Norman Ingle v The Information Commissioner & Anor.

The first ground of appeal is that the FTT misdirected itself in holding that the 5 documents amount to the Appellant’s personal data. The Appellant’s case is that rather than constituting his personal data, the 5 documents relate to an issue, namely whether the Council produced a misleading road accident plan in 1970.

The legal framework is relatively straightforward.

Section 40(1) FOIA provides that “Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject.” This is an absolute exemption and so is not subject to any public interest test (see section 2(3)(f) FOIA). The policy intention is clear, namely that disclosure of personal data should be determined under the DPA regime and not FOIA. Accordingly, “personal data” is defined by reference to the DPA 2018 (see FOIA section 40(7)). Thus, section 3(2) DPA 2018 defines “personal data” as “any information relating to an identified or identifiable living individual”. Section 3(3) further provides: ““Identifiable living individual” means a living individual who can be identified, directly or indirectly, in particular by reference to— (a) an identifier such as a name, an identification number, location data or an online identifier, or (b) one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.” Plainly, that is a very broad definition.

The FTT was satisfied that the Information Commissioner had applied the correct legal test and that his Decision Notice involved no error of law. By the same token, I am satisfied that the FTT likewise applied the correct legal test and its decision involves no error of law.

The Appellant’s first ground of appeal is based on a fundamental misconception. His arguments proceed on the basis that any given document has one immutable character for all legal purposes. Therefore, he argues, as the 5 documents have been described at some point in the past as related to ‘an issue’ (be that a complaint, a legal claim or the (alleged) facts underpinning that complaint or claim), it follows that they cannot now be described as personal data. But, as the FTT correctly found, “To categorise information as part of an issue does not mean that it is not also Personal Data at the same time, The two are not mutually exclusive. Ultimately the Commissioner during her investigation has clearly, and properly in our view, identified the withheld information included in the 5 documents in question as a subject access request for the Appellant’s own personal data” (paragraph 24).

Putting the point another way, the nature of a document will depend on the legal prism through which the document is being viewed. There is, moreover, no absolute right to documents held by a public authority. In the context of a FOIA request, the Information Commissioner and the FTT were both correct to find that the section 40(1) exemption applied as the 5 documents comprised the Appellant’s personal data. In the context of a DPA subject access request, a different series of exemptions come into play, and the Information Commissioner has found that the Council was entitled to withhold the same information on the basis of LPP.

It follows that Ground 1 fails.

The second ground of appeal is that the FTT misdirected itself in holding that the doctrine of estoppel had no application to the circumstances of this case.

Unfortunately for Mr Ingle, this ground of appeal also goes nowhere. The doctrine of estoppel is a common law notion which must give way to the principles of a statutory scheme. There is ample authority in the case law for the principle that a public authority is not estopped from relying on an exemption under FOIA simply because it has failed (whether consciously or by oversight) to rely on that same exemption at some earlier stage in the proceedings.

This principle was clearly established by the decision of Upper Tribunal Judge Jacobs in Information Commissioner v Home Office [2011] UKUT 17 (AAC); [2012] AACR 32 (emphasis added):

The Court of Appeal, in the joined case of Birkett v Information Commissioner and DEFRA [2011] EWCA Civ 1606, adopted a similar approach in the parallel context of disclosure under the Environmental Information Regulations 2004, ruling that “the court must consider de novo the propriety of releasing the information. Such a process is bound to discover errors and omissions in the exceptions relied upon in initial decisions, and it would be surprising, given the balancing exercise required by the Directive, if those errors were incapable of subsequent correction” (at paragraph 23).

True, section 17 of FOIA requires a public authority which is relying on an exemption to issue a requester with a notice to that effect, specifying the exemption in question and stating why it applies. However, this is a purely procedural provision. A three-judge panel of the Upper Tribunal, reviewing Birkett and related case law, has ruled as follows in FCDO v Information Commissioner, Williams and Others (Sections 23 and 24) [2021] UKUT 248 (AAC) (at paragraph 46):

It is therefore plain from the case law that there is no legal obligation on a public authority to plead all the potentially applicable exemptions that may apply under FOIA. It is equally plain that a public authority cannot be “estopped” from relying on a particular FOIA exemption simply because it did not rely on it at some earlier stage in the proceedings. It follows that having decided, albeit somewhat belatedly, that the absolute exemption under section 40(1) applied, the Council was entitled to decide to put all its eggs in one FOIA basket and rely on the personal data exemption, irrespective of whether there was one or more other exemptions (or exceptions) that might also apply. It may be that the public authority could have relied upon the LPP exemption. It may be that the Council could have sought to rely on the vexatious request exception under FOIA section 14. Be all that as it may, the Council had decided to nail its colours to the mast of section 40(1) and to rely exclusively on that exemption. There was, in any event, no unfairness so far as Mr Ingle’s participation in the appeal was concerned, as the application of the FOIA personal data exemption was considered afresh by the FTT.

It follows that Ground 2 also cannot succeed.

The third ground of appeal is that, if the scales were evenly balanced, then the FTT should have found for the Appellant as he came “to the Tribunal with clean hands” and “the Council cannot be allowed to win by trickery and subterfuge”.

This ground of appeal is hopeless.

In the first place, the ‘scales’ are not evenly balanced. The challenges to the Information Commissioner’s Decision Notice exemplified by the first and second grounds of appeal are without foundation for the reasons explained above. Secondly, this is not a jurisdiction in which a party can receive ‘the benefit of the doubt’ – either the requested information was exempt as a matter of law under the claimed FOIA exemption or it was not. The FTT’s function was then to establish whether there was any error of law in the Information Commissioner’s Decision Notice. Thirdly, and in any event, there has been no ‘trickery and subterfuge’ in the conduct of these proceedings on the part of the public authority. For the reasons already given, the Council was entitled to revise its position as the FOIA process unfolded and there was no unfairness involved as the Appellant was given an opportunity to make his submissions to the FTT on the question of section 40(1).

I note that both of the Respondents to this appeal question whether this third ground of appeal can properly be characterised as a ‘point of law’. In the second round of submissions, they have each raised the possibility that this aspect of the Appellant’s case should be struck out under rule 8(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) for want of jurisdiction (see Christie v Information Commissioner [2022] UKUT 315 (AAC) at paragraph 25). I can see some considerable merit in that argument. However, I have to bear in mind the overriding objective at all times, including the importance of acting proportionately and avoiding delay. A strike out under rule 8(2) requires that the appellant is given a prior opportunity to make representations in relation to the proposed striking out (rule 8(4)). In the circumstances of this case, where a proposed strike out had not been ventilated in the first round of written submissions, I considered it simplest to assume that ground 3 was within the proper scope of a point of law and to proceed to determine the appeal as a whole.

In any event, for all the reasons above, Ground 3 is without foundation.

The FTT’s ruling on the Appellant’s application for permission to appeal to the Upper Tribunal set out the general principles involved and Mr Ingle’s proposed grounds of appeal. The FTT then concluded as follows:

There are at least two inter-related difficulties with this grant of permission to appeal.

The first is that it is by no means clear whether the FTT Judge was granting permission to appeal on all the grounds of appeal or limited to Ground 3. I am inclined to the view that the former was the case.

Secondly, and more importantly, the basis for the grant of permission to appeal was unclear. Thus, in initial Observations on the consequential Upper Tribunal appeal, I confessed to having some difficulty in following the logic of paragraph 12 of the FTT’s permission ruling, as it appeared to be wholly circular. Having now had the benefit of the parties’ submissions on the appeal, I remain of that view. Put simply, this is a case in which permission to appeal should not have been granted by the FTT. However, permission having been granted, there is no way back.

In this context, I start by endorsing the observations of Upper Tribunal Judge Jacobs in Christie v Information Commissioner [2022] UKUT 315 (AAC) at paragraphs 18-25. Nothing I say should be regarded as detracting in any way from what Judge Jacobs said there. I simply add the following further brief observations on grants of permission to appeal by the FTT.

What follows is not intended to be an exhaustive taxonomy. But there will clearly be some cases where the point at issue is the proper interpretation of some relevant statutory provision that has not previously been tested on appeal. That may well be a good reason for the FTT giving an applicant permission to appeal to the Upper Tribunal. There will be other cases where the point in dispute is some material procedural issue which may arise in other cases before the FTT. That again may well be a good reason for the FTT giving permission to appeal.

But there will be many other cases which on closer scrutiny may reflect no more than a generalised dissatisfaction with the outcome of the appeal and which at best amount to a ‘facts and reasons’ type of challenge. An appeal which ultimately rests only on the fact that the applicant – whether the requester, the Information Commissioner or the public authority – disagrees with the outcome does not raise an arguable error of law. It may be better for the FTT to refuse permission to appeal in these latter types of cases, bearing in mind that the applicant always has the right to renew their application afresh before the Upper Tribunal (at no or minimal cost) and the respondent has (or the respondents have) a reasonable expectation that they will not be put to the cost and trouble (as here) of participation in and having to defend an Upper Tribunal appeal without good reason. With respect, and given its typical caseload across a wide range of jurisdictions, as a general rule the Upper Tribunal is better placed than the FTT to determine whether there is an arguable error of law in a ‘facts and reasons’ challenge. This was one such case. Indeed, had permission to appeal been refused by the FTT, I consider it most unlikely that any Upper Tribunal Judge would have given permission to appeal on any of the grounds of appeal.

I conclude that the decision of the First-tier Tribunal involves no error of law. I therefore dismiss the appeal (Tribunals, Courts and Enforcement Act 2007, section 11). My decision is also as set out above.