the penalty threshold. Given that, and given the ICO’s apparent willingness to take on the spammers, we may well see a real and significant attack on the scourge. Of course, this only applies to identifiable spammers in the domestic jurisdiction – let’s hope it doesn’t just drive an increase in non-traceable, overseas spam.

 

 

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October 22, 2014 · 4:58 pm

Upper Tribunal rules on complying “promptly” with an FOI request

The Upper Tribunal has ruled on what “promptly” means in the FOI Act. The answer’s no surprise, but it’s helpful to have binding authority

The Freedom of Information Act 2000 (FOIA) demands that a public authority must (subject to the application of exemptions) provide information to someone who requests it within twenty working days. But it goes a bit further than that, it says (at section 10(1))

a public authority must comply…promptly and in any event not later than the twentieth working day following the date of receipt

But what does “promptly” mean in this context? This issue has recently been considered by the Upper Tribunal, in John v ICO & Ofsted 2014 UKUT 444 AAC. Matters before the Information Commissioner (IC) and the First-tier Tribunal (FTT) had turned on when the initial request for information had been made and responded to. The IC held that Ofsted had failed to respond within twenty working days, and Ofsted appealed this. Mr John argued before the FTT that although the IC had found in his favour to the extent that it held that Ofsted had failed to respond within twenty working days, it had failed to deal with the issue of whether Ofsted had responded promptly. The FTT found in Ofsted’s favour, but did not, Upper Tribunal Judge Jacobs observed, deal with Mr John’s argument on promptness. That was an error of law, which Judge Jacobs was able to remedy by considering the issue himself.

“Promptly” he observed, has a range of dictionary meanings, some of which relate more to attitude (“willingly”, or “unhesitatingly”) and others more to time (“immediate”, or “without delay”). The context of section 10(1) of FOIA “is concerned with time rather than attitude, although the latter can have an impact on the former”. It is clear though that “promptly” does not mean, in the FOIA context, “immediately” (that, said Judge Jacobs, would be “unattainable”) but is more akin to “without delay”:

There are three factors that control the time that a public authority needs to respond. First, there are the resources available to deal with requests. This requires a balance between FOIA applications and the core business of the authority. Second, it may take time to discover whether the authority holds the information requested and, if it does, to extract it and present it in the appropriate form. Third, it may take time to be sure that the information gathered is complete. Time spent doing so, is not time wasted.

What is particularly interesting is that Judge Jacobs shows a good understanding of what the process for dealing with FOIA requests might be within Ofsted, and, by extension, other public authorities:

A FOIA request would have to be registered and passed to the appropriate team. That team would then have to undertake the necessary research to discover whether Ofsted held the information requested or was able to extract it from information held. The answer then had to be composed and approved before it was issued.

In the instant case all this had been done within twenty working days:

I regard that as prompt within the meaning and intendment of the legislation. Mr John has used too demanding a definition of prompt and holds an unrealistic expectation of what a public authority can achieve and is required to achieve in order to comply with section 10(1).

This does not mean, however, that it might not be appropriate in some cases to enquire into how long an authority took to comply.

The Upper Tribunal’s opinion accords with the approach taken in 2009 by the FTT, when it held that

The plain meaning of the language of the statute is that requests should be responded to sooner than the 20 working days deadline, if it is reasonably practicable to do so. (Gradwick v IC & Cabinet Office EA/2010/0030)

It also accords with the IC’s approach in guidance and decision notices under FOIA, and its approach under the Environmental Information Regulations 2004 (where the requirement is that “information shall be made available…as soon as possible and no later than 20 working days”).

Most FOI officers will greet this judgment as a sensible and not unexpected one, which acknowledges the administrative procedures that are involved in dealing with FOIA requests. Nonetheless, as a binding judgment of an appellate court, it will be helpful for them to refer to it when faced with a requester demanding a response quicker than is practicable.

Appeals and Cross Appeals

A further issue determined by the Upper Tribunal concerned what should happen if both parties to a decision notice disagree with some or all of its findings and want to appeal, or at least raise grounds of appeal: must there be an appeal and cross-appeal, or can the respondent party raise issues in an appeal by the other party? Judge Jacobs ruled, in a comprehensive a complex analysis that merits a separate blog post (maybe on Panopticon?), that “although cross-appeals are permissible, they are not necessary”

 

 

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August 21, 2014 · 7:46 pm

Red light for ICO spam text “fines”

A week ago I noted that the Information Commissioner’s Office (ICO) had effectively conceded that, since the Upper Tribunal’s decision in the Niebel case, it could not realistically serve monetary penalty notices (MPNs) on spam texters. I observed that

the result of the Niebel litigation has been to remove their powers to serve MPNs for spam texts, [with the ICO saying] it had “largely [rendered] our power to issue fines for breaches of PECR involving spam texts redundant”.

This perception has been reinforced by the press release today from the ICO, reporting a raid on a claims management call centre “thought to be connected to a spam text operation”. Information and hardware were seized in the raid, but the ICO says it

will now consider whether an enforcement notice compelling the organisation to comply with the rules regarding text marketing can be issued

Notably, no reference to an MPN is made. To recap, MPNs can be served under section 55A of the Data Protection Act 1998 to serve such a notice if there has been a serious contravention of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) of a kind likely to cause substantial damage or substantial distress. The Niebel litigation, in very broad terms, cast doubt on whether receiving spam texts could ever cause substantial damage or substantial distress (as opposed to, say, irritation).

Whether this Llanelli operation was in contravention of the law, and if so what sanctions will flow will no doubt be determined on the basis of the seized information and other information.

And although enforcement notices are serious sanctions, with breach of one being a criminal offence (although not a recordable one) whether people running spam texting operations see them as a real deterrent is another matter.

 

 

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