Case Law Analysis: UKFTT-GRC 2023 1058 Explores FOIA Appeal Jurisdiction Without Decision Notice

Citation: [2023] UKFTT 1058 (GRC)
Judgment on


The case “You Jay Lu v The Information Commissioner: UKFTT-GRC 2023 1058” revolves around the procedural intricacies of an appeal under the Freedom of Information Act 2000 (FOIA). Specifically, this decision issued by the First-tier Tribunal (Information Rights) addresses an administrative error in case numbering, the interpretation of a “decision” under FOIA, the limits of the Information Commissioner’s obligations, and the jurisdiction of the tribunal in the context of appeals. The tribunal’s analysis and application of legal principles to dismiss the appeal for lack of jurisdiction are crucial for understanding the procedural gateways and constraints in information rights litigation.

Key Facts

The core facts of the case involve an initial freedom of information request by You Jay Lu, which was deemed vexatious by a public authority, followed by a complaint to the Information Commissioner. The Commissioner, pursuant to section 50(2)(c) FOIA, concluded without issuing a decision notice that the complainant’s application was frivolous or vexatious. The appellant sought to challenge this decision, arguing it should be considered a substantive “Decision” under FOIA, thus permitting an appeal to the First-tier Tribunal.

The ruling revolves around the application of several sections of the FOIA, primarily section 50, which relates to applications for decisions by the Commissioner, and sections 57 and 58, which pertain to the tribunal’s appeal and powers respectively.

Section 50 FOIA

The judgment construed section 50 as enabling an individual to seek a decision on whether their information request has complied with Part I of the FOIA. However, the tribunal differentiates between a ‘Decision’ under section 50 and other determinations made by the Commissioner, which do not necessarily warrant the same procedural obligations, such as the issuance of a decision notice.

Frivolous or Vexatious Applications

Section 50(2)(c) provides the Commissioner with discretion not to proceed with a decision if the application is considered frivolous or vexatious. The tribunal confirmed that in such circumstances, the Commissioner is not required to issue a decision notice.

Decision Notices and Tribunal Jurisdiction

The fundamental legal principle at play is the limitation of the tribunal’s jurisdiction to cases where a decision notice has been served, as per section 57 FOIA. The ruling emphasizes that without such a notice, there is no right of appeal to the tribunal.

Judicial Discretion and Abuse of Power

The appellant’s contention that the Commissioner abused his discretion by refusing to issue a decision notice is addressed under the scope of sections 57 and 58 FOIA. The tribunal concluded that section 58, which lays out the tribunal’s powers, cannot be invoked to bypass the appeal requirements stated in section 57 – notably the necessity of a decision notice.


Judge Buckley declared that the First-tier Tribunal lacked jurisdiction to hear the appeal due to the non-existence of a decision notice. Without jurisdiction, the tribunal could not consider the substantive issues of the case, resulting in the appeal being struck out under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.


The case illustrates the significant procedural thresholds within FOIA litigation and reinforces the limited jurisdiction of the First-tier Tribunal (Information Rights). It clarifies that the tribunal cannot entertain appeals in the absence of a decision notice from the Information Commissioner, even when a judicial review might be possible. The administrative error in case numbering did not influence the legal outcome, as the tribunal grounded its decision in the specific provisions of FOIA. This case underscores for legal professionals the importance of understanding the preconditions for appealing to the Information Rights tribunal, primarily the necessity of a decision notice.

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