Ea Lee v The Information Commissioner & Anor

The Decision Notice in this case which was issued by the Information Commissioner (“IC”) on 7 May 2025 (reference IC-344-786-N0Q8) upheld the Appellant’s complaint and required the public authority, NHS England, to issue a fresh response to the Appellant’s requests that does not rely on section 14(1) of the Freedom of Information Act 2000 (“FOIA”).

NHS England duly responded to this Decision Notice on 4 June 2025 and provided a fresh response (the “DN response”) to the Appellant which stated the following:

“NHS England has considered your request further as required in the Decision Notice issued by the Information Commissioner’s Office on 07 May 2025. NHS England holds some of the information you have requested but has decided to refuse the information on the basis that compliance would exceed the appropriate cost limit as defined under section 12 of the FOI Act. NHS England does not hold information in relation to second and third request regarding references. Dr Cass referenced her own report, and NHS England does not hold any information relating to the inclusion of these references. Section 12 NHS England considers that the first request is exempt under section 12 of the FOI Act.”

The Appellant’s Notice of Appeal (GRC1) dated 21 June 2025 gave as the single ground of appeal “that the Commissioner was wrong to require NHS England to issue a fresh response that does not rely on section 14(1) of the FOIA, without also requiring that the response must not rely upon the assertion that the requested information is not held.”

The IC applied by way of form GRC5 dated 14 July 2025 to strike out the Appellant’s appeal under Rule 8(3)(c) on the basis that there was no reasonable chance of it succeeding. The reason given was that the Appellant has not provided any grounds of appeal that would disturb the IC’s Decision Notice, the appeal does not therefore challenge the IC’s findings and fails to set out how the Decision Notice is not in accordance with the law.

The IC provided further reasons for the strike-out application in its Response dated 14 July 2025. In this Response it made the following points

The Appellant responded to these points in their Reply dated 28 July 2025. They submit that the Decision Notice involved an exercise of discretion by the IC and the IC ought to have exercised its discretion differently.

In relation to the argument that NHS England did not comply with section 1 FOIA until the Decision Notice was issued, the Appellant said that “that ground lacks any factual basis. NHS England had already informed the Commissioner, prior to the issuance of the DN, that it was in the process of locating the Request Information from the Archive Information and had therefore taken the initial steps to respond to the Requests.”.

Rule 8(3)(c) provides that the Tribunal may strike out the whole or a part of the proceedings if the Tribunal considers there is no reasonable prospect of the appellant’s case or part of it, succeeding. Rule 8(4) provides that the appellant must be given an opportunity to respond to such an application; I consider they have done so in filing their Reply which also deals with the strike out application.

The IC in his Response referred to the Upper Tribunal decision of HMRC v Fairford Group (in liquidation) and Fairford Partnership Limited (in liquidation) [2014] UKUT 329 (TCC) (“Fairford”), which deals with the application of Rule 8(3)(c) at paragraph 41:

“In our judgment an application to strike out in the FTT under rule 8(3)(c) should be considered in a similar way to an application under CPR 3.4 in civil proceedings (whilst recognizing that there is no equivalent jurisdiction in the First-tier Tribunal Rules to summary judgment under Part 24). The Tribunal must consider whether there is a realistic, as opposed to a fanciful (in the sense of it being entirely without substance) prospect of succeeding on the issue at a full hearing, see Swain v Hillman [2001] 2 All ER 91 and Three Rivers (see above) Lord Hope at [95]. A ‘realistic’ prospect of success is one that carries some degree of conviction and not one that is merely arguable, see ED & F Man Liquid Products v Patel [2003] EWCA Civ 472. The tribunal must avoid conducting a ‘mini-trial’. As Lord Hope observed in Three Rivers, the strike out procedure is to deal with cases that are not fit for a full hearing at all.”

Dealing first with the question of whether the Appellant’s case has any prospect of success on the point concerning section 1(1), I turn to look at the IC’s arguments set out in paragraph 5 above. I agree with the IC’s analysis that both section 14(1), which was relied upon to refuse the requests giving rise to the Decision Notice, and section 12(1) which was relied on in part of the DN Response, do not oblige the public authority to apply section 1(1) of FOIA. Section 1(1) was therefore not part of the complaint to the IC which gave rise to the Decision Notice, because at that point it had not come into play. I consider it would therefore not be open to the IC in its Decision Notice to stipulate that the public authority could not rely on it. As the obligation under section 1(1) is the starting point for any response to an information request under FOIA and is displaced by exemptions rather than exemptions displacing the obligation, this would have meant that NHS England would not have been able properly to issue a response which considered the request afresh. For these reasons I agree with the IC that the part of the appeal dealing with restricting the response from relying on section 1(1) has no reasonable chance of succeeding and should be struck out under rule 8(3)(c).

Turning to the second argument made by the IC, I consider this is stronger – the point is essentially whether the appeal relates to the Decision Notice, or whether it is actually seeking to appeal the DN Response.

The right of appeal to the Tribunal set out in section 57(1) of FOIA states “Where a decision notice has been served, the complainant…may appeal to the Tribunal against the notice”. It follows, therefore, that where no decision notice has been issued in relation to the public authority’s response to the complainant’s request, there is no right of appeal.

At paragraph 44 of the Reply the Appellant states “the Appeal relates only to NHSE’s assertion that the Requests Information is not held”. The only reference I can find to such an assertion in the Decision Notice was in paragraph 11 which states “with regards to the two information requests relating to discussions about the inclusion of references in the final report, NHS England first stated that it does not hold this information.” However, NHS England subsequently changed its position and the response which the IC was considering in the Decision Notice was on the basis only of section 14(1) of FOIA, which expressly states that “Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious”. Indeed, paragraph 17 of the Decision Notice records that NHS England held extensive information in relation to the review and a search was underway in March 2025. It appears to me therefore that the Appellant’s comment is a reference to the fact they are dissatisfied with the DN response dated 4 June 2025 where it says “NHS England does not hold information in relation to second and third request regarding references” and does not refer to the Decision Notice itself.

It is clear that there has been no Decision Notice which has been made by the IC which relates to the DN Response as opposed to the Decision Notice and there is no evidence that the Appellant has made a complaint to the IC about this response. Indeed, this appears to me to be supported by the Appellant at paragraph 11 of the Reply which states that “Neither the Commissioner nor NHSE has taken any further steps that might render the appeal academic or premature, such as reopening and completing the investigation, responding to a request for clarification or internal review or completing an internal review.”

I consider that in directing NHS England to issue a fresh response to the Appellant’s requests that does not rely on section 14(1), the IC had completed its involvement in the Appellant’s complaint. Once NHS England issued a fresh response, this triggered a fresh right for the Appellant to refer a complaint to the IC under section 50 of FOIA in relation to the DN response, as this was in effect a separate response that replaced the original response relying on section 14(1). In order to appeal the DN response to the Tribunal, I consider that the Appellant should have gone through the steps of making a complaint, seeking internal review and then appealing. This is because in complaining about the DN response, which responded afresh to the Appellant’s information requests, the Appellant is not reopening the original complaint, but making a new one about the DN response.

For these reasons, I consider that the appeal is in fact in relation to the DN response dated 4 June 2025 and not in relation to the Decision Notice. As no Decision Notice has been issued in relation to the DN Response, there is no right of appeal to this Tribunal and the Tribunal does not have jurisdiction to hear any such appeal, so must strike it out under Rule 8(2)(a)

Accordingly, I direct that the appeal should be struck out under Rule 8(2)(a) because the Tribunal does not have jurisdiction to hear it and Rule 8(3)(c) because there is no reasonable prospect of it succeeding.