Tribunal Strikes Out Appeal in FOIA Request Case: Key Legal Principles and Outcomes Explored

Citation: [2023] UKFTT 1034 (GRC)
Judgment on

Introduction

In the case of Steven Paul Burke v The Information Commissioner ([2023] UKFTT 1034 (GRC)), the First-tier Tribunal (General Regulatory Chamber) on Information Rights deals with an appeal following a Freedom of Information Act 2000 (FOIA) request. The appellant, Mr. Burke, contested the Information Commissioner’s decision, which found that the Ribble Valley Borough Council did not hold any further information beyond what was already disclosed to him. This analysis explores key topics and legal principles at play within this case, as per the Tribunal’s findings.

Key Facts

Mr. Burke had requested information from the Ribble Valley Borough Council under the FOIA. Some information was not provided, which led him to seek an internal review and eventually complain to the Information Commissioner. Despite additional searches by the Council, Mr. Burke remained unsatisfied, believing that more should have been found. The Information Commissioner concluded that on the balance of probabilities, no further information was held by the Council, leading Mr. Burke to appeal to the First-tier Tribunal.

The Tribunal’s review centered around the correct application of legal principles related to FOIA requests and the subsequent appeals process. These principles include:

  1. Decision-making on the balance of probabilities: As discussed within the case, particularly at points [17] and [19], the Tribunal must decide on the existence of information based on the balance of probabilities. In the decided case law Bromley and others -v-Information Commissioner and the Environment Agency EA/2006/0072, it was established that when there is a dispute over the existence of information, the outcome is to hinge on what is most likely, rather than absolute certainty.

  2. Role of the Information Commissioner: The case underscores the Commissioner’s role in evaluating whether information requests have been properly addressed by public authorities as per the FOIA. The Tribunal’s analysis of the Commissioner’s actions, particularly in deciding whether the Commissioner ought to have exercised discretion differently, is pivotal ([10], [22]-[24]).

  3. Strike-out applications under Tribunal Procedure Rules: Rule 8(3)(c) of the 2009 Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules was central to this case. It allows the Tribunal to strike out proceedings deemed unlikely to succeed ([11]-[13]). This mirrors applications under CPR 3.4 in civil proceedings, requiring a realistic — as opposed to fanciful — prospect of success.

  4. Overriding objective: The Tribunal also considered Rule 2 of the 2009 Rules, which dictates that its overriding objective is to deal with cases fairly and justly ([14]).

Furthermore, this case references HMRC -v- Fairford Group [2014] UKUT 0329 and AW-v-Information Commissioner and Blackpool CC [2013] 30 ACC, which provide context for ruling on strike-out applications.

Outcomes

Based on the aforementioned legal principles, the Tribunal concluded:

  • There was no indication that the Council failed to meet FOIA obligations or deliberately withheld information ([18]).
  • The evidence did not show a realistic prospect that additional information exists or that the Information Commissioner should have taken different actions ([24]-[26]).
  • The appeal was therefore determined to have no realistic prospect of success and was struck out as per rule 8(3)(c) ([26]-[28]).

Conclusion

In Steven Paul Burke v The Information Commissioner, the Tribunal robustly applied established legal principles to determine the legitimacy of Mr. Burke’s appeal. Streamlining focus on the balance of probabilities, credibility of the public authority’s search, the Information Commissioner’s diligence in pursuing the complaint, and the Tribunal Procedure Rules, the Tribunal found that the appeal lacked a realistic prospect of success and was accordingly struck out. This case reinforces the legal standards that accompany the rights and obligations under the FOIA in the UK, elucidating the necessary burden of proof and procedural adherence required for an appeal to be successful.