My paper from last week’s 11KBW Information Law Seminar contains a number of updates on important developments – both recent and imminent – at Upper and First-Tier Tribunal levels.

One of the most important concerns the contentious question of late reliance: in particular, is a public authority entitled to rely as of right on an exemption it raises for the first time before the Commissioner or even the Tribunal? The Upper Tribunal has recently answered with a firm “yes”: the decision in the joint appeals from the Tribunal decisions in Home Office v IC, and DEFRA v IC and Birkett (GIA/1694/2010 and GIA/2098/2010) can be downloaded here; see also commentary by FOI Man on his blog here. As I mention in my paper, however, the Upper Tribunal may have more to say on this matter very shortly (in an appeal involving the All Parliamentary Group on Extraordinary Rendition) – so watch this space for updates.

Another imminent Upper Tribunal decision to look out for is the case of Gaskell. concerns an appeal against a Decision Notice involving the Valuation Office Agency. In that Decision Notice, the Commissioner found that – notwithstanding the public authority’s unlawful withholding of the requested information – he would not be ordering disclosure because of events (in this case, the coming into force of new legislation) arising after the time at which the request was handled. The appeal invites the Upper Tribunal to find that the Commissioner has no discretion to make such a decision based on events subsequent to the relevant time for his assessment.

The High Court has recently confirmed that the “costs of compliance” for FOIA purposes does not include the costs of redaction: see Chief Constable of South Yorkshire v IC ([2011] EWHC 44 (Admin)).

Two notable EIR decisions are expected shortly, one at first instance in the GM Freeze case (which is expected to provide much-needed guidance on how widely the concept of “emissions” should be construed), the other by the Upper Tribunal in the Kirklees case (which is expected to clarify the question of imposing charges following a request to inspect information).

The latter case also saw this argument raised before the Upper Tribunal: a “purposive request” (i.e. one that takes the form “please provide me with the information I would need to answer the following questions”) is not a valid request for EIR and FOIA purposes.

Finally, the First-Tier Tribunal has recently heard an appeal by Channel 4, in which the appellant argued that contracts should be treated as whole, rather than severable documents, meaning that if part of the contract can be withheld, then the whole contract can also be withheld. The implications of this position would be substantial, so again – watch this space.