Dr Philip Wise v The Information Commissioner & Anor

This is an appeal by Dr Wise, who was also the appellant in the First-tier Tribunal (“FTT”) proceedings. He appeals against the FTT’s decision dated 15 March 2024, made following the appeal being determined on the basis of the appeal bundle on 20 February 2024.

On 12 November 2022, Dr Wise complained to the Information Commissioner (“ICO”) about the response he had received from the Driver and Vehicle Licensing Agency (“DVLA”) to a request for information under the Freedom of Information Act 2000 (“FOIA”).

On 21 November 2021, the DVLA contact centre advised Dr Wise that it was reviewing its current procedures around drivers returning documents. Dr Wise’s request for information was for a copy of the terms of reference for that review.

After, the DVLA asked Dr Wise to clarify his request, he provided the DVLA email dated 21 November 2021. Dr Wise added: Since good practice requires all such reviews are carried out in accordance with pre-specified Terms of Reference, I would like to receive a copy of those”.

On 24 January 2022, the DVLA wrote to Dr Wise, stating it held information which fell within the scope of his request, but it was being withheld under section 35(1)(a) of the FOIA, as information relating to the formulation or development of government policy.

After the DVLA maintained its position on a review (11 February 2022), Dr Wise complained to the ICO. His complaint included that the DVLA had failed to discharge its duty in section 16 of FOIA to provide him with advice and assistance.

On 04 November 2022, the DVLA wrote to the ICO, asking for a view about whether the DVLA actually held the information requested. The letter stated that the DVLA did not hold the information Dr Wise had specified as: “…there are no pre-specified terms of reference for the policy review in question.”.

The DVLA letter explained it held a draft version of a submission to government Ministers, outlining the policy and legal issues around the option of removing the requirement for drivers to return their previous driving licence when a new licence had been granted. The DVLA’s letter to the ICO stated it attached a copy of the draft submission at Annex A. The DVLA explained that should the ICO conclude this document fell within the scope of Dr Wise’s request, the DVLA considered section 35(1)(a) [of FOIA] was engaged and set out its arguments why the document should not be disclosed.

The DVLA stated it considered the second criterion in section 16(1) of FOIA was the most closely engaged by Dr Wise’s request, but his request was not ambiguous because he was requesting a very specific document, namely the “terms of reference”. The DVLA acknowledged that it may have been helpful for it to explain to Dr Wise that it did not hold a terms of reference document, and advised it considered the information it held that was in scope engaged section 35(1)(a) of FOIA.

On 21 November 2022, the ICO issued a Decision Notice. This stated the ICO was concerned the DVLA failed to appropriately consider the parameters of the request, and conduct proper searches based on those parameters. The Decision Notice stated that the DVLA told the ICO it did not hold the requested information but had provided a document stated to represent the withheld information, which appeared to the Commissioner to be unrelated to the parameters of the request.

The ICO’s Decision Notice set out the DVLA’s explanation that there were no pre-specified terms of reference for the policy review in question and that the information the DVLA held was a draft version of a submission to government Ministers outlining the policy and legal issues around the option of removing the requirement for drivers to return their previous driving licence when a new licence has been granted.

The ICO’s Decision Notice stated section 1 of FOIA required the DVLA to search for information falling within the parameters of the request, but here, the DVLA was seeking to withhold information that, on its submissions, did not appear to be the information Dr Wise had requested. The Decision Notice stated it appeared the DVLA was seeking to withhold information created in September 2022, nine months after it received Dr Wise’s request for information. The ICO stated that in such a scenario, he could not reasonably conclude that the DVLA had carried out proper searches. However, the ICO decided that the DVLA had now carried out proper searches and he was satisfied there was no available evidence to suggest that such a Terms of Reference document was held by the DVLA.

The ICO decided the first and third criteria in section 16(1) of FOIA did not appear to apply to Dr Wise. In respect of the second criterion, the ICO decided that in the circumstances of the case and given what the DVLA had written, he was satisfied the DVLA had complied with section 16. Finally, the ICO reminded the DVLA of the strong importance of establishing the parameters of a request and ensuring that the information it considered fell within those parameters.

Dr Wise appealed to the FTT. The DVLA was added as Second Respondent to the appeal in April 2023. The DVLA’s response to Dr Wise’s appeal stated that at the time of his request, the information it held that was potentially in scope, was a draft submission to Ministers.

In paragraph 6 of its response to the appeal (and a footnote), the DVLA stated the ICO had referred in his Decision Notice to a later version of the draft Ministerial submission (dated August 2022 but an earlier version of the draft submission was produced in January 2022, and had existed at the date of Dr Wise’s freedom of information (“FOI”) request.

An open bundle and a closed bundle were produced for the FTT appeal. The closed version of the bundle was meant to include the material the DVLA argued was exempt under section 35(1)(a) of FOIA. It did not include it.

The appeal was placed before an FTT for determination on the papers on 20 February 2024. In its Decision Notice dated 15 March 2024, the FTT wrote that it did not consider either the open bundle or the closed bundle contained all the documents referred to in the correspondence provided to it. The FTT emphasised that it had not been provided with copies of the two draft submissions to Ministers (dated January 2022 and August 2022). The FTT stated the ICO may have decided the August 2022 version of the submission was out of scope because it was created after Dr Wise’s request, but the same could not be said of the January 2022 version. At paragraph 21 of its Decision Notice, the FTT wrote that without seeing the January 2022 submission, it could not be certain the January 2022 submission was out of scope for that reason.

At paragraph 23 of its Decision Notice, the FTT wrote that it was unacceptable that the ICO should fail to provide copies of all documents relevant to the appeal.

The FTT wrote that having considered the matter, it found that the (January 2022) draft submission was not in scope of Dr Wise’s request, even if it was created before he requested information on 12 January 2022. The FTT explained this was because Dr Wise made a very specific request for a copy of the terms of reference for the review into the requirement to surrender a licence to DVLA. The FTT wrote at paragraph 23 of its Decision Notice that a draft submission to Ministers was not to be equated with the terms of reference for a review.

The FTT wrote that Dr Wise requested the terms of reference for the review, based on nothing more than his assumption that such a document existed. The FTT wrote that it appeared the DVLA identified a number of documents relating to the requirement to return a previous licence, without having first considered whether they were in scope of Dr Wise’s request. See paragraphs 24 and 25 of the FTT’s Decision Notice.

The FTT described this as regrettable but did not consider it indicated the DVLA seeking to retrospectively deny the existence of documents it had previously stated existed. The FTT stated it indicated the DVLA (subsequently) giving proper consideration to the documents it held and determining they were not what Dr Wise had requested. The FTT found the DVLA did not hold the information Dr Wise requested, based on its assessment of the evidence in the appeal bundle.

Dr Wise applied for permission to appeal against the FTT’s decision. Upper Tribunal Judge West directed for an oral hearing of the application to take place. I heard it on 04 November 2024, at the Upper Tribunal’s London venue. Dr Wise was the only party required to participate and he was the only party that attended.

On 07 October 2024, I granted permission to appeal on the following bases:

“34.

It is arguable that the tribunal failed to make adequate findings of fact, supported by evidence, about which information the DVLA held at the date of Dr Wise’s FOI request. The tribunal wrote at paragraph 25 of its decision that it appeared the DVLA identified a number of documents were within scope of Dr Wise’s request in January 2022, but the tribunal has not explained what these were. On the face of it, the DVLA’s Response might be read as indicating only one document had been identified, which was the January 2022 draft submission to Ministers. Although, the DVLA Response refers to another document, produced in June 2020, it states the DVLA only identified this document when preparing the Response to Dr Wise’s appeal (and therefore in mid-2023, not in January 2022). It is therefore unclear what the tribunal meant by its reference to “a number of documents within scope” and its Decision Notice does not explain this.

35.

It is also arguable that the tribunal made perverse or irrational findings on a material matter to the appeal, namely whether the information the DVLA states it identified in January 2022, was outside the scope of Dr Wise’s request. It is arguable the tribunal lacked the evidence it needed to be able to find that the January 2022 draft submission to Ministers did not contain information about terms of reference for the review. It is not clearly self-evident that a submission to a Minister would never contain information about terms of reference. There might be circumstances where a submission could refer to them, for example, as background information in an Annex, where relevant to an issue the submission asks the Minister to decide. Alternatively, the tribunal may have made its finding on this issue by taking irrelevant matters into account, in relying on what was said about the January 2022 draft submission in paragraph 6 (and its footnote) of the DVLA’s Response. That arguably constituted assertions / submissions, not evidence.

36.

Further or alternatively, it was arguably procedurally irregular for the tribunal to determine Dr Wise’s appeal in the absence of relevant evidence (the January 2022 and August 2022 draft submissions), which the DVLA had been directed to provide through the closed bundle. The tribunal did not address the overriding objective and why it remained satisfied it could properly determine the issues without a hearing (rule 32(1)(b) of the 2009 Rules), in particular, given Dr Wise had not seen the closed bundle and therefore could not know the draft Ministerial submissions had not been provided.”

I did not grant Dr Wise permission to appeal on any other of the grounds he had put forward.

Ms Roe provided the response for the ICO. Ms Roe stated the ICO does not oppose the appeal in relation to the three grounds on which I granted permission to appeal. Ms Roe submitted that if the Upper Tribunal finds the FTT made an error of law in respect of one or more of those grounds, the Upper Tribunal should set aside the FTT’s decision and remit the case to the FTT to be heard by a differently constituted panel. Ms Roe indicated the ICO consented to a decision without reasons and did not seek an oral hearing of Dr Wise’s appeal.

Mr Lewin of Counsel settled the response for the DVLA. Paragraph 18 of the Response confirms the DVLA considers each of the three grounds on which I granted permission to appeal to be made out. Mr Lewin submits the FTT’s decision was wrong in law and it could not properly determine that the DVLA held no information within scope of the request, without having considered for itself the draft submission it had not seen.

Mr Lewin invites the Upper Tribunal to set aside the FTT’s decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.

Mr Lewin submits that the DVLA made an error in the response it provided to Dr Wise’s FTT appeal. Mr Lewin explains the draft Ministerial submission that DVLA holds contains metadata confirming it was first created on 08 September 2022. He explains the DVLA Response to the FTT appeal wrongly stated an earlier version of that submission was held on 24 January 2022 (at the time when DVLA provided its FOI response to Dr Wise).

The DVLA has provided a witness statement from Mark Chatham dated 09 January 2025, with exhibits including open material and also some closed material (that has not been disclosed to Dr Wise). Mr Chatham’s witness statement indicates that, amongst other matters, the DVLA made an error in believing that the draft Ministerial submission dated 08 September 2022 existed at the date of Dr Wise’s request.

Mr Chatham’s witness statement emphasises the point made by Mr Lewin about the metadata in the draft Ministerial submission proving it was first created on 08 September 2022. Paragraph 16 of the statement states Mr Chatham must retract footnote 1 to paragraph 6 of the DVLA’s response to the FTT appeal, which incorrectly stated a version of the draft Ministerial submission existed in January 2022. Mr Chatham apologises that the FTT was inadvertently misled by what the DVLA incorrectly wrote in its response.

On behalf of the DVLA, Mr Lewin submits that as the dispute in the appeal is narrow, and the Upper Tribunal has the benefit of Mr Chatham’s statement, the DVLA considers the Upper Tribunal should re-make the FTT’s decision, make its own findings of fact and dismiss Dr Wise’s appeal.

Mr Lewin submits that Mr Chatham’s evidence is sufficient to demonstrate on the balance of probabilities that the DVLA did not hold information within scope of Dr Wise’s request at the date of his FOI request on 12 January 2022. He argues that the ICO was correct to dismiss Dr Wise’s complaint for the reasons given in its Decision Notice dated 21 November 2022. On this basis, he invites the Upper Tribunal to dismiss Dr Wise’s appeal against the ICO’s decision, on the basis of the papers.

Dr Wise’s position is that he and the DVLA agree the FTT’s decision contained errors of law. He does not agree with the DVLA’s submissions that the Upper Tribunal should remake the FTT’s decision by dismissing his appeal against the ICO’s decision. Dr Wise contends that he brought his appeal against the ICO’s decision, relying on section 58(1)(b) of FOIA. He argues that his appeal relates to the ICO exercising a discretion, and that the ICO ought to have exercised his discretion differently. Dr Wise refers to the First-tier Tribunal decision in Matalia v Information Commissioner (EA/2021/0302) in support of the argument that the Tribunal should consider whether the ICO exercised his discretion reasonably given the evidence available at the date of the ICO’s decision, without considering any evidence that was not before the ICO at the date of his decision.

Dr Wise submits that he would be content for the Upper Tribunal to exercise its powers under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and remake the FTT’s decision on the papers, if the Upper Tribunal shares his interpretation that it should consider his appeal under section 58(1)(b) of FOIA only in the context of the evidence before the ICO at the time of his Decision Notice. Effectively, this is an indication Dr Wise would agree to the Upper Tribunal deciding his substantive appeal on the papers, if it decides it in his favour.

Dr Wise submits that if the Upper Tribunal considers the DVLA’s position to be legally correct about section 58(1)(b) of FOIA, he believes an oral hearing would be essential before the FTT’s decision is remade. Dr Wise submits that this is because, in his view, there are serious defects in the evidence that the DVLA has provided. He has listed his concerns about the evidence in Appendix 1 to his response to the Upper Tribunal.

Neither the ICO nor the DVLA asked for an oral hearing of Dr Wise’s appeal to the Upper Tribunal. Dr Wise linked the question of having an oral hearing to whether the Upper Tribunal decides to remake the FTT’s decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, rather than remitting the case to a new Tribunal under section 12(2)(b)(i) of that Act. I have taken the parties’ preferences into account.

I have decided the interests of justice do not require an oral hearing of Dr Wise’s appeal to the Upper Tribunal. Dr Wise and the DVLA agree that the FTT made material errors of law in its decision. The ICO does not oppose that position. It is therefore unnecessary to have an oral hearing in order to decide whether the FTT made material errors of law, which is the matter the Upper Tribunal is required to determine.

For the reasons set out below, I have decided that the FTT made material errors of law in its decision, and that the case should be remitted to a new First-tier Tribunal to decide under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

Given these matters, it is proportionate to determine Dr Wise’s appeal to the Upper Tribunal on the papers. The parties can then decide whether they want the FTT to hold an oral hearing of Dr Wise’s substantive appeal. Deciding Dr Wise’s appeal to the Upper Tribunal on the papers is proportionate in terms of use of time and avoiding delay. All of these are consistent with the overriding objective in rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The parties will retain the opportunity to participate in the substantive appeal before the FTT.

The FTT made material errors of law in its Decision dated 15 March 2024, for the reasons set out below.

Inadequate factual findings: The FTT failed to make adequate findings of fact, supported by evidence, about which information the DVLA held at the date of Dr Wise’s FOI request. The FTT referred to the DVLA holding a number of documents that appeared to be within scope of Dr Wise’s request. It did not explain which documents these were. As I explained when granting permission to appeal, on the basis of what the FTT decided, it appeared that only one document would potentially have been within scope of Dr Wise’s request in January 2022. The FTT’s Decision suggests, but does not explain, more than one document were potentially in scope.

For the ICO, Ms Roe refers, in general terms, to the Practice Direction issued by the Senior President of Tribunals about Reasons for decisions (“the Practice Direction”). However, none of the guidance in the Practice Direction can resolve the inadequacies in the FTT’s Decision. See, for example, paragraph 5 of the Practice Direction, which confirms that where reasons are given, they must always be adequate, clear, appropriately concise and focused on the principal controversial issues on which the outcome of the case has turned.

Identifying which information the DVLA held at the date of Dr Wise’s FOI request and whether it was in scope of his request, were some of the principal issues between the parties that the FTT needed to resolve. The FTT’s failure to make adequate findings of fact about which information the DVLA held at the date of Dr Wise’s FOI request, prevents its reasons from achieving the standard indicated in paragraph 5 of the Practice Direction.

Perverse or irrational findings on a matter material to the outcome of the appeal: The FTT found that a draft Ministerial submission was not to be equated with the terms of reference for a review. It did so without having seen or read the submission in question. It was not open to the FTT, on the evidence before it, to conclude that a document it had not seen, did not contain certain information.

As I explained when granting permission to appeal, it is not self-evident that a submission to a Minister would never contain information about the terms of reference of a review. A submission might ask a Minister to approve the draft terms of reference of a review that was to be carried out. In those circumstances, it would be surprising for the submission not to contain the terms of reference.

As an example of a perverse finding of fact, the Court of Appeal confirmed at paragraph 19 of Braintree DC v Thompson [2005] EWCA Civ 178, that it will be an error of law to find a fact if there is no evidence to support that finding. That position applies here. There was no evidence before the FTT to support its finding that draft Ministerial submissions it was told existed in January 2022 and September 2022 but which the FTT had not seen, did not contain information about the terms of reference Dr Wise sought.

Procedural irregularity by determining Dr Wise’s appeal on the papers in the absence of relevant evidence: The FTT did not explain its decision to determine the appeal without the draft Ministerial submission(s) in question. In principle, they were highly relevant to what it needed to resolve. The FTT did not explain whether it considered adjourning the appeal to obtain the submission(s) and why it decided instead to proceed. It did not address the overriding objective and why it remained satisfied it could properly determine the issues in the appeal without a hearing (rule 32(1)(b) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009). The decision to proceed represents procedural irregularity by the FTT. Alternatively, the FTT failed to provide adequate reasoning for that part of its decision, by failing to explain why it chose to proceed.

The above errors of law were each material because they were each capable of making a difference to the outcome of Dr Wise’s appeal.

Dr Wise has raised this issue in his response to DVLA’s submissions. Dr Wise has argued that he brought his appeal against the ICO’s decision dated 21 November 2022, under section 58(1)(b) of FOIA. This appears to be on the basis that he believes the ICO made its decision exercising a discretion, that he ought to have exercised differently.

It is not clear that Dr Wise’s appeal to the FTT was brought under section 58(1)(b) of FOIA. The elements of the ICO’s decision that Dr Wise challenges do not appear to be exercises of discretion, but conclusions about factual matters, in particular that:

Section 58(1)(a) of FOIA deals with where a First-tier Tribunal decides that the (ICO) notice against which the appeal is brought is not in accordance with the law.

In Information Commissioner v Malnick and ACOBA [2018] AACR 29 (“Malnick”), a three-judge panel of the Upper Tribunal confirmed that First-tier Tribunal decisions (and predecessor decisions of the Information Tribunal) are first instance decisions and do not carry the status of being legal precedents (paragraph 44 of decision).

At paragraph 45 of its decision in Malnick, the Upper Tribunal cited and approved, paragraph 14(1) to (7) of the Information Tribunal’s decision in Guardian Newspapers Ltd and Heather Brooke v Information Commissioner and British Broadcasting Corporation (EA/2006/0011 and EA/2006/0013) (“Brooke”). The effect of the Upper Tribunal approving this passage was to make this part of Brooke binding on First-tier Tribunals. It includes the following matters that are relevant to Dr Wise’s argument:

The parts of Brooke that the Upper Tribunal approved in Malnick, indicate the tribunal needs to consider relevant evidence provided to it by the parties, and that this may include evidence not before the ICO when it made the decision against which a party is appealing. The discussion of section 58(1)(a) indicates that this applies wherever a tribunal is deciding whether the FOIA provisions have been applied correctly. As indicated at paragraph 50(a) to (d) above, the matters addressed in the ICO’s Decision Notice appear to sit more clearly within section 58(1)(a) than section 58(1)(b).

In any event, paragraph 14(7) of Brooke indicates that even where the appeal is brought under section 58(1)(b) of FOIA, the FTT’s decision may be affected by its factual findings, which will be based on the evidence before it and which may be different to what was before the ICO.

I have not received submissions from the other parties on this issue. Dr Wise may wish to consider the terms of the decision in Malnick, and its approval of paragraph 14(1) to (7) of Brooke. Malnick confirms it is open to a tribunal to consider evidence that was not before the ICO at the date of the ICO’s decision. The passages approved in Malnick do not appear to exclude that approach where the appeal is made under section 58(1)(b) of FOIA.

Single judges of the Upper Tribunal are to follow a decision of a three-judge panel of the Upper Tribunal unless there are compelling reasons why they should not. There are no such reasons for me not to follow the legal principles established in Malnick, including its approval of Brooke.

As Upper Tribunal Judge Wikeley explained at paragraph 21 of Lin v Information Commissioner [2023] UKUT 143 (AAC), the precise meaning of section 58 has been the subject of some debate but that it is perfectly clear the FTT’s remit under section 58 is to conduct a full merits review that may involve making different findings of fact to those of the ICO. I add that in doing so, an FTT will need to consider the relevant evidence before it, including any evidence that was not before the ICO.

Having decided the FTT’s decision involved material errors of law, it is appropriate to exercise my discretion to set aside the Tribunal’s decision dated 15 March 2024 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having done so, section 12(2)(b) of that Act provides that I must either remit the case to the First-tier Tribunal with directions for their reconsideration or remake the decision.

The ICO has not asked me to remake the FTT’s decision. Dr Wise has asked me to remake the decision if I agree with his legal interpretation of restrictions on considering evidence that was not before the ICO. It follows from what I have set out at paragraphs 51 to 58 above that I do not consider his interpretation reflects the settled case law, including a decision by three-judge panel of the Upper Tribunal.

The DVLA has also asked me to remake the FTT’s decision, but in favour of its position and based on the position set out in Mr Chatham’s witness statement.

In my assessment, further facts need to be found in this appeal, not least because further evidence has been produced by the DVLA in the form of Mr Chatham’s witness statement. Dr Wise has raised a range of arguments about the quality of the evidence produced by the DVLA, including what he argues are inconsistencies in Mr Chatham’s witness statement. These relate to several changes in DVLA’s position over time. The DVLA acknowledges those changes and has apologised for inadvertently misleading the FTT and for a number of errors in how the DVLA dealt with Dr Wise’s request and subsequent complaint to the ICO. The new evidence, and the parties’ arguments about it, will require evaluation by a tribunal, which will need to make relevant findings of fact. The importance of those findings of fact, and how they may affect the outcome of the appeal, is emphasised at paragraphs 53 and 54 above.

The First-tier Tribunal is the primary Tribunal for making findings of fact. It is best placed to evaluate the evidence, including using its expertise, and to make appropriate findings of fact. It will have the opportunity to see all the evidence and arguments raised by the parties, and to reach conclusions about them.

I therefore remit Dr Wise’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about whether the ICO’s Decision Notice dated 21 November 2022 was in accordance with the law, and / or to the extent that it involved an exercise of discretion by the ICO, he ought to have exercised his discretion differently.

Although I have set aside the Tribunal’s decision dated 15 March 2024, I am not making any findings, or expressing any view, about the issues that arise in Dr Wise’s appeal. The next tribunal will need to hear evidence and make its own findings of fact and provide its reasoning for the decision it reaches.