Robert Moss v The Information Commissioner
[2023] UKFTT 609 (GRC)
Steven Paul Burke v The Information Commissioner
20 December 2023
[2023] UKFTT 1034 (GRC)
First-tier Tribunal
Someone asked a council for information. The council gave some but not all. A higher-up investigated and said there was no more. The person who asked appealed, but the court said the appeal was pointless and threw it out because there wasn't a good chance of winning.
Key Facts
- •Mr. Burke requested information from Ribble Valley Borough Council under the Freedom of Information Act 2000 (FOIA).
- •The Council provided some information but not all requested.
- •Mr. Burke complained to the Information Commissioner (IC), who issued a decision notice requiring further searches.
- •The Council subsequently disclosed additional information.
- •The IC concluded that no further information existed within the scope of the request.
- •Mr. Burke appealed the IC's decision notice to the First-tier Tribunal (General Regulatory Chamber).
- •The IC applied to strike out the appeal.
- •Mr. Burke did not respond to the IC's application.
Legal Principles
The Tribunal's role in an appeal under section 57 FOIA is to consider whether the Decision Notice is not in accordance with the law or if the Commissioner should have exercised a discretion differently.
Section 58 FOIA
A Tribunal may strike out proceedings if there is no reasonable prospect of the appellant's case succeeding (rule 8(3)(c) Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009).
Rule 8(3)(c) 2009 Rules
An application to strike out should be considered similarly to an application under CPR 3.4 in civil proceedings, assessing whether there is a realistic prospect of success, not merely an arguable one.
HMRC -v- Fairford Group [2014] UKUT 0329
The power to strike out should only be exercised in plain and obvious cases and involves a balancing exercise considering the interests of justice and the overriding objective of dealing with cases fairly and justly.
AW-v-Information Commissioner [2013] 30 ACC and Rule 2 2009 Rules
Where there is a dispute as to whether information exists, the Commissioner must resolve the question on the balance of probabilities.
Bromley and others -v-Information Commissioner EA/2006/0072
Outcomes
The appeal was struck out.
The Tribunal found there was no realistic prospect of the appeal succeeding. The Commissioner adopted the correct legal test (balance of probabilities), and there was no evidence the Council acted improperly.