Shibu Gangadharan v The Information Commissioner
[2024] UKUT 245 (AAC)
Ofqual v Information Commissioner
13 October 2023
[2023] UKUT 253 (AAC)
Upper Tribunal
A government agency (Ofqual) refused to release data about how a controversial algorithm affected A-level grades. A judge said the first court didn't explain its decision well enough, so they have to try again.
Key Facts
- •Appeal concerning Ofqual's refusal to disclose statistical information about the impact of the 2020 A-level grading algorithm under the Freedom of Information Act 2000 (FOIA).
- •The Information Commissioner ordered disclosure, Ofqual appealed to the First-tier Tribunal (FTT), which dismissed the appeal.
- •Ofqual appealed to the Upper Tribunal (UT), arguing the FTT failed to adequately reason its public interest balancing exercise.
Legal Principles
Public interest test under FOIA section 2(2)(b): In balancing public interest in maintaining an exemption against public interest in disclosure, the assessment is made at the time the public authority makes its decision.
Montague v Information Commissioner and Department for International Trade [2022] UKUT 104 (AAC)
No 'precautionary principle' mandates special treatment of evidence from the executive branch in FOIA appeals. Tribunals must assess all evidence based on general principles, considering any factors that enhance or detract from its quality.
R (Begum) v Special Immigration Appeals Commission [2021] AC 765, APPGER (No 1)
FOIA section 36(2)(c) exemption for information prejudicing the effective conduct of public affairs does not apply to statistical information (section 36(4)).
FOIA s.36
Outcomes
The Upper Tribunal set aside the First-tier Tribunal's decision.
The FTT failed to provide adequate reasons for its conclusion regarding the public interest balance, particularly concerning the value of the statistical information in informing the debate on the algorithm's fairness.
The case was remitted to the FTT for rehearing by a differently constituted panel.
To correct the FTT's error in failing to adequately justify its decision on the public interest balance.