The Home Office v The Information Commissioner and Cobain (Information rights : Freedom of information - absolute exemptions) [2014] UKUT 306 (AAC)

UKUT-AAC

The Home Office v The Information Commissioner and Cobain (Information rights : Freedom of information - absolute exemptions)

[2014] UKUT 306 (AAC) · 2014-07-02

The INTERIM DECISION of the Upper Tribunal is to allow the appeal.

The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 30 January 2013, in relation to the Appellant’s appeal against Decision Notice FS50411501, involves an error on a point of law and is set aside.

The Tribunal’s decision involves an error of law because of(i) the inadequacy of the Tribunal’s reasons (the Home Office’s Ground (3)); and

(ii) its failure to consider the exercise of the steps discretion (the Information Commissioner’s argument). The directions that follow invite the parties to make further submissions on the appeal.

Further Directions

(1) The First Respondent (the Information Commissioner) is to make a further written submission addressing the two remaining issues: (i) should the matter now be remitted to the First-tier Tribunal or be decided by the Upper Tribunal?; and (ii) how should the section 50(4) steps discretion be exercised and why? That submission should be sent to the Upper Tribunal office within 21 days of the date of issue of this interim decision.

(2) The Second Respondent (Mr Cobain) will then have 21 days in which to make his further written submission on those two questions.

(3) Finally the Appellant (the Home Office) will likewise have 21 days to make its further written submission on those two questions.

(4) The matter will then be referred back to me for further directions or decision as appropriate.

(5) The time limit for appealing the substantive findings in this Interim Decision on Grounds (1) and (3) and on the cross-appeal will not begin to run until the Upper Tribunal has made a final decision on the appeal as per Direction (4) above.

REASONS

The issue in this appeal

1. This is an appeal in which the main issue can be expressed by way of an algebraic equation: x + y = z . The conundrum that has to be answered is this. If z = 13, as it undoubtedly is, and the figure represented by x is subject to an exemption against disclosure under the Freedom of Information Act 2000 (FOIA), but there is no such FOIA exemption applicable to figure y (as the First-tier Tribunal found), is the requester (and so the public at large) able to know what y is?

2. The First-tier Tribunal (“the Tribunal”), having found that the requester is not entitled to know what x is and that he is entitled to know what y is, concluded that y must be revealed to him. However, did that decision involve an error of law, by failing to address the fact that, as the number z is already in the public domain, the release of y (in accordance with FOIA) will necessarily reveal x (in breach of FOIA)? My conclusion is that t he Tribunal should have considered the exercise of the “steps discretion” under section 50(4) of FOIA in determining whether to direct the public authority to take any particular steps, and if so what steps (e.g. such as the disclosure or non-disclosure of y ).

3. This is an interim rather than final decision. I deal later with the next steps in this appeal .

What are x, y and z ?

4. In this appeal the figure x represents the number of orders by the Home Secretary depriving an individual of British citizenship and made between 1 January 2006 and 12 July 2011 on either counter-terrorism (“CT”) grounds or other national security (“NS”) grounds.

5. The figure y stands for the number of deprivation orders made over the same period on the basis that such action “was conducive to the public good for reasons unconnected with national security” (or “CPG” grounds).

6. The sum of x and y is z . Putting it another way, (CT + NS) + CPG = z . It is a matter of public record that z is 13. We know this because of an answer to a Parliamentary Question (see e.g. Hansard , HC Debs., Vol. 530, col. 1135W, July 5, 2011). It follows, given that the number represented by z is in the public domain, that if you are told what y is, you do not need to be an arithmetical genius to work out what x is. But at present all we know is that x and y both fall somewhere in the range from 0 to 13 and must sum to 13 (or z ). At this point a slight detour into the realm of citizenship legislation is necessary to provide some context to the present FOIA request.

The citizenship legislation

7. Citizenship legislation does not in terms distinguish between the three categories represented by x, y and z . In broad terms section 40 of the British Nationality Act 1981 provides that the Home Secretary may make an order depriving a person of their British citizenship if she is satisfied that:

• either it would be conducive to the public good to deprive the person of their British nationality and to do so would not render them stateless (section 40(2) and (4));

• or the person acquired their citizenship through naturalisation or registration, and it was obtained by means of fraud, false representation or the concealment of any material fact (section 40(3)).

8. The present case is not concerned with the latter class of deprivation orders based on fraud, false representation or concealment of material facts under section 40(3). However, whichever basis is used, the Home Secretary must first issue the individual concerned with a written notice (a “Notice of Intention”, or “NoI”) informing that person of her intention and the reasons for the proposed order (section 40(5)). There is a right of appeal under section 40A against such an order to the Special Immigration Appeals Commission (SIAC).

9. The British Nationality Act 1981 has always included powers to deprive a person of British citizenship, although these powers have been modified over time and were originally little used (as at February 2002, the last time the equivalent power in earlier legislation had been used was as long ago as 1973: see Deprivation of citizenship and withdrawal of passport facilities - House of Commons Library Standard Note SN/HA/6820, February 2014, p.4). The current version of section 40 of the British Nationality Act 1981 is as amended by section 56 of the Immigration, Asylum and Nationality Act 2006, passed in the wake of the July 2005 London bombings.

10. The previous version of section 40(2) (as substituted by section 4 of the Nationality, Immigration and Asylum Act 2002) had provided for a deprivation order to be made where the person had done something “seriously prejudicial to the vital interests” of the UK or its overseas territories. The new (and, on the face of it, lower) threshold, as amended by the 2006 Act, enables the Home Secretary to make an order if satisfied that “deprivation is conducive to the public good”.

11. The generic expression “conducive to the public good” is not defined by legislation, but is understood by official guidance to mean depriving a person of citizenship in the public interest on the grounds of involvement in terrorism (CT), espionage (NS) or serious organised crime, war crimes or other unacceptable behaviour (CPG) (Home Office, Nationality Instructions , Vol. 1, ch. 55, para. 55.4.4).

12. In recent years there has been increasing use of powers to deprive persons of British citizenship (and also to withdraw passport facilities), particularly in respect of persons who may be intending to engage in armed conflict, extremist activity or terrorist training overseas. The scope of section 40(4) (as regards the question of statelessness) has been before the Supreme Court ( Secretary of State for the Home Department (Appellant) v Al-Jedda (Respondent)

[2013] UKSC 62

. Deprivation of citizenship has also been analysed in the literature (e.g. E Fripp, “Conducive Deprivation of British Citizenship Status and Statelessness: Further Problems”, (2013) 27 IANL 315). The matter remains high on the current political agenda, with further amendments to section 40 having been made recently by section 66 of the Immigration Act 2014. It is against this developing background that the current request was made.

The information request

13. Mr Ian Cobain is a journalist with the Guardian newspaper. On 15 June 2011 he made a detailed five-part request under FOIA to what was then the UK Border Agency (or UKBA; the full request is set out at paragraph [2] of the First-tier Tribunal’s decision (EA/2012/0129)). The Home Office - the relevant public authority for this purpose - provided information in response to the first four limbs of the request.

(v) of the request was in these terms:

“(v) The number of occasions when an order has been made because the individual has known or suspected terrorist connections or intent, as opposed to orders made as a result of other national security concerns, or because the Home Secretary concluded that such a measure was conducive to the public good for reasons unconnected with national security”.

14. The Home Office refused to disclose the information sought under limb (v) on the basis that it was personal data and so exempt under section 40(2) of FOIA. Mr Cobain complained to the Information Commissioner. On 23 May 2012 the Commissioner issued a Decision Notice ( FS50411501) ruling that the disputed information was not personal data and accordingly was not exempt, so requiring its disclosure. The Home Office appealed to the First-tier Tribunal, now changing horses to argue that the disputed information was exempt as it fell within section 23(1) of FOIA. This was on the basis that the information related to, or had been directly or indirectly supplied by, one of the security bodies named in section 23(3) (which includes the Security Service (MI5)). The Information Commissioner supported the Home Office’s appeal on this alternative ground.

The First-tier Tribunal’s decision

15.

(I) and (II) have been added for the purposes of exposition):

“(I) The number of Deprivation Orders made on counter-terrorist and/or national security grounds between 1 st January 2006 and 12 th July 2011 are exempt from disclosure under section 23(1) FOIA.

(II) The number of Deprivation Orders, if any, made under section 40(2) of the British Nationality Act 1981 (as amended) on other grounds during the same period are not subject to the exemption and should be disclosed.”

16. The Tribunal also directed the Home Office to disclose the disputed information under head (II) within 35 days. The Tribunal’s reasoning can be summarised as follows.

17. First, the disputed information could be broken down into its constituent parts ( x and y ) and the number of any deprivation orders made on CT and/or NS grounds (i.e. x ) did relate to the security bodies (in particular the Security Service) and so was subject to the absolute exemption from disclosure in section 23(1) of FOIA.

18. Second, it was accordingly unnecessary to decide whether that element of the information had also been (indirectly) supplied to the Home Office by such bodies.

19. Third, the number of any deprivation orders made on the residual CPG grounds neither related to, nor was directly or indirectly supplied by, any of the security bodies, and so was not exempt from disclosure.

20. The key passage in the Tribunal’s reasoning read as follows:

“Is the exemption engaged for the disputed information?

34. The Home Office issued 13 NoIs with reasons for the decision to deprive citizenship. The Home Secretary then issued 13 Deprivation Orders. The request is for a numerical breakdown of these 13 cases in either two or three categories whichever way the request is interpreted. This is the relevant information in this case. The Security Service did not make the orders, or determine the grounds on which they should be made, and then pass the numbers on to the Home Office. This is the function of the Home Office and Home Secretary.

35. The requested breakdown is not a piece of information as such which has been supplied directly by a security body to the Home Office. In these circumstances can section 23(1) be engaged?

36. It was common ground between the parties that the Security Service will always be involved in some way in the process leading to a deprivation order on counter terrorism grounds and most likely to be involved in other cases where the grounds relate to other national security concerns, such as espionage. We can conclude therefore on a balance of probabilities that the decision of the Home Secretary would in some way be based on information provided by the Security Service. This finding appears to us to be commonsense.

37. However does this mean that a section 23(3) body has supplied directly or indirectly the parts of the disputed information involving national security? The evidence appears to us to suggest, again on a balance of probabilities, that the disputed information is contained in the NoIs and the Deprivation Orders. Therefore in itself it was not supplied directly by the Security Service. Whether it was supplied indirectly is uncertain. However we do not need to concern ourselves with making a finding on this limb of section 23(1). This is because it is clear to us on the evidence in this case that the information requested on national security cases relates to the Security Service. This is not a remote possibility. The Security Service has a, or even the, key role in protecting our national security. It would be inconceivable that the issuing of a deprivation order on the grounds of national security, particularly terrorism, would not relate in a significant way to the Security Service.

38. Mr Cobain argues that it is plain that the provision of the requested numerical breakdown is not going to lead to the disclosure of any information about the Security Service which is not already in the public domain. Therefore, he says, taking a purposive approach the disputed information cannot be subject to the exemption. The application of section 23(1) requires us to decide whether the disputed information was ‘supplied by,... or relates to’ a security body. The purposive approach we adopt is the one explained in paragraph 16 above particularly as prescribed by the House of Lords in CSA . Mr Cobain’s argument would be relevant to the application of a public interest test but we are dealing with an absolute exemption in this case.

39. Therefore we find that for two parts of the request (CT and NS) that the exemption is engaged.

40. However for the other part [CPG] the above analysis may not be helpful. There is no evidence to suggest that the Security Service instigate or advise on deprivation cases other than those involving national security. In evidence we heard they may be one of the stakeholders consulted particularly before the NoI is issued. We find based on the evidence in this case that, on the balance of probabilities, the Security Service did not supply directly or indirectly any information in relation to this part of the request. The connection might be if they were consulted as a stakeholder which in this context i.e. deprivation of citizenship on grounds unconnected to national security would be more as a matter of formality and here we find, again on a balance of probabilities in this particular case, that this is too remote to bring the number of cases (if any) where the order was on CPG grounds within the exemption on the basis that they relate to the Security Service.

41. We have provided a confidential annex to this decision which explains our findings in more detail based on the closed evidence given.”

The proceedings before the Upper Tribunal

21. The Home Office now appeals to the Upper Tribunal, permission having been given by the First-tier Tribunal. In its application for permission to appeal made to the tribunal below, the Home Office set out three grounds of appeal, namely that the Tribunal had materially misdirected itself in law(1) in its approach to the “relates to” limb of section 23(1);

(2) in its approach to the “supplied by” limb of section 23(1); and

(3) in its failure to give adequate reasons for its decision, either in its open decision or in the confidential annex. The Home Office has since abandoned ground (2).

22. The central thrust of the Home Office’s appeal was that the Tribunal’s disaggregation of z into the separate categories of x and y was impermissible. Thus the three numbers of orders based on CT, NS and CPG grounds respectively “are inextricable constituent parts of a single, known whole and they therefore cannot be disaggregated - disclosure of the numerical value of any one inevitably discloses the numerical value of the others” (notice of appeal, para. 5.3). Thus, it was argued, the Tribunal’s distinction between heads (I) and (II) in the substituted Decision Notice was “self-contradictory and self-defeating”.

23. The Information Commissioner adopts a neutral stance on the substantive issues in the Home Office’s appeal but raises a new procedural point. The Commissioner argues that if the Tribunal was correct in finding that the number of deprivation orders made on CPG grounds was not exempt information (head (II) of its substituted Decision Notice), then it followed that the Home Office had not complied with the duty to disclose under section 1(1)(b). Ordinarily, it would follow that the relevant information should be released. However, the Commissioner further submits that there is a discretion (rather than a duty) under section 50(4) to specify steps that the public authority must follow. The present case, he argues by analogy with Information Commissioner v HMRC and Gaskell

[2011] UKUT 296 (AAC)

; [2011] 2 Info LR, was an exceptional case in which no such steps should be specified. This was because the disclosure of the number of CPG deprivation orders (the non-exempt information in head (II)) would necessarily disclose the number of deprivation orders on CT/NS grounds (the very information which the Tribunal had decided was exempt under head (I)). I refer to this as the “steps discretion” argument.

24. Mr Cobain resists the Home Office’s appeal. In summary, his submissions are as follows. First, given its findings on the application of section 23(1) to the various parts of the requested information, the Tribunal was duty bound to disaggregate the constituent elements. Thus, he argues, “adopting the approach now contended for by the Home Office would have resulted in the withholding of information to which no exemption applied, in breach of the Act” (response to notice of appeal, para. 15). Second, the Tribunal had correctly concluded that the number of CPG orders was neither supplied by nor related to the Security Service for the purpose of section 23(1). Third, the number of deprivation orders on CT and NS grounds was not information which was either supplied by, or related to, the Security Service for that purpose (in effect, a cross-appeal). Fourth, this was not a case in which the Tribunal should have exercised the steps discretion. The Upper Tribunal could only now alter the substituted Decision Notice if the appeal were allowed on one of the three grounds of appeal advanced by the Home Office.

25. All three parties have made detailed written submissions on the appeal (through Mr Oliver Sanders of Counsel for the Home Office, Mr Mark Thorogood, Solicitor, for the Commissioner, and Mr Aidan Eardley of Counsel for Mr Cobain). All three parties are also content for the appeal to be decided on the papers. Despite its complexity, I am satisfied that this is a proportionate way of dealing with the appeal and that an oral hearing is unnecessary, at least at this stage of making an interim decision.

The Upper Tribunal’s analysis

The Home Office’s substantive grounds of appeal

Ground 1: “relates to”

26. The Home Office, unsurprisingly, accepts both the legal principles adopted by, and the findings of fact made by, the First-tier Tribunal on the application of section 23(1) of FOIA to the number of deprivation orders on CT/NS grounds, namely that this was information which “relates to” security bodies. Rather, the Home Office argues that the Tribunal’s disaggregation of the disputed information in this case was impermissible in the light of section 23(1). This was because, it was said, the free-standing disclosure of the number of deprivation orders made on CPG grounds necessarily involved the disclosure of the number made on CT/NS grounds and so the disclosure of exempt information relating to security bodies for the purpose of section 23(1). The disclosure of exempt information was not simply a side-effect of the disclosure of the non-exempt information, but its inevitable corollary. As such, head (II) of the Tribunal’s substituted Decision Notice rendered the outcome self-contradictory and self-defeating, as it had the necessary effect of disclosing the very information which head (I) of that Decision Notice had ruled was exempt.

27. Mr Cobain, on the other hand, argues that there is nothing in this ground of appeal; his submissions are summarised above (at paragraph 24). In short, the Tribunal, he says, was not only entitled but was obliged to disaggregate the constituent elements of the disputed information. I intend no disrespect to counsel for Mr Cobain by summarising his submissions in such a short compass. The simple reason is that I do not find the arguments put forward by the Home Office to be persuasive on this point. The Home Office does not seek to argue that disaggregation is impermissible in the FOIA context. Rather, it argues that in the circumstances of this case the correct application of section 23 to the Tribunal’s findings of facts “requires a different conclusion as a matter of law”. That different conclusion was “the finding that part of the disputed information ‘relates to’ security bodies compelled the FTT to conclude that the entirety of that information is exempt from disclosure by virtue of FOIA, s.23” (reply, paragraph [8.2]). I reject that line of argument for three reasons.

28. First, as Mr Cobain argues, section 1(1)(b) of FOIA confers a general right to have information communicated to the requester. Section 2(2) then provides that where an exemption in Part II applies, then “section 1(1)(b) does not apply if or to the extent that (a) the information is exempt information by virtue of a provision conferring absolute exemption...” (emphasis added). This requirement to consider whether particular elements of disputed information are to be disclosed is then carried through to the Commissioner’s responsibility under section 50(1) to consider whether a request “has been dealt with in accordance with the requirements of Part I” (and, on any appeal, the Tribunal’s appellate function under section 58(1)). The Commissioner’s position in advocating the steps discretion argument implicitly supports this analysis.

29. Second, in the particular circumstances of this case, the only reason that we will be able to work out what x is from the disclosure of y is because the number represented by z is already in the public domain . If figure z had not been revealed, it is difficult to see on what basis a request for the number of deprivation orders on CPG grounds over the relevant period could have been refused. The Home Office argues that this is a pure hypothetical. But the Tribunal has to decide the case on the application of the law to the known facts. It cannot be right that whether disaggregation is permissible as a matter of law has to depend on the chance event of whether other factual information has or has not been released.

30. Third, the difficulties with the Home Office’s position become clearer if the logic of its argument is pushed to the limits. Let us assume that a requester wishes to know how much the Home Office spends on a particular item of expenditure which is common throughout the public sector. This might be for, say, the annual cost of maintenance contracts which particular divisions within the Home Office, and the various agencies for which it is responsible, agree with private sector IT companies. Let us also assume that the request does not fall foul of either section 12 (costs) or 14 (vexatious requests) and that no exemption applies (e.g. section 43 on commercial interests). The total figure involved doubtless runs into millions of pounds. As a matter of principle, the fact that a percentage of this spend is related to the Security Service does not mean that the rest of the information, which is not exempt, is to be withheld.

31. My conclusion is that the Tribunal did not err in law in, first, disaggregating the disputed information and, second, reaching contrasting outcomes as regards the application of section 23 to the constituent elements. The Tribunal followed the logic of FOIA with regard to the information rendered exempt by section 23 and the information not so exempt. Where it erred in law was in its failure to go the extra step of considering and exercising the steps discretion, as discussed further below. Section 50(4) is the discretionary tool which Parliament has given the Commissioner (and, on appeal, the Tribunal) to resolve the apparently irreconcilable conflict between the immovable force (the exempt information) and the irresistible force (the non-exempt information). The way in which that resolution then plays out will be very much context-specific, and is considered further below.

32. As the Home Office has now abandoned ground (2), I turn to consider ground (3).

Ground 3: the reasons challenge

33. The Home Office’s third ground of appeal is an adequacy of reasons challenge. It is argued by the Home Office that the Tribunal’s reasons fail to address or resolve the self-contradictory and self-defeating nature of its final order, by which it both directed that the CT/NS figure was exempt and should not be disclosed, while the CPG figure was non-exempt and should be communicated.

34. The Tribunal’s open reasons are set out at paragraph 20 above. It is fair to say that they do not really grapple with the conundrum at the heart of this appeal - how can y be disclosed if we know z, which means that the exempt information x will also be disclosed? Those open reasons also referred (at paragraph [41]) to the confidential annex to the Tribunal’s decision. The Home Office argues that paragraph [11] of that closed annex does not explain how the Tribunal squared this circle. I have to agree. I include the text of paragraph [11] here for two reasons. The first is to show that it would have been perfectly possible to include this passage in the Tribunal’s open decision. The second is to show that the Home Office’s point about adequacy of reasoning is well made. Paragraph [11] of the confidential annex reads simply as follows:

“[11] We have considered whether we should take into account that disclosure of the number of deprivation orders in the third category in the request could lead us coming to another conclusion in view of the information already in the public domain. We find that we do not need to take this into account and even if we are wrong it would not change our finding. We come to this conclusion on the basis of the absolute exemption being applied in this case and the fact that no public interest test is involved.”

35. I regret to say this compressed explanation must have left the Home Office neither wiser nor better informed. The reasons (whether open or closed) simply failed to explain why the Tribunal in effect decided that Mr Cobain’s right to be provided with the non-exempt information ( y ) trumped the Home Office’s right to withhold the exempt information (x). This ground of appeal accordingly succeeds. However, the real point is that the Tribunal should have gone on to consider the exercise of the steps discretion, as discussed further below.

Mr Cobain’s cross-appeal

36. Mr Cobain brings what for present purposes may be described as a cross-appeal. In doing so, he challenges limb (1) of the Tribunal’s substituted decision notice. Mr Cobain argues that the number of deprivation orders made on CT/NS grounds is not information which “relates to” the Security Service in the sense required by section 23.

37. This “cross-appeal” has not been without its procedural complexity. Mr Cobain argued that he was entitled to take the point by way of response to the Home Office’s appeal, and without formally seeking permission to cross-appeal. The Home Office resisted that approach, contending both that Mr Cobain needed permission to appeal to raise the point and that such permission should be refused. After a separate round of written submissions, I issued a ruling on 7 February 2014 dismissing the Home Office’s application(i) for the scope of the appeal to be limited to its grounds (1) and (3); and

(ii) to strike out those parts of Mr Cobain’s response which went further than this.

38. In short I concluded that a respondent who is essentially arguing for the same material outcome as the tribunal below does not need permission to appeal. In doing so I observed that my conclusion was consistent with the approach taken to rule 24(3)(e) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) by the Immigration and Asylum Chamber of the Upper Tribunal in EG and NG Ethiopia

[2013] UKUT 143 (IAC)

. It seemed to me that there was considerable merit in the more flexible and expansive approach of Judge Jacobs in DL-H v Devon Partnership NHS Trust

[2010] UKUT 102 (AAC)

, but I did not need to go that far for the purposes of this appeal.

39. On the substantive point of his cross-appeal, Mr Cobain argues that, while the Tribunal correctly stated the legal principles as regards the application of the “relates to” limb of section 23, the Tribunal failed to apply those principles properly to the facts as found. The legal principle is that the “relates to” test must be given a broad and purposive interpretation, subject to a test of remoteness. However, the connection between the Security Service and the number of deprivation orders made on CT and/or NS grounds was, he submits, simply too tenuous. Furthermore, the purposive approach meant that one had to ask what, if anything, the public would learn about the Security Service if the CT/NS figures were released.

40. I reject these arguments. I agree with the Home Office that this is, at heart, a challenge to findings of fact by a Tribunal which heard written and oral evidence in open and closed sessions. In other words, Mr Cobain is inviting me to trespass on the proper fact-finding function of the tribunal below. In this context the Home Office refer me to the observations of Brooke LJ in Adan v Newham LBC

[2001] EWCA Civ 1916

[2002] 1 WLR 2120

at [41]-[42] and Lord Millett in Begum v Tower Hamlets LBC

[2003] UKHL 5

[2003] 2 AC 430

at [99]. I prefer to cite the rather more pithy warning of Leveson LJ in Secretary of State for Work & Pensions v Roach

[2006] EWCA Civ 1746

, where his Lordship found that “the Commissioner's reasons for disturbing the Tribunal's findings of fact are simply unsupportable and no more than an attempt to reanalyse evidence (which he had not heard) from a perspective that he preferred” (at paragraph 37). In the present case the Tribunal was entitled, on the evidence it received, to conclude that the disputed information disclosed data that “relates to” the security bodies in that it concerned their involvement (or non-involvement) in deprivation action taken between 2006 and 2011. I accordingly dismiss the cross-appeal.

The Information Commissioner’s argument: the steps discretion point

41. I conclude above that the Home Office’s third ground of appeal (the reasons challenge) succeeds. However, in my judgment the more fundamental error of law in the First-tier Tribunal’s decision was in relation to the steps discretion point. When issuing a Decision Notice, the Information Commissioner is subject to section 50(4) of FOIA, which provides that:

“Where the Commissioner decides that a public authority-

(a) has failed to communicate information, or to provide confirmation or denial, in a case where it is required to do so by section 1(1), or

(b) has failed to comply with any of the requirements of sections 11 and 17,

the decision notice must specify the steps which must be taken by the authority for complying with that requirement and the period within which they must be taken.”

42. As noted above, on the present appeal the Information Commissioner submits that, even if the Tribunal was correct in finding that the number of deprivation orders made on CPG grounds was not exempt information, it should still have exercised its discretion under section 50(4) so as not to direct the disclosure of that data, as to do so would necessarily disclose the number of deprivation orders on CT/NS grounds, which was (on the Tribunal’s findings) exempt information. The Home Office adopts this argument as a fall-back position on its principal submissions.

43. The Information Commissioner’s submission was based on Information Commissioner v HMRC and Gaskell . Mrs Gaskell had made a FOIA request to the Rent Service, then part of the Department for Work and Pensions (“DWP”). However, by the time the Information Commissioner issued his Decision Notice on her complaint, the Rent Service had been transferred from the DWP to Her Majesty’s Revenue & Customs (HMRC). Accordingly, the Rent Service officials were now subject to section 18(1) of the Commissioners for Revenue and Customs Act (“CRCA”) 2005, which p rovides that HMRC officials “may not disclose information which is held by the Revenue and Customs in connection with a function of the Revenue and Customs” (no such equivalent statutory prohibition had applied to them as DWP officials). Thus, if the Commissioner were now to order disclosure of the disputed information, those staff would have contravened section 18 of CRCA 2005, and of course s ection 44(1)(a) of FOIA provides an absolute exemption where disclosure by the public authority holding it “is prohibited by or under any enactment”.

44. In Gaskell I decided that, on its proper construction, section 50(4) vested the Commissioner with a discretion, rather than imposing on him a duty, as to the steps that should be specified. I agreed with the Commissioner’s submissions as follows (at paragraph [24]):

“Mr Hooper’s submission [for the Commissioner] was that, on a proper construction of FOIA, the Commissioner does indeed enjoy a discretion under section 50(4) to take account of subsequent changes of circumstances. Accordingly, section 50(4) should be construed as imposing an obligation on the Commissioner, where a requirement falling within section 50(4)(a) or (b) has been found to have been breached, to specify such steps - if any - as the Commissioner considers must be taken by the authority for complying with that requirement. I accept Mr Hooper’s analysis that Parliament can be presumed not to have intended that the Commissioner might have to impose an obligation on a public authority to take the ‘step’ of communicating certain information where that step would, in the circumstances, be e.g. unlawful, impossible or wholly impractical.”

45. I also observed as follows:

“29. There is an obvious concern that the approach adopted here may give the Commissioner too much ‘wriggle-room’, with the result that public authorities might be too readily relieved of the need to take appropriate steps in a manner which would be inimical to the principles underpinning FOIA. To that extent I was reassured by Mr Hooper’s observation that the Commissioner does not anticipate needing frequently to exercise this discretion under section 50(4), so as to decline to require the communication of requested information that should have been communicated when the public authority at issue first dealt with the request. Indeed, Mr Hooper advised me that the present case is the only one since FOIA came into force in which the Commissioner considered it appropriate to decline to require information to be communicated on the basis that a statutory bar on disclosure had come to apply between the date when the request for information was first dealt with and the date of the Decision Notice...”

46. In reaching that conclusion I agreed with the First-tier Tribunal in Sittampalam v Information Commissioner and the BBC (EA/2010/0141 at [60]) that “ The Commissioner’s general function is to enforce the Act. In our view his steps discretion will only result in his declining to order disclosure, where disclosure was originally required under s1 but not given, in exceptional cases.” I accordingly concluded in Gaskell (at paragraph [31]) that:

“the requirement under section 50(4) that the decision notice should specify the steps which must be taken by the public authority does not amount to a mandatory obligation on the Commissioner to require steps to be taken to comply with the requirements of sections 1(1), 11 or 17 in every case, although that consequence will usually follow, save for exceptional cases such as the present one. As a matter of law the mandatory element of section 50(4) is that, if the Commissioner considers that the public authority ought to take any steps to comply with those statutory requirements, then he must specify them in the decision notice, along with the defined period within which they must be undertaken.”

47. Counsel for Mr Cobain recognises the existence of the steps discretion under section 50(4) but argues that it does not apply in the present case. Some of his arguments are not persuasive. For example, he submits that the Upper Tribunal has no power to substitute a different Decision Notice unless the First-tier Tribunal has made an error of law (Tribunals, Courts and Enforcement Act 2007, s.12), and in the proceedings before the tribunal below none of the parties invited the Tribunal to exercise the steps discretion. The difficulty with this submission is that it fails to recognise that both the First-tier Tribunal and the Upper Tribunal have an inquisitorial jurisdiction. Whether or not they are raised by the parties, tribunals have a responsibility to address points which are raised by the appeal and which are directly relevant to the legal principles underpinning a scheme of statutory entitlement (here the right to information under FOIA).

48. Mr Cobain also argues that there is no proper comparison between the circumstances of the present case and the “exceptional circumstances” that arose in Gaskell . It is undoubtedly the case that the examples of such atypical “exceptional circumstances” which were canvassed in Gaskell were those where there had been some unusual change of circumstances between the date of the request and the date of the Decision Notice (e.g. it had since become illegal to communicate the information or the information had since been destroyed or might breach third party rights). However, there was no indication in Gaskell that exceptional circumstances were necessarily confined to such changes in circumstances.

49. I return to the conundrum that lies at the heart of this appeal. The Tribunal found that the information represented by y was not exempt, and was therefore information which Mr Cobain was entitled to have communicated to him under section 1 of FOIA. On the other hand it also concluded that the information represented by x was exempt, and was therefore information which the Home Office was entitled not to communicate, by virtue of sections 2(2) and 23(1) of FOIA. There is no obvious mechanism in the Act itself for determining which right is to be given priority where (in light of the background circumstances) the enforcement of one will necessarily result in the other being denied. In my assessment, faced with that conundrum, I find that the Tribunal in this case erred in law by not considering whether or not to exercise its discretion under section 50(4) as to stipulating the steps to be taken (or not) as regards disclosure in the particular circumstances of this appeal.

The Upper Tribunal’s interim decision

50. My interim decision is therefore to allow this appeal by the Home Office on two bases. The first is the reasons challenge (ground 3). The second is the procedural point identified by the Commissioner in his response to the appeal.

51. The question then is how to resolve and dispose of this appeal before the Upper Tribunal. It seems to me that there are two obvious ways forward.

52. The first option is to remit the matter to the First-tier Tribunal with directions to consider the exercise of the steps discretion under section 50(4) and resolve the appeal accordingly. If this case was to go back to a freshly-constituted tribunal, then there would have to be a complete re-hearing, which may well not be a proportionate way of dealing with the matter. Alternatively, and assuming the same Tribunal is available, the matter could be remitted purely to decide the section 50(4) point.

53. The second option is for the Upper Tribunal to re-make the decision under appeal, and for me to consider the exercise of the steps discretion under section 50(4). This might necessarily involve the Upper Tribunal holding an oral hearing and receiving evidence that bears on the section 50(4) point.

54. In the accompanying directions I accordingly provide for the parties to make further submissions on these issues.

55. I should add that I have already considered whether to make a final decision allowing the appeal on the two bases identified but also exceptionally exercising the steps discretion so as not to specify steps ordering the disclosure of the number of deprivation orders made on non-exempt CPG grounds (head (II) of the Tribunal’s substituted Decision Notice).

56. I have not taken that approach not least as the point has not been fully argued before me. The Information Commissioner’s submission is that the Tribunal should have so exercised its steps discretion as to do otherwise would have inevitably resulted in the disclosure of the number of deprivation orders made on exempt CT/NS grounds. The Home Office supports that approach in the alternative. With respect, this argument begs the question. It rests on an assumption that where the disclosure of certain requested non-exempt information (“A”) necessarily results in the disclosure of other exempt information (“B”) then the Commissioner must always exercise his steps discretion so as not to direct the disclosure of A. In other words, the implicit rationale is that the right of a public authority to withhold exempt information under FOIA necessarily outweighs or trumps the right of the requester to receive non-exempt information. I am not aware of any provision in FOIA or case law authority which supports such a proposition. As indicated above, in my judgment the exercise of the steps discretion will always be context- and fact-specific. In the present case there has to date been no proper evaluation of the specific considerations and factors informing the exercise of the discretion under section 50(4).

Conclusion

57. My interim decision is to allow the appeal. The Tribunal’s decision involves an error of law because of(i) the inadequacy of the Tribunal’s reasons (the Home Office’s Ground (3)); and

(ii) its failure to consider the exercise of the steps discretion (the Information Commissioner’s argument). The directions above invite the parties to make further submissions on the appeal.