Jonathan Holden v The Information Commissioner
[2023] UKFTT 642 (GRC)
Talib Hussain v Information Commissioner & Anor
12 December 2023
[2023] UKFTT 1022 (GRC)
First-tier Tribunal
Someone asked the Financial Ombudsman Service a 'how' question. The Ombudsman said they didn't have that information and didn't have to create it. The Information Commissioner agreed. A judge agreed with the Commissioner and threw out the appeal because the question wasn't about finding existing information, but about getting an explanation, which isn't covered by the Freedom of Information Act.
Key Facts
- •Talib Hussain appealed the Information Commissioner's decision that the Financial Ombudsman Service did not hold the requested information.
- •The request was phrased as "How does...?", which was interpreted as a request for information outside the scope of the Freedom of Information Act 2000 (FOIA 2000).
- •The Respondent applied to strike out the appeal under rule 8(3)(c) of the Tribunal Rules, arguing it had no reasonable prospect of success.
- •The Information Commissioner upheld the Financial Ombudsman Service's position that it did not hold the requested information and was not obliged to create it.
Legal Principles
An application to strike out in the FTT under rule 8(3)(c) should be considered similarly to an application under CPR 3.4 in civil proceedings.
HMRC v Fairford Group (in liquidation) and Fairford Partnership Limited (in liquidation) [2014] UKUT 0329 (TCC)
Requests phrased as "who", "what", "where", "how", and "why" are usually requests for explanations, not recorded information under FOIA 2000.
Implied from the Tribunal's reasoning
There is no obligation under FOIA 2000 to create new recorded information to provide an explanation.
Implied from the Tribunal's reasoning and the Information Commissioner's decision
Outcomes
The appeal was struck out.
The appeal had no reasonable prospect of success because the request was for an explanation, not recorded information under FOIA 2000. The Tribunal determined it would be impossible to determine what information was requested and whether it was held.