Case Reference: EA/2023/0458
Information Rights
Heard: By CVP
28 February 2025
Before
TRIBUNAL JUDGE SOPHIE BUCKLEY
TRIBUNAL MEMBER DAVE SIVERS
TRIBUNAL MEMBER RAZ EDWARDS
Between
DEBORAH COX
Appellant
and
(1) THE INFORMATION COMMISSIONER
(2) THE HOME OFFICE
Respondent
Representation:
For the Appellant: Mr. Richardson, Counsel (28 February 2025)
Mr. Radcliffe, Counsel (7 May 2024)
For the First Respondent: Did not appear
For the Second Respondent: Mr. Knight, Counsel (28 February 2025)
Decision:
1. The appeal is Allowed.
2. There is no order as to costs.
Substituted Decision Notice:
Organisation: The Home Office
Complainant: Deborah Cox
The Substitute Decision – IC-225780-G2F4
1. The Home Office does not rely on any exemptions and the information sought has been disclosed.
2. No further steps are required.
REASONS
This is an appeal against the Commissioner’s decision notice dated 5 October 2023 which held that the Home Office were entitled to withhold an inspection report relating to MBR Acres dated 5 July 2022 under section 36(2)(b)(ii) of the Freedom of Information Act 2000 (‘FOIA’).
During the course of the appeal the Home Office was joined as a party and relied in addition on sections 44(1)(a), 38(1)(a) and (b) and 40 FOIA.
The Appellant confirmed in her Reply that she did not seek release of any personal information and project licence numbers.
The Home Office disclosed the requested information by letter dated 11 February 2025, with personal information and licence numbers redacted.
At the start of the hearing on 28 February 2025 both the Home Office and the Appellant agreed to a decision in the terms set out above.
A consent order was not appropriate because the Commissioner did not consent to the decision. The Commissioner did not attend the hearing but sent the following emails to the tribunal on the day of the hearing:
An email referring to a previous first-tier tribunal decision in which the tribunal had refused to determine an appeal where the information had been disclosed to the appellant.
An email in relation to the draft proposed consent order which stated, in so far as it is material:
“In the absence of a Tribunal Rule which allows the disposal of a now academic appeal, and considering the terms of the draft Consent Order the Commissioner has the following comments:
…
- The Commissioner would be agreeable to a Consent Order recording that the appeal is concluded by way of withdrawal, with an explanation of why the appeal was withdrawn being recorded, perhaps referring to the overriding objective.
- In the alternative the appeal is recorded as concluded by way of order without prejudice to the positions the parties have advanced in their respective pleadings.”
The tribunal notes the previous decision of the first-tier tribunal but, as that decision is not binding, there is no need to distinguish it. This tribunal takes the view that it has jurisdiction to determine an appeal even if the requested information has been disclosed. This is implicit in paragraph 76 of the Upper Tribunal’s decision in Montague v Information Commissioner and DIT[2022] UKIT 104 (AAC).
There is no need for a ‘Tribunal Rule’ to allow the disposal of an appeal where the requested information has already been disclosed. The tribunal’s jurisdiction comes from FOIA. The effect of section 58 of FOIA is that the tribunal exercises a full merits review and stands in the shoes of the Commissioner. The public authority may alter its position in relation to the exemptions relied on following the decision notice, and the tribunal reaches its decision on the basis of the exemptions relied on in the tribunal proceedings.
In the light of the fact that the Home Office no longer relies on any exemptions, the tribunal disagrees with the Commissioner’s conclusion in the decision notice and is accordingly entitled under section 58 to allow the appeal and substitute a decision notice.
Signed Sophie Buckley
Judge of the First-tier Tribunal
Date: 12 March 2025