Paul John Calvert v Information Commissioner & Anor
[2024] UKUT 125 (AAC)
J Barrett v The Information Commissioner & Anor
20 April 2024
[2024] UKUT 107 (AAC)
Upper Tribunal
A man asked for government information, and the government refused. A lower court decided the case without showing him all the evidence, even though he asked to see it. A higher court ruled this was unfair, and ordered a new trial where the man gets to see all the evidence.
Key Facts
- •Mr. Barrett requested information from the Financial Ombudsman Service (FOS) relating to changes in DISP Rule 3.3.4AR.
- •FOS refused the request citing qualified exemptions under sections 36(2)(b)(ii) and (c) of the Freedom of Information Act 2000 (FOIA).
- •The Information Commissioner upheld FOS's decision.
- •Mr. Barrett appealed to the First-tier Tribunal (FTT), which determined the appeal on the papers without providing a 'gist' of closed material.
- •Mr. Barrett appealed to the Upper Tribunal (UT) arguing procedural unfairness.
Legal Principles
Freedom of Information Act 2000 (FOIA): Qualified exemptions from disclosure where public interest in maintaining the exemption outweighs public interest in disclosure (sections 1(1), 2, 36).
FOIA
Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (GRC Rules): Overriding objective to deal with cases fairly and justly, ensuring party participation (rule 2). Power to direct document provision (rule 5(3)(d)). Prevention of disclosure (rule 14).
GRC Rules
Senior President of Tribunals' Practice Statement: Delegation of functions to Registrars (2017, 2022 versions).
Practice Statement
Browning v Information Commissioner: Principles of fairness in FOIA cases using closed material procedures, including the provision of a 'gist' of closed material to minimize disadvantage to the appellant (even in paper appeals).
Browning v Information Commissioner [2014] EWCA Civ 1050
Outcomes
Appeal allowed.
The FTT erred in law by failing to adapt the Closed Material Procedure to ensure fairness to the appellant in a paper determination, particularly by not providing a 'gist' of the closed material despite repeated requests. The Registrar's refusal to allow submissions on rule 14(6) was also flawed.
FTT's decision set aside and remitted for redetermination.
The UT found procedural unfairness in the FTT's handling of the case, particularly regarding the lack of a 'gist' and the restriction on making submissions. A fresh determination is required.