Balance of Probabilities in FOIA Requests: Dutton v Information Commissioner Case Analysis

Citation: [2023] UKFTT 949 (GRC)
Judgment on

Introduction

The case of Ian Dutton v The Information Commissioner & Anor ([2023] UKFTT 00949 (GRC)) examines the intricacies of information requests under the Freedom of Information Act 2000 (FOIA). The primary focus is on whether a public authority, in this case, Lincolnshire Police, holds information relevant to a FOIA request and the extent to which the Information Commissioner (IC) and the Tribunal adjudicate such matters. This article dissects the legal principles and the balance of probabilities test as they apply to information held by a public authority.

Key Facts

Ian Dutton requested information from Lincolnshire Police concerning the Chief Constable’s plans presented to the Police and Crime Commissioner, which influenced staffing decisions. The police claimed exemptions from disclosure under various sections of FOIA and ultimately did not disclose certain requested correspondence. Dutton contested the Information Commissioner’s decision, which supported the police’s claim of exemption, by appealing to the First-tier Tribunal (General Regulatory Chamber). He challenged the veracity of the police’s claim of non-existence of particular correspondences and argued for greater transparency and accountability.

The case analyses multiple legal principles, primarily around the “balance of probabilities” standard in determining whether information exists within the public authority’s records. The case references landmark decisions, including:

  1. Balance of Probabilities: Applying the normal standard of proof, the Tribunal and Information Commissioner assess whether information is likely to exist beyond that which has been revealed. This aligns with the Upper Tribunal’s stance in Preston v Information Commissioner and Chief Constable West Yorkshire Police and decisions such as Linda Bromley v Information Commissioner and Environment Agency.

  2. Information Not Held: The Information Commissioner and Tribunal rely on public authority affirmations that specific information is not held unless there is evidence of inadequate search, reluctance to search, or a motive to withhold information (Oates v Information Commissioner and Architects Registration Board).

  3. Section 31 Exemption: Section 31(a) and (b) of FOIA exempts information disclosure if it would likely prejudice law enforcement activities. The Information Commissioner found such exemptions relevant, and Dutton did not contest this part of the decision.

  4. Jurisdiction of the Tribunal: The Tribunal’s jurisdiction is confined to FOIA disclosure issues and does not extend to broader conduct or administrative considerations of a public authority’s operations.

Outcomes

The Tribunal struck out the appeal for two reasons:

  1. Mr. Dutton’s challenge on the ground of alleged undue credence given by the Information Commissioner to Lincolnshire Police’s denial of information was found to have no reasonable prospect of success.
  2. The remaining grounds of appeal and submissions were determined to be outside the Tribunal’s remit.

Conclusion

The Dutton case emphasizes the balance of probabilities as the standard for adjudicating the existence of information in FOIA cases. The Tribunal and Information Commissioner are not required to conduct exhaustive investigations into the existence of information unless there are clear signs of avoidance or deceit by the public authority. Furthermore, the Tribunal underscores its limited scope, highlighting that it is not the proper forum for disputing matters that fall outside the purview of information disclosure under FOIA. This decision reaffirms the established legal framework for handling and appealing FOIA requests within the UK’s regulatory chambers.