Dr Tony Cutler v The Information Commissioner & Anor
[2023] UKFTT 85 (GRC)
Dr T Cutler v Information Commissioner & Anor
12 April 2024
[2024] UKUT 119 (AAC)
Upper Tribunal
Dr. Cutler asked the EHRC for information, but the Information Commissioner said the EHRC didn't have to give it. A court said the request wasn't clear enough, so the appeal was dismissed. A higher court agreed the request was unclear, and so dismissed it again.
Key Facts
- •Dr. T Cutler (Appellant) made a request for information under the Freedom of Information Act 2000 (FOIA) to the Equality and Human Rights Commission (EHRC).
- •The request concerned the EHRC's report on antisemitism in the Labour Party, specifically questioning the phrasing and potential drafting errors in a section referencing Ken Livingstone's comments.
- •The EHRC stated it did not hold the information requested.
- •The Information Commissioner rejected Dr. Cutler's complaint.
- •Dr. Cutler appealed to the First-tier Tribunal (FTT), which struck out the appeal, finding the request insufficiently particularized.
- •Dr. Cutler appealed to the Upper Tribunal (UT), arguing the FTT erred in law by striking out the appeal on grounds not raised by the respondents and without giving him a chance to respond.
- •The Information Commissioner supported the appeal, while the EHRC did not concede an error of law.
Legal Principles
A tribunal makes a procedural error amounting to an error of law if it's capable of materially affecting the outcome or fairness of proceedings.
R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982
A tribunal may strike out proceedings if there's no reasonable prospect of success (rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009).
Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009
A 'request for information' under FOIA must be in writing, state the applicant's name and address, and describe the information requested (section 8(1) of FOIA).
Freedom of Information Act 2000
Outcomes
The Upper Tribunal allowed the appeal.
The First-tier Tribunal erred in law by striking out the appeal on grounds not raised by the respondents and without giving the Appellant an opportunity to respond. The UT found the Appellant's communication did not constitute a request for information under FOIA.
The First-tier Tribunal's decision was set aside.
The FTT's decision involved an error on a point of law due to a breach of natural justice.
The Upper Tribunal remade the First-tier Tribunal's decision, striking out the appeal.
The Appellant's communication did not meet the requirements of a 'request for information' under FOIA, lacking a sufficient description of the information sought. Therefore, the appeal had no reasonable prospect of success.