Jones v Information Commissioner & Anor (Northern Ireland) (Information rights : Freedom of information - right of access) [2016] UKUT 82 (AAC) (07 December 2015)

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	Upper Tribunal (Administrative Appeals Chamber)
You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> Jones v Information Commissioner & Anor (Northern Ireland) (Information rights : Freedom of information - right of access) [2016] UKUT 82 (AAC) (07 December 2015) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2016/82.html Cite as: [2016] UKUT 82 (AAC), [2016] AACR 33

IN THE UPPER TRIBUNAL Case No. GIA/607/2012

ADMINISTRATIVE APPEALS CHAMBER

THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

Appellant: Mr William Harrison Jones

First respondent: The Information Commissioner

Second respondent: Department of the Environment (NI)

First-tier Tribunal Case No. EA/2011/0147

First-tier Tribunal Decision Date 20 December 2011

DECISION

This appeal is from a decision of the First-tier Tribunal (General Regulatory Chamber) (“the FTT”) given on 20 December 2011. The decision of the FTT was to strike out the appellant’s appeal to it from the first respondent’s decision notice given on 22 June 2011 under reference FER0327603. The appeal was struck out under rule 8(3) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (“the FTT Rules”).

The appeal is made under section 11(2) of the Tribunals Courts and Enforcement Act 2007, leave to appeal having been granted by me on 8 July 2014. The question before me is whether the decision of the FTT involved the making of an error of law.

For the reasons I give below, I allow the appeal and I set aside the decision of the FTT on the basis that its decision involved the making of an error of law.

However, I proceed to re-make the decision under section 12(2)(b)(ii) of the Tribunals Courts and Enforcement Act 2007 to the effect that the second respondent is entitled to refuse to disclose the information requested on the basis that the exception to disclosure under regulation 12(4)(e) of the Environmental Information Regulations 2004 (“the EIR”) applies.

REASONS

Background

The background circumstances were not disputed, and essentially are that a number of planning decisions were taken in relation to land in the village of Waringstown, Co Armagh. These affected the archaeological heritage and character of the village by permitting the development of dwelling houses on the site of a ráth – a circular enclosure surrounded by an earthen wall used as a dwelling in ancient times – and in the orchard garden of a listed building – the Grange - dating from 1698.

Subsequent investigation by a Planning Service (PS) Audit Team in 2006 found failure to follow agreed consultation procedures with the Environment and Heritage Service (EHS), failure to make planning permission subject to an archaeological condition as recommended by the EHS, further failure to consult with EHS or place an archaeological condition on the planning consent, failure to reflect stated EHS concerns in a recommendation to the PS management board, and failure to reflect a PS management board decision, which made consent subject to an archaeological condition, in the approval actually issued to the developer.

It was subsequently established that the file which included the planning permission to build on the site of the ráth was inexplicably missing. Maladministration was established by the investigation of the PS Audit Team. The Northern Ireland Audit Office was later to say that there was insufficient evidence to conclude that fraud or deliberate wrongdoing occurred in the case, but that there was also insufficient assurance to conclude that it did not.

The appellant was one of a number of local residents who, along with elected representatives, sought an explanation for the events detailed above. In the course of an attempt to obtain information through a Parliamentary question in 2005, it appears that incorrect information was given to a Minister by the second respondent, causing her to mislead Parliament.

At a meeting on 13 October 2006 involving the appellant, an elected representative and senior officials of Department of the Environment (Northern Ireland) (“the second respondent”), the second respondent agreed to seek legal advice on the issue of whether planning permission in relation to the Grange could be discontinued. The appellant was later informed in general terms that the advice was to the effect that it could not. A request by an elected representative for disclosure of the advice received by the second respondent was refused. In March 2010 the appellant then requested “a copy of the recorded questions put to the lawyers”. That request was refused by the second respondent. A complaint to the Information Commissioner (“the first respondent”) led to a decision notice to the effect that the second respondent had correctly refused the request on the basis of an exemption afforded by regulation 12(4)(e) of the EIR and alternatively that regulation 12(5)(b) applied.

The appellant appealed to the FTT. On 20 December 2011 the FTT struck out the appellant’s appeal from a decision notice of the first respondent dated 22 June 2011. The appellant has now appealed to the Upper Tribunal from the decision striking out his appeal.

Following a hearing on 24 June 2015, I granted leave to appeal on the grounds that it was arguable that:

(i) the FTT had an inquisitorial obligation to look beyond the formal grounds submitted by the appellant when addressing the issue of whether an appeal had no reasonable prospects of success;

(ii) the FTT failed to have regard to the overriding objective of dealing with cases fairly and justly when striking out the appeal;

(iii) the FTT had erred in its approach to regulation 12(5)(b) and/or regulation 12(4)(e) of the EIR.

The FTT’s decision

The FTT’s decision was made on 20 December 2011 and was to strike out the appellant’s appeal pursuant to rule 8(3) of the Procedure Rules. In its conclusion, the FTT also used the phrase “Accordingly, the appeal is dismissed”. Nevertheless, despite the latter expression, it is clear that the FTT was, by this decision, acceding to an application for striking out made by the first respondent dated 10 August 2011.

The FTT observed that the appellant did not contest that the requested information amounted to environmental information. The FTT observed that the appellant did not dispute that the exception at regulation 12(4)(e) of the EIR was engaged. The FTT summarised the issue in the case as whether the public interest in maintaining the exception outweighed the public interest in disclosing the information.

The FTT recorded that the appellant had argued that disclosure of the requested information was necessary to reassure the public that proper procedures had been followed by the second respondent and that all the relevant facts had been presented to its legal advisers. The appellant had also submitted that, as the second respondent had indicated the answer given by its legal advisers in general terms, the information ought to be disclosed in full.

The tribunal further recorded that the second respondent had argued that there was a strong public interest in protecting the ability of public authorities to consult legal advisers in confidence, that the legal advice was relatively recent and not confined to a particular case and that disclosure could therefore prejudice the second respondent in future cases.

The tribunal found that the first respondent had performed the balancing exercise between the public interest in maintaining the exemption, as against the public interest in disclosing the information, fairly and reasonably. For that reason the tribunal held that “there is no reasonable prospect of the appellant’s case, or part of it, succeeding.”

Relevant legislation

It is accepted by the parties that the information requested is environmental information and, therefore, that the legislative regime governing the request for information in this case is that contained within the EIR. Of particular relevance is regulation 12, which reads as follows:

Exceptions to the duty to disclose environmental information

12. (1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if—

(a) an exception to disclosure applies under paragraphs (4) or (5); and

(b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

(2) A public authority shall apply a presumption in favour of disclosure.

(3) To the extent that the information requested includes personal data of which the appellant is not the data subject, the personal data shall not be disclosed otherwise than in accordance with regulation 13.

(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that—

(a) it does not hold that information when an appellant’s request is received;

(b) the request for information is manifestly unreasonable;

(c) the request for information is formulated in too general a manner and the public authority has complied with regulation 9;

(d) the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data; or

(e) the request involves the disclosure of internal communications.

(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect—

(a) international relations, defence, national security or public safety;

(b) the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature;

(d) the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law;

(e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;

(f) the interests of the person who provided the information where that person—

(g) was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority;

(i) did not supply it in circumstances such that that or any other public authority is entitled apart from these Regulations to disclose it; and

(ii) has not consented to its disclosure; or

(h) the protection of the environment to which the information relates.

(6) For the purposes of paragraph (1), a public authority may respond to a request by neither confirming nor denying whether such information exists and is held by the public authority, whether or not it holds such information, if that confirmation or denial would involve the disclosure of information which would adversely affect any of the interests referred to in paragraph (5)(a) and would not be in the public interest under paragraph (1)(b).

(7) For the purposes of a response under paragraph (6), whether information exists and is held by the public authority is itself the disclosure of information.

(8) For the purposes of paragraph (4)(e), internal communications includes communications between government departments.

(9) To the extent that the environmental information to be disclosed relates to information on emissions, a public authority shall not be entitled to refuse to disclose that information under an exception referred to in paragraphs (5)(d) to (g).

(10) For the purposes of paragraphs (5)(b), (d) and (f), references to a public authority shall include references to a Scottish public authority.

(11) Nothing in these Regulations shall authorise a refusal to make available any environmental information contained in or otherwise held with other information which is withheld by virtue of these Regulations unless it is not reasonably capable of being separated from the other information for the purpose of making available that information.

The right of appeal in EIR cases derives from regulation 18 of the EIR Regulations and Parts IV and V of the FOIA. The powers of a tribunal on appeal are given by section 57 of the FOIA which provides:

(iv) 58 Determination of appeals.E+W+S+N.I.

(1) If on an appeal under section 57 the Tribunal considers—

(a) that the notice against which the appeal is brought is not in accordance with the law, or

(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

The procedural rules governing the procedure before the FTT are the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (“the FTT Rules”). In the present case, the following procedural rules are relevant.

Overriding objective and parties’ obligation to co-operate with the tribunal

2.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes–

(a) dealing with the case in ways which are proportionate to the importance of

(b) the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(d) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(e) using any special expertise of the Tribunal effectively; and

(f) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Tribunal must seek to give effect to the overriding objective when it–

(a) exercises any power under these Rules; or

(b) interprets any rule or practice direction.

Striking out a party’s case

8.—(1) The proceedings, or the appropriate part of them, will automatically be struck out if the appellant has failed to comply with a direction that stated that failure by the appellant to comply with the direction would lead to the striking out of the proceedings or that part of them.

(2) The Tribunal must strike out the whole or a part of the proceedings if the

Tribunal–

(a) does not have jurisdiction in relation to the proceedings or that part of them; and

(b) does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.

(3) The Tribunal may strike out the whole or a part of the proceedings if–

(a) the appellant has failed to comply with a direction which stated that failure by the appellant to comply with the direction could lead to the striking out of the proceedings or part of them;

(b) the appellant has failed to co-operate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly and justly; or

(4) The Tribunal may not strike out the whole or a part of the proceedings under paragraph (2) or (3)(b) or (c) without first giving the appellant an opportunity to make representations in relation to the proposed striking out.

…

The notice of appeal

22.—(1) An appellant must start proceedings before the Tribunal by sending or delivering to the Tribunal a notice of appeal so that it is received–

(a) if a time for providing the notice of appeal is set out in paragraph (6), within that time;

(b)otherwise, within 28 days of the date on which notice of the act or decision to which the proceedings relate was sent to the appellant.

(1A) …

(2) The notice of appeal must include–

(a) the name and address of the appellant;

(b) the name and address of the appellant’s representative (if any);

(d) the name and address of any respondent;

(e) details of the decision or act, or failure to decide or act, to which the proceedings relate;

(f) the result the appellant is seeking;

(g) the grounds on which the appellant relies; and

(h) any further information or documents required by a practice direction.

…

Leave to appeal

It appeared to me that this case demonstrated the tension that can exist between the formal requirements of the procedural regulations governing appeals and the ability of unrepresented individuals to pursue their case to a tribunal.

I granted leave to appeal as I considered that it was arguable that the tribunal had an inquisitorial obligation to look beyond the formal grounds submitted by the appellant when addressing the issue of whether the appeal had no reasonable prospects of success. I further considered that it was arguable that, by exercising the power of striking out in the circumstances of this case, it had erred by failing to have regard to the overriding objective of dealing with cases fairly and justly.

In its decision the tribunal had made particular reference to the issue of “LPP” (legal professional privilege) such as could arise from regulation 12(5)(b) of the EIR. However, the specific exception relied upon by the second respondent was regulation 12(4)(e), namely communication between government Departments. I considered that it was arguable that the tribunal had erred by conflating these issues.

Hearing

I held an oral hearing of the appeal. The appellant appeared in person. The first respondent was represented by Ms Laura John of counsel. The second respondent was represented by Mr Richard Shields of counsel.

The appellant set out his case briefly. I am appreciative of the diligence and efforts made by the appellant throughout this matter. However, I perceive that, although he is an intelligent man with a professional background as an engineer, the appellant has struggled to get to grips with the legal basis of the decisions made in the case. His written submissions – including his grounds of appeal to the FTT and his response to the first respondent’s application for his appeal to be struck out – therefore understandably do not focus on the legal points to be decided in the case. In the course of the hearing I sought to identify the issues for determination in the appeal and to press the legal representatives on them, while seeking not to give unfair advantage to the unrepresented appellant. I am grateful to Ms John and Mr Shields for their patience with this approach.

In her submissions, Ms John took me to the appellant’s grounds of appeal to the FTT and the first respondent’s response to these. She submitted that the appellant did not dispute the application of regulation 12(4)(e) of the EIR, which was the exception to the requirement of disclosure relied upon in the case. She observed that the appellant raised matters over which the FTT had no jurisdiction. She pointed out that one of the appellant’s grounds was directed at the legal advice received by the second respondent, rather than the instructions to the lawyers which was the actual information requested. It was against this background that the first respondent had submitted to the FTT that no reasonable ground of appeal had been set out by the appellant

Ms John took me to the response of the appellant to the application for striking out. Rather than address the matters raised, this reiterated the appellant’s complaints of wrongdoing. Taken in the round, and in light of the appellant not requesting an oral hearing of this appeal, she submitted that the first respondent’s application and the FTT’s decision in striking out the appeal was entirely right. She submitted that no error of law arose.

Ms John addressed my own enquiry as to whether the FTT was entitled or required to engage in an inquisitorial exercise of going beyond the grounds of appeal. If so, in the particular case, did the FTT err in law? In particular, I asked whether any appeal which involved the balance of public interest test could properly be said to have no prospect of success on the basis that the discretion should have been exercised differently.

Ms John submitted that rule 22(2)(g) of the FTT Rules required the notice of appeal to state the grounds on which the appellant relies – in other words to state the appellant’s case. Rule 8(3)(c) of the FTT Rules permitted striking out where the FTT considered that there was no reasonable prospect of the appellant’s case, or part of it, succeeding. She submitted that the requirement of rule 22(2)(g) to state grounds “had to have some teeth”.

Nevertheless, Ms John accepted that the FTT is inquisitorial not adversarial, and that its proceedings should be characterised by informal and flexibility. It would not be appropriate for a public authority in such proceedings to take technical pleading points. However, she submitted that an appeal should not be transmuted into an enquiry. If the tribunal had an obligation to identify grounds of appeal on behalf of an unrepresented appellant, it could never strike out an appeal. It was incumbent on an appellant to state exactly what bits of a decision are being challenged. Opposing parties would otherwise not know what case they had to answer when making formal response to an appeal under rule 23 of the FTT Rules. I canvassed the issue of whether there would be cases where an obvious ground of appeal had been omitted by an appellant where the FTT could properly strike out the appeal, Ms John submitted that there was no obligation on a tribunal to decline to strike out a case if there was an obvious point which the grounds of appeal had omitted.

I asked Ms John for submissions about the nature of the obligations arising from Article 6 of Directive 2003/4/EC on public access to environmental information. She took me to Article 9 of the Aarhus Convention, to which the European Union acceded on 25 June 1998. The obligation under Article 9 was to provide for a review procedure before a court of law or another independent and impartial body established by law, and to provide for access to challenge the substantive or procedural legality of any decision, act or omission. Recital 5 of Directive 2003/4/EC indicated that provisions of Community Law must be consistent with the Aarhus Convention. Article 6 of the Directive made provision directly equivalent to Article 9 of the Aarhus Convention, However, there was nothing, Ms John submitted, in the Aarhus implementation guide or the legislation which addressed procedures.

In the present case Ms John submitted that the appellant had been granted access to a review procedure as was required. Section 58 of the FOIA made provision for an appeal on merits. A truncated procedure of striking out under rule 8(3)(c) would not breach the Directive.

Turning to the substance of the case in hand, Ms John emphasised that the decision in issue concerned the discontinuation of consent. It was not about the grant of planning permission which involved possible wrongdoing. That factor was not engaged. Rather, the second respondent had agreed to seek advice to respond to public concern. She accepted that there was an increased public interest in transparency in such a case, but submitted that that must be balanced against the potential chilling effect in other cases where a public authority might agree to seek legal advice.

She submitted that the appellant had not disputed that 12(4)(e) was engaged. Even now the statement of the FTT at paragraph 11 of its decision was not disputed by the appellant. She generally submitted that regulation 12 of the EIR made no specific provision for legally privileged material. However, she submitted that any or all of regulations 12(5)(d), 12(5)(f) and 12(4)(e) could have been engaged. She relied on OFCOM v. Information Commissioner [2011] EUECJ C-71/10 to submit that it was necessary to consider the cumulative grounds for refusal in addressing the public interest test where more than one ground applies.

Mr Shields further emphasised the context in which the advice in question was sought. He submitted that context affects the public interest test. Even if the FTT was required to consider obvious points which were not articulated in the grounds of appeal, he submitted that no obviousness was to be found in the present case. He submitted that striking out required a balancing exercise to be carried out and the tribunal had done this. It was not a case of the FTT striking out on a technical pleading point. He submitted that the FTT approached the appeal in non-technical and non-formalistic way and made a correct and lawful decision.

The appellant, understandably, did not offer a comprehensive response to the points made. He relied on the Aarhus Convention, submitting that the first respondent should have enabled his request for information. He further relied on the background of maladministration.

Assessment

The background to this case reveals maladministration in the planning system. The inability of the public authorities who have investigated the circumstances to rule out corruption is troubling. The issue of maladministration, or possible corruption, in the area of planning is clearly a matter of considerable public interest.

Nevertheless, the subject of the dispute in the present appeal is narrow. Specifically, against the background of maladministration described, the second respondent was lobbied by concerned individuals, including the appellant, to remedy the situation. The second respondent agreed to seek advice from its lawyers. The request for information specifically related to the questions directed to those lawyers in seeking advice as to whether the planning permission granted through maladministration could be discontinued in the particular circumstances of the case. We know that the answer from the lawyers was that it could not be discontinued. In the light of this response, the appellant wants to know exactly what questions were asked.

The first respondent found that an exception to disclosure could be relied upon by the second respondent – namely the protection of internal communications between government Departments under regulation 12(4)(e) of the EIR and alternatively that regulation 12(5)(b) applied. The appellant brought an appeal from that decision.

The appellant could have stated his grounds of appeal from the decision notice of the Information Commissioner simply and concisely and in line with the statutory powers of the FTT, saying that he wanted to appeal on the grounds that:

(a) the notice against which the appeal was brought was not in accordance with the law; and/or

(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised the discretion differently.

However, he did not do that. Conspicuously, he did not even contest the application of the exception at regulation 12(4)(e) to his case. Rather, he stated three specific grounds. These were that:

i) as the general conclusion of the lawyers was released, “the information that allowed them to state it was a soundly based decision” should now be made available;

ii) the second respondent had acted “illegally” in relation to certain statutory functions in Waringstown as compared to a nearby village;

iii) the second respondent had taken particular actions in 2003 (i.e. reiterating the maladministration circumstances).

The first ground mischaracterises the nature of the information sought. The advice requested by the second respondent from its lawyers was to do with the possibility of discontinuance of the planning permission, not whether the decision to grant permission had been “soundly based”. The second and third grounds are addressed to issues over which the tribunal had no jurisdiction at all. On any view therefore, the appellant’s grounds of appeal were somewhat wide of the mark.

Against a background of limited resources to defend appeals, it is easy to understand why the first respondent might apply for the FTT to strike out of the particular appeal under rule 8(3)(c). However, any exercise of the power to strike out is subject to the overriding objective of the FTT to deal with cases fairly and justly, and in particular to avoid unnecessary formality and seek flexibility in the proceedings (regulation 2(2)(b)) and to ensure that parties are able to participate fully in the proceedings (regulation 2(2)(c)).

The Upper Tribunal has previously considered issues arising from decisions of the FTT to strike out appeals – notably in AM v The Information Commissioner [2014] UKUT 239 (AAC) and AW v IC and Blackpool CC [2013] UKUT 30 (AAC). Judge Wright has considered that the FTT errs in law if it strikes out an appeal without an oral hearing in circumstances where an oral hearing is legitimately expected. Judge Wikeley has considered that the FTT errs in law if it strikes out an appeal where the facts are in dispute. I agree with those judges. However, I consider that the facts in the present case must be distinguished from those cases. Unlike AM v Information Commissioner, an oral hearing has not been sought by the appellant at any time. Unlike AW v Information Commissioner and Blackpool CC , there is no dispute about the factual circumstances in the present case.

The question which caused me to grant leave to appeal in this case is whether the exercise of the power to strike out appeals should routinely be exercised by the FTT where the grounds of appeal set out by an unrepresented appellant are inarticulately expressed and fail to challenge the reasons stated in the Information Commissioner’s decision which he seeks to appeal.

I am mindful of the approach of the courts in Northern Ireland to cases involving unrepresented litigants. Gillen LJ in the Court of Appeal recently said in the case of Moffatt v Moffatt [2014] NICA 68:

“[41] This court recognises that litigants who are represented must not be prejudiced because the opposition is unrepresented. Indeed, we take this opportunity to endorse the views expressed by Kay LJ in Tinkler and Another v Elliott [2012] EWCA Civ 1289 where he said at paragraph 32:

“An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. It seems to me that, on any view, the view that the litigant in person “did not really understand” or “did not appreciate” the procedural courses open to him … does not entitle him to extra indulgence … The fact that if, properly advised, he would or might have made a different application then cannot avail him now. That would be to take sensitivity of the difficulties faced by a litigant in person too far.”

[42] Moreover a judge is entitled in many circumstances to invite the parties to stand on their written submissions and the court papers in circumstances where he has accorded a real opportunity to the parties to augment the written material with oral argument.

[43] On the other hand, courts dealing with personal litigants are well advised to identify key issues in the case wherever possible at review stages or the trial itself and thus focus the mind of a personal litigant. The absence of any informed reference to this matter in the appellant’s skeleton argument, the lack of any substantive oral hearing, and the uncertain nature of the court’s determination, all persuade this court that the issue requires further consideration before there is a decision shutting out the appellant from the relief sought.”

The “matter” referred to was the application of the personal litigant for proceedings to be admitted out of time under article 6 of the Inheritance (Provision for Family and Dependants) Order (NI) 1979. I understand the Court of Appeal to be saying that personal litigants are not entitled to advantageous treatment in the face of ignorance of procedures, but that courts can properly make some allowance for personal litigants to help them understand relevant procedural requirements.

The culture of tribunals is different to courts. Generally speaking, employment tribunals aside, tribunals are inquisitorial in their nature as opposed to adversarial. Generally speaking, appellants who appear before tribunals do not have the benefit of representation by lawyers. Whereas courts dealing with personal litigants might be “well advised” to help focus their minds on key issues, I consider that there is a greater onus on tribunals to make allowances which will enable appellants to participate fully in their proceedings.

Furthermore, the specialist nature of some tribunals has led to the development of particular practices in different jurisdictions. For example, in cases before the special adjudicator (the equivalent of what is now the FTT (Immigration and Asylum Chamber) dealing with asylum and human rights appeals), the Court of Appeal in England and Wales accepted in R v Secretary of State for the Home Department, ex parte Robinson [1997] EWCA Civ 3090 that it was the duty of the appellate authorities to apply their knowledge of convention jurisprudence to the facts and that they are not limited in their consideration by the arguments actually advanced by the appellant. Otherwise there would be a danger that the United Kingdom would be in breach of its obligations under the UN Convention on the Status of Refugees.

The Court of Appeal qualified its approach stating at paragraph 39 that:

“… The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the Tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely "arguable" as opposed to "obvious".

The FTT (Social Entitlement Chamber) and, in Northern Ireland, the Appeal Tribunal considers appeals from social security decisions. The rules governing both tribunals require (by regulation 22(3)(f) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 and regulation 33 of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 respectively) the appellant to state the grounds on which he relies (in Northern Ireland “particulars of the grounds”). Nevertheless, it is expressly stated at section 12(8)(a) of the Social Security Act 1998 and at article 13(8)(a) of the Social Security (NI) Order 1998 a tribunal “need not consider any issue that is not raised by the appeal”. A clear implication is that a tribunal is not confined to the issues raised by the formal grounds of appeal. In Mongan v Department for Social Development [2005] NICA 16 Kerr LCJ said:

“[14] The terms of article 13(8)(a) of the 1998 Order make it clear that issues not raised by an appeal need not be considered by an appeal tribunal. The use of the phrase “raised by the appeal” should be noted. The use of these words would tend to suggest that the tribunal would not be absolved of the duty to consider relevant issues simply because they have been neglected by the appellant or her legal representatives and that it has a role to identify what issues are at stake on the appeal even if they have not been clearly or expressly articulated by the appellant. Such an approach would chime well with the inquisitorial nature of the proceedings before the tribunal”.

The Court of Appeal qualified its decision by accepting that there must be limits to the tribunal’s responsibility to identify and examine issues that have not been expressly raised, saying that issues clearly apparent from the evidence must be considered. This approach was approved in the Court of Appeal in England and Wales in the case of Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495. At paragraph 28, Dyson LJ said:

“I would endorse the valuable guidance given in Mongan. The essential question is whether an issue is “clearly apparent from the evidence” (para 15 in Mongan). Whether an issue is sufficiently apparent will depend on the particular circumstances of the case. This means that the tribunal must apply its knowledge of the law to the facts established by them, and they are not limited in their consideration of the facts by the arguments advanced by the appellant. I adopt the observations of this court in R v Secretary of State for the Home Department ex p Robinson [1998] 1 QB 929 at p 945 E-F in the context of appeals in asylum cases. But the tribunal is not required to investigate an issue that has not been the subject of argument by the appellant if, regardless of what facts are found, the issue would have no prospects of success.”

The framework of rights governing access to environmental information arises from Directive 2003/4/EC, which was required to be transposed into United Kingdom law by 14 February 2005. The EIR came into force from 1 January 2005. Appeals under the EIR to the FTT concerning environmental information must effectively transpose the rights afforded by the Directive. Article 6, as outlined above, requires Member States to provide a reconsideration or administrative review by an independent and impartial body established by law, and to ensure that applicants have access to a review procedure before a court of law or another independent and impartial body established by law. Specifically Article 6 provides:

Article 6

Access to justice

1) Member States shall ensure that any applicant who considers that his request for information has been ignored, wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with in accordance with the provisions of Articles 3, 4 or 5, has access to a procedure in which the acts or omissions of the public authority concerned can be reconsidered by that or another public authority or reviewed administratively by an independent and impartial body established by law. Any such procedure shall be expeditious and either free of charge or inexpensive.

2) In addition to the review procedure referred to in paragraph 1, Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. Member States may furthermore provide that third parties incriminated by the disclosure of information may also have access to legal recourse.

3) Final decisions under paragraph 2 shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where access to information is refused under this Article.

Ms John accepted that the inquisitorial nature of tribunals meant that respondents would not seek to take technical pleading points against unrepresented appellants. However, she submitted that the Directive would not be breached by a procedure for striking out. The Directive is silent on procedure. This is to be expected from a provision which might be implemented in a variety of ways within the domestic law of the various Member States of the European Union. However, procedure should clearly not be such as to deny access to the basic right of a review.

The scope of review within the terms of Article 6 of Directive 2003/4/EC was considered by the Court of Appeal in England and Wales in Birkett v Department for the Environment Food and Rural Affairs [2011] EWCA Civ 1606. Sullivan LJ said at paragraph 23:

“Article 6 recognises the potential importance of these issues by providing for a thorough review process in which the merits, both factual and legal, of a decision to refuse to release environmental information will be reconsidered afresh by independent and impartial bodies, both administrative and legal. The Court or other legal body conducting the review under Article 6(2) is not reviewing the decision made by the administrative reviewer under Article 6(1), it is reviewing “the acts or omissions of the public body concerned.” Thus, the body conducting the review must consider de novo the propriety of releasing the information”.

The Court of Appeal in Birkett considered the position of the permissibility of reliance being placed by a public authority on exceptions which had not been raised in an original refusal to disclose information or in the decision notice of the Information Commissioner. The Court of Appeal held that there was nothing to prevent a tribunal from considering new grounds for refusing disclosure which had not been relied upon in the decision under appeal. It seems to me that the important point is that an appeal to the FTT is not a reviewing process but a full de novo consideration of the issues. Despite the procedural requirements at Part 3 Chapter 1 of the FTT Rules, the FTT is not confined to consideration of the issues raised by the Information Commissioner’s decision, the grounds of appeal, the response to the appeal or the reply.

In the particular case that I am concerned with, the tribunal acceded to an application by the first respondent to strike out the appellant’s appeal. The application was brought by the first respondent on the basis that the first of the appellant’s grounds did not disclose a reasonable argument and that the second and third grounds were addressed to the decision of the public authority which was not within the tribunal’s jurisdiction. Ms John submitted that a technical pleading point would not be taken in inquisitorial proceedings. However, it seems to me that the first respondent’s application to strike out under rule 8(3)(c) was doing precisely that.

Rule 8(3)(c) of the FTT Rules permits striking out where the FTT considers that there is no reasonable prospect of the appellant’s case, or part of it, succeeding. Birkett makes it clear that the FTT’s role is not to review the decision of the Information Commissioner but to consider de novo the propriety of releasing the information. In order to be satisfied that an appeal had no reasonable prospect of success, in such circumstances, the FTT would need to be satisfied that on no legitimate view of the facts or the law could the appeal succeed.

I had asked for submission on the question of whether “the appellant’s case” in rule 8(3)(c) was synonymous with “the grounds on which the appellant relies” in rule 22(2)(g). Ms John submitted that it was. However, in the light of Birkett, I do not accept that her submission can be correct. It seems to me that the scope of the appellant’s case is not necessarily limited to the appellant’s stated grounds.

The right of appeal in this case arises under regulation 18(1) of the EIR and sections 57 and 58 of FOIA. There are two grounds on which an appeal may be brought under section 58 – namely that the notice against which the appeal was brought was not in accordance with the law and, to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently.

The particular case involved potential consideration of the application of regulations 12(4)(e), 12(5)(b), 12(5)(d) and 12(5)(f). The FTT would have to decide whether, despite the presumption in favour of disclosure under regulation 12(2), the information requested fell within an exception set out in regulation 12(4) or 12(5) and in all the circumstances, the public interest in maintaining the exception outweighed the public interest in disclosing the information. There was clear scope for argument as to whether, as a matter of fact and law, the information fell within any or all of the potential exceptions. More fundamentally, there was clear scope for argument about the discretionary judgment relating to the balance of public interest in the case. It could not have been said that on no legitimate view of the facts or law could the appeal succeed.

This does not mean that regulation 8(3)(c) has no applicability. A good recent example of an appropriate use of the power was cited to me by Ms John, namely the case of Chesson v Information Commissioner (EA/2015/011). This had involved a request for information which the public authority said that it did not hold. The prospective appellant made submissions which were irrelevant to the question of fact as to whether the authority held the information and submitted considerable documentary evidence which had no bearing on the issues in the case. The appeal was struck out by the President of the General Regulatory Chamber of the FTT, noting the overriding objective and the need to ensure the proportionate use of tribunal resources.

However, in this case I observe that the appellant had not requested an oral hearing. The case was to be determined on the documentary evidence before the FTT. Furthermore, in the present case, despite all that I have said above, the manner of the FTT’s disposal of the appeal was somewhat ambiguous. The tribunal at paragraphs 14-18 set out the respective parties’ arguments. At paragraphs 19-29 the tribunal has set out a merits-based consideration of the potential exemptions in the case. The tribunal states, at the introduction and conclusion of the decision, that it “allows the Information Commissioner’s application for the appeal to be struck out pursuant to rule 8(3)(c)”. However, the FTT further states “Accordingly, the appeal is dismissed”.

It seems to me that a tribunal can either strike out an appeal or it can dismiss an appeal, but it cannot do both. Despite references to the merits of the case, the FTT at paragraph 29 says “For the above reasons the Tribunal considers that there is no reasonable prospect of the appellant’s case, or part of it, succeeding”. Yet in doing so, it has conducted an exercise which is difficult to distinguish from a full determination of the appeal. It appears to me that this has defeated the purpose of striking out in terms of ensuring the proportionate use of tribunal resources. However, by airing the conflicting arguments – and particularly those on the balance of public interest – it also seems to me that it implicitly contradicts its own determination to the effect that the appeal has no reasonable prospect of succeeding.

For the reasons I have given, I consider that the decision of the FTT striking out the appeal of the appellant under rule 8(3)(c) has involved the making of an error of law. I therefore set aside the decision of the FTT.

Disposal

I asked for submissions on the appropriate way to dispose of the appeal. In the light of the overriding objective, the passage of time, the fact that an oral hearing was not requested and the fact that the arguments on the merits of the case have been aired, I consider that I should re-make the decision of the FTT.

Findings and conclusions

The background to this case involves established maladministration in a planning decision and an unproven suspicion of fraud. However, the evidence suggests that a review of counter-fraud arrangements has occurred in the intervening years. Although I understand that further structural changes may have taken place since then, the Planning Service at the time of the appeal had been absorbed back into the Department of the Environment core. The Office of the Comptroller and Auditor General for Northern Ireland had commenced a review of counter-fraud strategy and policy and internal control mechanisms to prevent and detect fraud. This included a review of the role of the DoE Internal Audit and the Planning Policy Division’s Compliance, Improvement and Review team, and arrangements for instilling a counter-fraud culture, including whistle-blowing. This all suggested that the issue of possible fraud was being taken seriously and addressed.

Whatever steps were being taken to ameliorate these general problems, the matter that most concerned the appellant was the local environmental impact of the particular decision which affected his village. At a meeting on 13 October 2006 between the appellant, a local member of the legislative assembly (MLA) and senior civil servants, the second respondent had accepted that the findings of the PS Audit Team report were a significant embarrassment, that checks would be carried out to assess if established procedures had been followed, and that legal advice would be taken as to whether the planning permission could be discontinued. The permanent secretary of the second respondent confirmed in writing on 27 October 2006 the undertaking that advice would be sought as to whether it would be possible to discontinue the particular grant of planning permission.

Having in February 2007 received the gist of the advice that planning permission could not be discontinued, the appellant requested “a copy of the recorded questions put to the lawyers” in March 2010.

The primary exemption claimed by the second respondent arises under regulation 12(4)(e) – namely that the request involves the disclosure of internal communications. The first and second respondents submit that this exemption can encompass legal advice from in-house lawyers. In that context, it is submitted that public interest arguments may be directed to the potential for harm to internal deliberation and decision-making processes, to providing a safe space to seek and consider legal advice and to avoiding any chilling effect which might deter the public authority from obtaining proper legal advice in appropriate cases.

The second respondent submits that regulation 12(5)(b) – that disclosure would affect the course of justice - would have applied in any event, relying on Department for Communities and Local Government v Information Commissioner & WR [2012] UKUT 103 and on BBGP Managing General Partner Ltd & others v Babcock & Brown Global Partners [2010] EWHC 2176 at paragraph 48.

I accept the submission that the circumstances of the case engage regulation 12(4)(e) of the EIR. This has to be read in the light of regulation 12(8) which provides that internal communications includes communications between government departments. I am satisfied that internal communications include communications between the second respondent and its legal advisers in the Departmental Solicitor’s Office of the Department of Finance and Personnel.

Having found that the exception under regulation 12(4)(e) potentially applies, the next question is whether, despite the presumption in favour of disclosure, in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

It seems to me that the public benefit of disclosure of the particular request for advice would be narrow. As submitted by the first respondent, whereas wrongdoing or maladministration would increase the public interest in disclosure, it cannot be accorded significant weight in this instance. Here the maladministration concerned the decision to grant planning permission. However, that was past. The particular request addressed the process which led to advice about discontinuing the permission. There was no evidence of any wrongdoing in connection with those procedures. There is no particular reason for the public in general to doubt that the second respondent would have acted in good faith when making the request for advice.

I can understand that public confidence in the second respondent may be diminished by the circumstances of the grant of the planning permission. In the context of addressing the possibility of discontinuing that planning permission, disclosure might confirm to the public that the “right question” was asked by the second respondent, and that the relevant facts were fully set out for the lawyers, thus increasing public confidence in the second respondent. However, the appellant himself has characterised the request for advice as concerning whether the original decision was “soundly based”. This is a quite different issue to the possible discontinuance of the planning permission. Such potential confusion around the advice requested suggests that the benefit to the public from disclosure of the questions put to the lawyers may be restricted.

Alternatively, disclosure might confirm that the “wrong question” was asked and that the relevant facts were not fully set out. This would further diminish public confidence in the second respondent. It might prove embarrassing to the second respondent and raise questions about the competence of officials. In neither case would disclosure of the questions directed to the lawyers achieve the discontinuance of the planning permission.

I do not accept that there is a particularly strong public benefit from disclosure.

On the other hand, the second respondent submits that there is a strong public interest in protecting the ability of public authorities to consult advisers in confidence, to be able to share information fully and frankly and to seek and obtain advice.

I accept that a consequence of releasing the information requested would be that public authorities might be less ready in future to offer to seek legal advice in cases where maladministration is identified. This is because the questions asked of the lawyers would need to candidly and fully set out all the information the public authority held about the background to the maladministration. I consider that if there was not protection of the confidentiality of the information, the public authority would be inhibited from communicating with its lawyers with absolute candour. I consider there is significant public interest in public authorities being able to seek legal advice with the objective of correcting the consequences of maladministration. It did not have practical benefit in the present case, but could be of practical benefit in future.

On balance, I accept the submission that the public interest in maintaining the exception outweighs the public interest in disclosing the information.

The first and second respondent rely upon the exception in regulation 12(5)(b). I have reservations about the potential application of regulation 12(5)(b) to this case, but I do not state a concluded view on whether that exception applies. It is sufficient for me to consider the exception at regulation 12(4)(e) in order to determine the appeal.

As I have concluded that the public interest in maintaining the exception outweighs the public interest in disclosing the information, it follows that I must disallow the appellant’s appeal from the decision of the first respondent.

(Signed on the original) Odhrán Stockman

Judge of the Upper Tribunal

(Dated) 7^th December 2015

Upper Tribunal (Administrative Appeals Chamber)