McInerney v Information Commissioner and the Department of Education (Information rights : Information rights: practice and procedure) [2015] UKUT 47 (AAC)
[27]An appeal to the Tribunal is governed by The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (“the Rules”). A notice of appeal must be received by the Tribunal within 28 days of the Commissioner's decision notice: rule 28(1). The notice of appeal must include the grounds on which the appellant relies: rule 22(2)(g). If the person seeking the information is appealing against a decision by the Commissioner that the information should not be released, the public authority's response must be received within 28 days after the date when it receives notice of the appeal, and that response must include any grounds for its opposition to the appeal which are not contained in another document provided with the response: rule 23(1) and (3).[28]Thus, whether the public authority is the appellant or the respondent in an appeal to the Tribunal, the Rules ensure that any new exception, if it is to be relied upon, is identified at the outset of the appeal, and within a relatively short time. Any application by the public authority to rely upon a new exception made after the time limit for its grounds of appeal/response would be subject to the Tribunal's case management powers under rule 5; see also rules 22(4) and 23(5) which deal with the submission of notices of appeal and responses out of time. The Tribunal is a creature of statute. Not only is there no need for a non-statutory discretion such as that purportedly exercised by the Tribunal in the present case; there is no scope for the exercise of such a discretion in a statutory scheme which requires the public authority to set out its grounds of appeal, or grounds of opposition in response to an appeal, within a particular timescale, and which expressly envisages in the case of the latter that those grounds may not be contained in another document provided with the response, i.e. that they may contain new reasoning. Lloyd and Carnwath LLJ agreed. Those paragraphs are of general application. They cannot be limited to exceptions or exemptions. I. The late reliance issue 21. I first set out the parties’ arguments and then give my analysis. Ms McInerney’s argument 22. Ms McInerney argued that the First-tier Tribunal had been wrong to allow late reliance on sections 12 and 14. She acknowledged that she was not able to contribute to the legal analysis, but drew attention to a blog that mentioned a conflict of authorities on the issue. She pointed out that allowing late reliance undermined section 16. At the hearing, she told me that the tribunal had not involved her in any discussion of the case management powers that might have prevented the Department from relying on sections 12 and 14. The Information Commissioner’s argument 23. Mr Hopkins argued that a public authority could rely late on section 14, but reliance on section 12 was subject to the tribunal’s discretion. The discretion was sufficient to allow the First-tier Tribunal to deal with cases where there had been some accident or omission in the application of the section. He identified five features of section 12 that supported this conclusion, the first two of which apply equally to section 14. In summary, these are the features that are said to distinguish section 12 from the exemptions: · Section 12 is not in Part II of FOIA. · Section 12 only protects the public authority from a resource burden; it does not involve any protection of a public or third party interest. · Section 12 does not depend on an objectively correct outcome. It is merely an estimate by the public authority. The Information Commissioner only checks to see if the estimate was reasonable. In contrast, the Commissioner has to decide whether the exemptions have been correctly applied. · Section 12 does not involve a balancing exercise. · Section 12, by virtue of the Code of Practice section 45, is bound up with the duty to advise and assist under section 16. In particular, Mr Hopkins referred me to this passage in the Code: Where an authority is not obliged to comply with a request for information because, under section 12(1) and regulations made under section 12, the cost of complying would exceed the ‘appropriate limit’ (i.e. cost threshold) the authority should consider providing an indication of what, if any, information could be provided within the cost ceiling. The authority should also consider advising the applicant by reforming and re-focussing their request, information may be able to be supplied for a lower, or no, fee. 24. Mr Hopkins then took me through the caselaw. Some were decisions of the First-tier Tribunal, which he accepted were not binding on me. I need only set out his argument on the decisions of the Upper Tribunal and the Court of Appeal: · On the APPGER case, he accepted that strictly the discussion of section 12 was not necessary as the panel dealt with the issues on other grounds, but it was nonetheless detailed and reasoned. · On the Home Office case, this did not address section 12 and its rationale did not apply to that section. · On the Birkett case in the Court of Appeal, this did not follow my approach and contains only an analysis of the position under the EIR. The Department’s argument 25. Mr Sharland argued that a public authority could rely on either section 12 or section 14. In neither case was there any discretion. 26. On section 12, he argued that, in any event, the tribunal had based its decision exclusively on section 14, so no issue relating to section 12 arose. Addressing Mr Hopkins’ argument, he argued that the existence of a discretion was inconsistent with the Birkett case in the Court of Appeal. He also pointed out that Mr Hopkins’ argument failed to take account of the existence of absolute exemptions, which operated in the same way as section 14 in the sense that no balancing exercise was required. 27. On section 14, my decision in the Home Office case decided that a public authority could rely on a new exemption. The Court of Appeal in Birkett confirmed this approach in respect of the EIR and there is no distinction between those Regulations and FOIA. The reasoning in those cases does not depend upon the public authority relying on an exclusion or exemption. The reasoning applies equally to section 14. Analysis28. It is tempting to accept Mr Sharland’s argument that the First-tier Tribunal based its decision on section 14 only and that section 12 is, therefore, irrelevant on this appeal. However, both counsel argued that late reliance on section 14 was permissible. There is no decision of the Upper Tribunal to that effect. I can only accept that concession if I am satisfied that it is sound, but if Mr Hopkins’ argument on section 12 is right, I will need to be satisfied that the position of section 14 is distinguishable. I cannot, therefore, avoid considering section 12.29. I begin with four propositions that are clear on the authorities.30. First, the Birkett case in the Court of Appeal is authority that late reliance on an exception is permissible under the EIR. It is also authority that there is no scope under the First-tier Tribunal’s rules of procedure for the exercise of a non-statutory discretion over the scope of an appeal.31. Second, my decision in the Home Office case is authority that late reliance on an exemption is permissible under FOIA subject to the First-tier Tribunal’s case management powers. For convenience, I repeat what I said in that case about those powers: 13. Nothing in this decision affects the First-tier Tribunal’s powers under the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI No 1976). The tribunal may, in particular and as appropriate in a particular case, exercise its powers to regulate its own procedure (rule 5), to strike out cases and bar participation (rule 8), and to limit the evidence and submissions that it will receive (rule 15). Nor does it affect its power to award costs under rule 10. No one argued to the contrary and could not realistically do so. I notice that in counsel’s arguments and in some of the First-tier Tribunal decisions that I was shown the expression ‘as of right’ has been used. In so far as it emphasises that it is not a matter of discretion, that expression is unobjectionable. But it is dangerous if it leads tribunals to overlook the possible exercise of their case management powers to control late reliance.32. Third, there is no Upper Tribunal decision that disagrees with my conclusion or my reasoning in the Home Office case. My understanding is that it is now generally accepted as correct and that the Court of Appeal’s decision on the EIR is treated as supporting my decision on FOIA.33. Fourth, in so far as the panel in the APPGER case considered that the First-tier Tribunal had a discretion to allow late reliance on an exemption, that is now inconsistent with the Court of Appeal’s decision. In so far as the case is authority that my reasoning does not apply to section 12, it involves the exercise of a judgment whether doing so would give rise to prejudice or material unfairness. Sullivan LJ’s explanation of why there is no scope for an non-statutory discretion applies equally to this sort of judgment. To that extent, the reasoning is no longer valid.34. It follows that late reliance on section 12 cannot be discretionary. There are only two possibilities: either a public authority is not entitled to rely late on section 12 or it is entitled to do so subject only to the tribunal’s case management powers.35. That leaves two questions. Is there any distinction between sections 12 and 14 that justifies or requires a different result? Is late reliance on section 14 permissible? It is convenient to take those two questions together.36. There is certainly scope for late reliance, even under section 12. As Mr Hopkins recognised, some provision is required in order to provide for accidents or omissions in applying that section.37. Mr Hopkins is also right that the purpose of sections 12 and 14 is different from the purpose of exemptions in that the former protect the resources of the public authority whilst the latter protect the public interest. But the difference is not as great as he suggests. First, the difference is not so clear on the face of FOIA. It is right that sections 12 and 14 are not in Part II. However, the heading to section 12 calls it an exemption. And both sections operate in the same way as exemptions operate by virtue of section 2 in that they disapply the duty to provide information under section 1. Second, the difference is not a distinction. It does not explain why late reliance should not be allowed.38. The issue in this case concerns the power of the First-tier Tribunal and, in other cases, will concern the power of the Information Commissioner. My reasoning in the Home Office case only referred to exemptions under Part II. Counsel did not address sections 12 and 14; nor did I have them in mind when I developed my analysis. That does not mean that the reasoning is of no relevance to those sections. Much of what I said, especially about the nature of the role of the Commissioner and the jurisdiction of the First-tier Tribunal, is generally applicable to their powers. Mr Hopkins’ argument confuses the basis of my analysis with its application in the particular context of the case.39. As I explained in the Home Office case and as the tribunal noted in this case, section 17(1) does not prevent late reliance. It is concerned with the position when the request is being considered by the public authority, not when the case is before the Commissioner or the tribunal. The same is true of section 17(5)-(7), which refer to section 12 and 14. And the same reasoning applies to section 16 and the Code of Practice, both of which are concerned (like section 17) with the time the request is before the public authority.40. The nature of section 12 does not justify or require a different analysis. It is true that it depends on an estimate and that the issue for the Commissioner is whether that estimate was reasonable. If a public authority relies on the section before the tribunal, it will take the same approach as the Commissioner would. Its powers are governed and limited by the terms of the section, just as much as his are.41. As a practical matter, late reliance may effectively be forced on a public authority by the course of events. This case is a good example. The Department refused the request on the ground that it was covered by an exemption, which was sufficient to dispose of the case without investigating the amount of the information it held or the costs of providing it. The Commissioner decided that the Department was not entitled to rely on that exemption. It was then, for the first time, that the Department had to confront the amount of work involved in complying with the request, which led it to rely on sections 12 and 14 before the tribunal. If late reliance were not permitted, a public authority would be obliged to incur the cost of identifying, retrieving, reading and redacting the information. The only way to avoid that would be for public authorities to investigate the resource implications of compliance in every case. That would be a strange result when the purpose of sections 12 and 14 is to protect the public authority’s resources.42. I come finally to Ms McInerney’s concern that she had not been involved in a discussion of the tribunal’s case management powers. The nature of those powers is such that, if the tribunal is considering applying them, all the parties should be involved. If the tribunal is not considering applying them, it should be mindful that an unrepresented party may not be aware of them and, therefore, may be deprived of a chance to invite the tribunal to exercise them to prevent late reliance. In this case, however, I am satisfied that there was no basis for exercising any of those powers. There was nothing to suggest that the Department was abusing the system. It did not consider it necessary to rely on section 14 initially and raised it only in response to the decision of the Information Commissioner, which no doubt concentrated the minds of officials on the amount of work that would be involved in implementing it. J. The vexatiousness issue43. I first set out the parties’ arguments and then give my analysis. Ms McInerney’s argument44. This ground of appeal raises two issues. It combines an argument that the tribunal did not have sufficient evidence to justify its decision and an argument that it did not explain adequately how the evidence supported its decision. Ms McInerney pointed out that the cost would only represent 0.015% of the overall Free Schools budget and only 0.7% of the administration budget taken over the three years of the project. The Information Commissioner’s argument45. Mr Hopkins argued that the tribunal’s reasons were clear and did not need to be longer. He also argued that the tribunal had evidence before it of the cost of compliance that Ms McInerney did not challenge and it was entitled to accept it. The Department’s argument46. Mr Sharland argued that in so far as this ground was a reasons challenge, paragraphs 8-16 of the tribunal’s reasons gave a clear explanation of how it had made its decision. In so far as it was a rationality challenge, the comparison of the cost of compliance and the total budget was not sufficient to show that no tribunal could properly have made the decision that this tribunal had. Objectively and financially the cost was huge and there was in addition the effect of diverting so many officials for so long from their other duties. The Upper Tribunal should show restraint in finding fault with the assessment of the First-tier Tribunal and this was not a case in which it should interfere with the finding of that tribunal. Analysis47. I accept counsel’s arguments.48. The tribunal had evidence from the Department of the effects of compliance. Those effects were identified in both financial terms and in the consequences of diverting officials from other duties. Ms McInerney sought to put that evidence in perspective, but did not challenge it. In view of the total impact of compliance, the tribunal was entitled to find on the evidence that compliance would be troublesome to the Department to the point where the request could properly be characterised as vexatious. The tribunal’s explanation of that conclusion was relatively succinct but perfectly clear. K. The severance issue49. I first set out the parties’ arguments and then give my analysis. Ms McInerney’s argument50. This ground of appeal raises two issues. One is that her request should have been treated as two. Second, regulation 5 of the Freedom of Information Regulations was relevant to section 14 as it was to section 12. As the two parts of the request related to different information, they should have been treated separately. If they had been, the cost of replying to the second part would have cost less than the £600 figure set by regulation 3.51. At the hearing, Ms McInerney told me that the Department had since provided some of the information she had requested voluntarily and more information in response to new requests. The Information Commissioner’s argument52. Mr Hopkins argued that regulation 5 was not relevant to section 14. He did not go so far as to argue that the tribunal was wrong to treat Ms McInerney’s request as a whole, but he did argue that the tribunal should have explained why it had not treated the two parts separately as they were clearly severable. The Department’s argument53. Mr Sharland argued that the tribunal decided the case under section 14, which applies to ‘a request for information’, which is defined in section 8. The tribunal correctly set out Ms McInerney’s request. The only issue was whether that request was vexatious. There is no statutory justification for splitting a request for the purposes of section 14. Analysis54. With the benefit of hindsight and in the light of the subsequent developments that Ms McInerney outlined, it is possible that the request could have been handled differently from the outset. The Department’s initial response was to deal with the request, as presented and as a whole, under section 36. That was a sensible approach under that section. If instead the Department had considered the effects of compliance, it might have exercised its power under section 16 to assist Ms McInerney to redefine her request. However, that is not what happened and it is now too late to rewrite history. As the Information Commissioner upheld her complaint, there was no need for him to consider whether the request should be split. And by the time the appeal came to the First-tier Tribunal, it had to focus on the Commissioner’s decision notice.55. The policy of section 14 is clear: it is to free public authorities from the obligation that would otherwise exist under section 1 to provide information in circumstances that would, in the broadest sense, be troublesome. If the section is to be effective in achieving that objective, it must be interpreted and applied broadly to the substance of the circumstances rather than the form of the request. The form in which a request is presented should not dictate how the section is applied. A series of requests could each be considered vexatious when viewed in the context of the series as a whole. Likewise, when presented with what on its face is a single request, the public authority should not be obliged to dissect it to see whether it could be severed. The public authority, and the First-tier Tribunal on appeal, should take an overall view of the circumstances as a whole to decide whether what is before it, whether presented as a series of requests or a single request, is vexatious.56. This does not mean that a public authority is entitled to ignore section 16. It is possible that, even in what appears to be a most vexatious request, the circumstances might allow a public authority to extract one part to create a non-vexatious request. Assume that a public authority receives a request from someone who has no ‘previous’. It asks for a long list of information that will obvious take considerable time and effort to assemble and redact, but one item refers merely to a standard letter used by the authority. The authority should be able to identify readily that the letter could be provided with little cost or effort. In such a case, it might be appropriate to discuss the matter under section 16. Such cases may well be exceptional, as the duty imposed by that section only applies ‘so far as it would be reasonable to expect the authority to do so’. It is possible in this case that, if the public authority had considered section 14 right away, it might have seen that the information sought in second part of the request would cost substantially less to provide than that sought in the first part. But even then it would have been necessary to undertake work to provide costing for the purpose of applying section 12. So, looked at overall, it might not have been reasonable to apply section 16.57. Coming to the circumstances of this case, the First-tier Tribunal was right to treat the request as a whole. It was too late to apply section 16, which imposes a duty on the public authority, not the tribunal, and operates when the request is before the authority, not on appeal. The request had been presented as a single one and the information sought in the two parts of the request formed a cohesive package. The request, by its form and content, dealt with two different types of information, but the process of deciding whether to sever the request would, as I have said, itself have imposed a burden on the Department, which formed part of the overall calculus involved in assessing whether the request was vexatious.58. Ms McInerney told me that she had suggested severing the request, but that was not until the case was before the Information Commissioner. The section 16 duty does not apply to the First-tier Tribunal and that tribunal was considering for the first time whether section 14 applied.59. I therefore, accept Mr Sharland’s argument that there was no error of law and reject the arguments of Ms McInerney and Mr Hopkins.60. As to section 12 and the Freedom of Information Regulations, I accept the concurring arguments of counsel. These are separate provisions from section 14 and they reflect different policies. There is no reason or justification for applying regulation 5 to section 14. Whether or not a request is vexatious is not just a matter of the financial cost of compliance. It depends on the circumstances as a whole. Signed on original on 29 January 2015 Edward Jacobs Upper Tribunal Judge
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