Personal Data in the Upper Tribunal

We all love nuggets, be they of gold or chicken. A couple of short recent Upper Tribunal judgments reached under FOIA may not be finger-lickin’ good, but are nonetheless worthy noting as a tasty morsel or two.In Information Commissioner v Halpin [2019] UKUT 29 (AAC) Judge Markus QC overturned an FTT decision which had held that personal data was not exempt under section 40(2) FOIA. She explained that the FTT had erred in declining to have regard to the possibility of wider disclosure to the world beyond the requestor – because the public authority would no longer have any control over the information once released – such that it had failed properly to balance the competing interests and effects of disclosure. This was a point made in GR-N v Information Commissioner & NMC [2015] UKUT 449 (AAC) and applied since. The requestor’s private motives were sufficient to form a legitimate interest, but did not form a justification for disclosure to the world at large. The FTT had also erred in failing to address the core concern of the public authority, that disclosure would lead to inappropriate complaints against or other targeting of the particular data subjects causing them stress. It was no answer to that to say that the authority had procedures to address complaints: the point was not that the complaints would be upheld but that they would have to be dealt with when they would not have been without disclosure.

Judge Markus QC also noted, expressly obiter, that the FTT had erred in failing to apply established appellate authority that disclosure of personal data is not the same as disclosure of other information under FOIA, and a higher threshold is required. Equally, she emphasised the desirability of FTTs having regard to the Goldsmith principles to avoid falling into an inappropriately narrow approach to necessity.

Worth noting in passing is D v Information Commissioner [2018] UKUT 441 (AAC), which is now the relevant authority on whether a party to an information rights appeal can or should be anonymised. Judge Wikeley’s judgment traverses the case law derived from various courts and endorsed the general principle that open justice is always the starting point; that derogations can only be justified to the extent that they are necessary; and that the burden of adducing evidence and/or reasons to justify a derogation from open justice always falls on the applicant for such an order. On the facts, such a derogation was not justified in D’s case and the appeal was dismissed. The issue does not arise all that frequently, but it is useful to have all the latest judicial thinking collected in one place when it does.

Lastly, it is ironic to follow a case involving a ringing endorsement of the importance of open justice and the derogation from that where parties are not named, with a brief mention of an appeal which resorted to the standard Upper Tribunal practice of reducing any individual appellant to their initials only: LO v Information Commissioner [2019] UKUT 34 (AAC). While it is understandable that the judgment templates adopt that course where so much of the AAC’s caseload is in the social security sphere, where anonymity can be justified, it remains a confusing and unhelpful oddity that it is adopted in information rights appeals and it makes citation and legal research that much more painful. It clearly cannot be intentional on the part of the UT judges, as the individual is invariably referred to by their full name in the judgment itself (as was the case in LO). Hopefully it will die out.

That was not, however, the point of referring to LO, which is mentioned here only because of the considerable dismissal on the part of Judge Jacobs to placing reliance on FTT decisions. It has been clear for a long time – not least since Judge Jacobs delivered the Voyias decision in 2012 – that FTT decisions have no precedent value. But in LO he goes further to decry the ICO placing any reliance on them at all as guidance on the law outside of the particular case decided. Reliance should be placed on the law, and if the FTT happens to get the law right “all to the good”, but it does not acquire value simply because the FTT said it. This is hardly a ringing endorsement of the FTT, and nor is it especially helpful to public authorities and requestors who are looking for any guidance they can get on how a tribunal might approach a particular factual context, given the relative lack of UT jurisprudence. Each case must turn on its own facts, but if the FTT is not to descend into a wilderness of single instances the value of consistent decision-making and legal certainty must have some role to play. Judge Jacobs was prepared to ‘mark the FTT’s homework’ at the ICO’s behest on this occasion, but warned that he may not do so in future. Parties will be left to argue about immaterial errors of law in the FTT’s reasoning in other cases. So be it.

Jen Coyne appeared for the Information Commissioner in D and Zoe Gannon was similarly instructed in LO.

Christopher Knight