The Upper Tribunal has recently been called on to consider the test for the reasonableness of a qualified person's opinion under s.36 FOIA. Robin Hopkins examines the outcome.
The Upper Tribunal’s most recent judgment – IC v Malnick and ACOBA (GIA/447/2017) – is a rare thing these days: a binding decision that makes a meaningful and general (rather than fact-specific) contribution to FOIA jurisprudence. In particular, it tells us (1) how to assess the reasonableness of a qualified person’s opinion for section 36 FOIA purposes, and (2) whether the FTT can remit a case to the ICO for a fresh decision if it allows an appeal.
Mr Malnick, the Deputy Investigations Editor of The Daily Telegraph, asked the Advisory Committee on Business Appointments (ACOBA) for information on its correspondence with Tony Blair over the period 2005-09 concerning private sector roles which Mr Blair proposed to take up after stepping down as Prime Minister.
The request was refused under sections 36(2) FOIA (prejudice to free and frank provision of advice/exchange of views between public officials like Mr Blair and ACOBA) and 40(2) (personal data). The ICO agreed with ACOBA, but the FTT – chaired by the then Chamber President, Peter Lane (now Mr Justice Lane) upheld Mr Malnick’s appeal (see my post here). It held that the ICO’s decision was not in accordance with the law and that the ICO would “therefore need to issue a new decision notice, which does not rely on [section 36]”. In effect, the FTT remitted the matter to the ICO for consideration of the personal data exemption.
The ICO appealed, on grounds relating to section 36 and to the power to remit cases to the ICO. The UT’s judgment is here GIA 447 2017 Malnick Final.
Section 36 FOIA
In my post on the FTT’s decision, I described its treatment of section 36 as striking: the FTT held that the opinion of the qualified person, Baroness Browning, was unreasonable, because she failed to have regard to relevant considerations (including points made in her own evidence to the Public Administration Constitutional Affairs Committee).
On appeal, the ICO and ACOBA argued that the FTT had applied the wrong legal tests for the reasonableness of the QP’s opinion and had reached perverse conclusions. The UT upheld the appeal. Key points are:
“The QP is not called on to consider the public interest for and against disclosure. Regardless of the strength of the public interest in disclosure, the QP is concerned only with the occurrence or likely occurrence of prejudice” (para 32). The FTT erred by conflating the two.
While the UT did not need to determine the perversity challenge, it was inclined to uphold it: “It is difficult to see how an applicant would be encouraged to be open and frank about, say, matters of commercial sensitivity if there was a risk that those discussions would subsequently be made public” (para 42).
“… ’reasonable’ in section 36(2) means substantively reasonable and not procedurally reasonable” (para 56). The long-established and commonly-followed approach from Guardian Newspapers Ltd and Heather Brooke v ICO and BBC (EA/2006/0011 and EA/2006/0013) – whereby you assess the substance of the opinion and the process by which it was reached – is wrong.
The fact that the QP has provided an opinion must be taken into account in the public interest balancing test (paras 29 and 65).
Remitting to the ICO?
In Information Commissioner v Bell  UKUT 106 (AAC), the UT (Judge Jacobs) held that, where the FTT allows an appeal against an ICO decision, it has no power to remit the matter to the ICO. It must re-make the decision itself.
In Malnick, the UT has agreed, albeit on a differently-reasoned basis. By analysis of the statutory scheme of FOIA, “once the Commissioner has issued a decision notice stating that the authority has complied with section 1 (and any additional duties under sections 11, 16 or 17, if they arise for consideration), the Commissioner has entirely discharged her functions under section 50. The Act makes no provision for the Commissioner to amend or supplement her decision, or to exercise any other function” (para 81).
To allow more than one IC decision on the same complaint would be “a recipe for procedural mayhem” (para 85). So, if the FTT finds that the IC’s decision was wrong, it must allow the appeal and issue a fresh decision: “the only way in which allowing the appeal can be given practical effect is if the FTT is also able to substitute a correct notice” (para 103).
The UT also gives very clear (and common-sense) guidance of what the FTT must do when more than one exemption is relied upon: see para 109.