Steven Paul Burke v The Information Commissioner
[2023] UKFTT 1034 (GRC)
Simon McGee v The Information Commissioner
2 October 2024
[2024] UKFTT 877 (GRC)
First-tier Tribunal
Someone appealed a decision about a request for information from a school. The court threw out the appeal because it dealt with issues they weren't supposed to handle, and because the argument about the missing information wasn't strong enough.
Key Facts
- •Simon McGee appealed a decision by the Information Commissioner (IC) regarding a Freedom of Information Act 2000 (FOIA) request to Uppingham Community College (UCC).
- •The IC's decision notice found that UCC breached FOIA sections 1(1)(a) and 10(1) but did not hold the requested information in parts 1 and 3.
- •McGee's appeal challenged the IC's failure to consider UCC's alleged non-compliance with FOIA timelines and systemic record-keeping issues.
- •The IC applied to strike out the appeal.
Legal Principles
The Tribunal's role under FOIA Section 58 is to review the legality of the IC's notice and the exercise of discretion, not the investigation process.
Section 58 FOIA
A strike-out application under Rule 8(3)(c) of the 2009 Rules requires assessing whether there's a realistic, not merely arguable, prospect of success. The Tribunal must avoid a 'mini-trial'.
HMRC -v- Fairford Group [2014] UKUT 0329, Swain v Hillman [2001] 2 All ER 91, ED & F Man Liquid Products v Patel [2003] EWCA Civ 472
Striking out under Rule 8(2)(a) is appropriate if the Tribunal lacks jurisdiction.
Rule 8(2)(a) 2009 Rules
In deciding whether information is held, the IC's acceptance of a public authority's 'not held' position can be appropriate absent evidence to the contrary. The question is resolved on the balance of probabilities.
IC's Response and Tribunal's reasoning
Outcomes
The appeal was struck out.
The Tribunal lacked jurisdiction over aspects of the appeal concerning UCC's investigation process, communications, and alleged systemic issues. Regarding the core challenge to the IC's decision on whether UCC held the information, the Tribunal found no reasonable prospect of success, given the IC's appropriate acceptance of UCC's assertion that it did not hold the relevant information.