Judge remits FOI case after finding First-Tier Tribunal was wrong to strike out proceedings, amid doubts over reliability of previous evidence from council

A decision by the First Tier Tribunal (FTT) in 2022 to strike out proceedings concerning a freedom of information (FOI) request submitted to Northumberland County Council involved an error in a point of law and should be remitted for a rehearing, an Upper Tribunal judge has decided.

In Tilson v Information Commissioner [2024] UKUT 83 (AAC), Upper Tribunal Judge Jacobs found the FTT did not consider the appellant's response in full.

The case concerned a FOI request made by Peter Tilson, which the county council refused because it said all the information was readily available on its planning portal. The local authority maintained that position on internal review.

Tilson complained to the Information Commissioner, who concluded that the council did not hold the information requested.

Tilson later appealed to the FTT, on grounds that Upper Tribunal Judge Jacobs said it was "fair to say" read "more as a complaint about the council's failure to retain documents than a challenge to the Commissioner's decision that it did not hold them".

"It was on that ground that the Commissioner applied to the First-tier Tribunal to strike out the proceedings as having no reasonable prospect of success," the Upper Tribunal judge added.

The FTT struck out the proceedings in December 2022 after concluding that "the Appellant's prospects of success in this appeal must be seen as falling into the 'fanciful' rather than the 'realistic' category of cases".

In refusing the appeal, the FTT said it was not the tribunal's role to consider whether information should have been held or to make enforcement or information orders against a public authority.

Tilson then appealed to the Upper Tribunal, which gave permission for the appeal.

In the permission decision, Judge Jacobs said: "I can find no flaw in [the FTT's] reasoning insofar as it relates to the grounds submitted when Mr Tilson lodged his appeal.

"The reasoning on his response to the proposed strike out is another matter. That response does contain a lot of material that relates to the practice the council should have followed.

"The First-tier Tribunal appears to have overlooked paragraph 24, which begins: 'The Appellant is not content with the finding that the Council does not hold the information requested.'"

The judge said this part of the response was a challenge to the Commissioner's finding and was an issue the FTT had jurisdiction to consider.

"The tribunal's reasoning does not deal with that argument," the judge said.

As a result, Judge Jacobs found that the FTT had failed to consider the whole of Tilson's response, meaning that there the test for giving permission to appeal was satisfied.

The Upper Tribunal judge also noted that there was now more information available than was before the First-tier Tribunal.

“Mr Tilson has since been to the Ombudsman and the council has provided its event log, which shows that it inserted into its portal a 'Statement and 3rd Party Reps – Peter Tilson' on 14 November 2019 at 14:43. That record has not been produced before and casts doubt on the reliability of the council's previous evidence. It shows that it did at one time hold information provided by Mr Tilson,” Judge Jacobs said.

“That fact, together with the numerous citations provided by Mr Tilson to show the council's responsibilities on retaining documents, place a practical burden on the council to justify its assertion that it does not hold the information requested.”

Judge Jacobs added that “just to avoid any misunderstanding, the issue on this appeal is whether the tribunal was wrong to strike out the proceedings on Mr Tilson's appeal. The Upper Tribunal is not concerned with the separate issue whether the council holds the information he requested.”

The Commissioner supported Tilson's appeal, arguing that, “by a fine margin”, the appellant’s was clearly not "incontestable". It invited the Upper Tribunal to remit the case to the FTT with the suggestion that the tribunal join the council as a party to the proceedings.

The Upper Tribunal judge accepted the Commissioner's submission that the appeal to the Upper Tribunal should be allowed. The case will now be heard by a differently constituted panel of the FTT.

Adam Carey