Tribunal Grants Strike-Out in Talib Hussain Case for Lack of Recorded Information, Highlighting FOIA 2000 Boundaries

Citation: [2023] UKFTT 1022 (GRC)
Judgment on

Introduction

The case of Talib Hussain v Information Commissioner & Anor [2023] UKFTT 1022 (GRC) addresses the application of the Freedom of Information Act 2000 (FOIA 2000) in relation to requests for recorded information and the protocols surrounding the strike-out of an appeal deemed bereft of reasonable prospects of success. This article analyses the key topics discussed in the ruling and elucidates the legal principles as applied by Judge Alison McKenna.

Key Facts

Talib Hussain, the applicant, filed an appeal against a Decision Notice dated 29 June 2023, by the Information Commissioner which found that the Financial Ombudsman Service (FOS) did not hold the requested information. The Respondents applied for a strike-out of the Notice of Appeal, asserting that it lacked any reasonable prospect of success. The Information Commissioner stated that the Financial Ombudsman Service should have clarified the request at the initial stage instead of refusing it based on the premise of non-existence of the requested information. Judge McKenna considered the applicant’s request for an oral hearing and submissions for the strike-out application, evaluating the need for a full hearing and the financial implications thereof.

The key legal principles in this case revolve around:

  1. Definition of ‘Recorded Information’: Reflecting on the nature of the appellant’s information request, the Tribunal highlights that a request phrased as “How does…?” typically goes beyond the scope of FOIA 2000, as such questions seek explanations rather than recorded information. This distinction establishes whether a request falls within the remit of FOIA 2000.

  2. The FOIA 2000 Obligation: The Tribunal clarified that the FOIA 2000 does not oblige parties to create new recorded information to satisfy an explanation requested, reiterating the legislation’s boundaries.

  3. Strike-Out Procedure: The case invokes the strike-out procedure under rule 8(3)(c), using the precedent set by HMRC v Fairford Group [2014] UKUT 0329 (TCC). The HMRC v Fairford Group case guides that the Tribunal must consider whether an appeal holds a realistic, as opposed to a fanciful prospect of succeeding at a full hearing, and avoid a “mini-trial.”

  4. Rule 2 – Overriding Objective: The Tribunal’s Rules emphasize fairness and justice in managing cases economically and expeditiously. Judge McKenna references this rule to affirm the strike-out’s alignment with the overarching intent of the Tribunal’s procedural rules.

Outcomes

The Tribunal granted the strike-out application, ruling that the Notice of Appeal should be struck out under rule 8(3)(c). The appeal was deemed to lack a reasonable prospect of success as the appellant’s request did not pertain to recorded information within the meaning of FOIA 2000. Hence, it could not be subject to a full hearing. Consequently, the Tribunal concluded that no properly directed Tribunal could allow this appeal based on the claim that such information was held by the FOS.

Conclusion

In Talib Hussain v Information Commissioner & Anor, the Tribunal meticulously applied legal principles relating to the scope of recorded information under FOIA 2000 and the mechanism of striking out an appeal. The ruling serves as a cautionary tale regarding the clarity required in information requests and underscores the importance of ruling out unfounded appeals at preliminary stages, sparing unnecessary costs and judicial resources. Legal practitioners should note the significance of articulating information requests within the bounds of FOIA 2000 and the high threshold that must be met to challenge a Decision Notice successfully.