The requester made repeated requests to the public authority under section 1 of the Freedom of Information Act 2000 for information concerning changes to its practices following the introduction of the Data Protection Act 2018 and the implementation of Parliament and Council Regulation (EU) 2016/679 into domestic law. Following correspondence over several months the requester complained to the commissioner about the authority’s failure to respond to some of his requests and the adequacy of the response to others. The commissioner upheld the complaint and, pursuant to section 50(4) of the 2000 Act, required the authority to take specified steps to respond to the requester’s freedom of information requests in accordance with Part 1 of the Act. The decision notice required the authority to respond to the outstanding requests listed in an appendix within 35 working days. The requester appealed to the First-tier Tribunal under section 57 contending that the decision notice was defective because it did not contain all his outstanding requests or all the requests that he had brought to the commissioner’s attention in his section 50 complaint. The commissioner subsequently conceded the substantive grounds of appeal and accepted that the decision notice was accordingly unlawful. Separately, and during the course of the tribunal proceedings, the public authority sent to the requester what it considered to be the substantive response to all his requests, including those that had been erroneously omitted from the commissioner’s decision notice. The commissioner proposed that the requester’s appeal be disposed of by way of a consent order allowing the appeal and recording that the authority, having issued a substantive response to the requests, was not required to take further steps. However the requester declined that proposal on the basis that the authority had provided inadequate substantive responses to those requests which had been omitted from the decision notice. Determining a preliminary issue, the First-tier Tribunal held that, having regard to the wording of sections 57 and 58 of the 2000 Act, it did not have jurisdiction to consider new issues that were different from those considered by the commissioner in the decision notice being appealed.
On appeal by the requester—
Held, appeal dismissed. (1) The jurisdiction under section 57 of the Freedom of Information Act 2000 was to hear appeals against first instance regulatory decisions. Such proceedings were essentially an appeal against the outcome of a complaint, on which the First-tier Tribunal would consider the regulator’s decision afresh and was empowered by section 58(1) to serve any notice that the regulator could have served at the time of the decision notice. The right of appeal arose solely in relation to the Information Commissioner’s decision notice and nothing in the language of section 57 suggested that the complainant was permitted to introduce, either in addition or in substitution, a wholly new complaint the subject matter of which could not have been the subject matter of the decision notice. The tribunal was neither required nor empowered to bypass the function of the commissioner by deciding whether the public authority’s subsequent substantive responses to previously unanswered requests were in accordance with Part I of the 2000 Act. Accordingly, when determining an appeal against a decision of the commissioner in relation to a freedom of information request, the First-tier Tribunal was confined to determining anew the question that was before the commissioner at the date of the decision notice and did not have jurisdiction also to decide whether the public authority had, since then, dealt with the freedom of information request in accordance with its obligations under Part 1 of the Act. While there might be good reasons why appeals linked to the same freedom of information request ought to be heard together, that was a matter of case management rather than extension of jurisdiction. It followed that the First-tier Tribunal had made no material error of law in declining to consider the adequacy of the public authority’s substantive responses post-dating the issue of the decision notice, since those responses were not the subject of the section 50 complaint and were not, and could not have been, the subject matter of the commissioner’s decision notice under appeal (paras 35, 36, 38, 42, 43, 48, 52, 56).
(2) However, it was it open to the First-tier Tribunal tribunal to reflect the effect of the public authority’s subsequent response in any substituted decision notice which it issued on the appeal, when specifying whether the public authority was required to take specified steps pursuant to section 50(4). Moreover, where, following a section 50 decision notice or section 58 substituted decision notice, a public authority provided a subsequent response to the information request, nothing in the 2000 Act prohibited the information requester from making a further section 50 complaint, or the commissioner from issuing a successive decision notice in relation to that new complaint (paras 53, 56–58).
The requester in person
Michael White (instructed by Information Commissioner’s Office) for the Information Commissioner.