What sort of grounds of challenge can be run on an appeal against a monetary penalty notice issued by the Information Commissioner? Where the Tribunal has a full merits jurisdiction, is there scope for grounds of challenge relating to the process by which the MPN was reached?

This issue was considered by Judge McKenna in a recent (hotly) contested preliminary issue hearing in Facebook Ireland Ltd & Facebook Inc v Information Commissioner (EA/2018/0256) (decision 033 270619 Preliminary Issue Ruling Facebook Ireland and Inc EA20180256), in which the Commissioner sought to strike out the procedural grounds of challenge advanced by Facebook. Those complaints include allegations of bias, pre-determination and procedural irregularity, relying upon public statements of the Commissioner, a change in the basis of the MPN from the Notice of Intent and assertions of non-disclosure.

Although there is plenty of authority in both FOIA/EIR and DPA appeals for the Tribunal having a full merits review jurisdiction, cases have not generally had squarely to address whether the Tribunal can or should properly allow such procedural grounds to be advanced and take up time and resources in the appeal. Often, practical experience tells us, they may be advanced and then fall away as the focus turns to whether, in substance, the Commissioner’s decision was in accordance with law and involved an exercise of discretion with which the Tribunal agrees. Not so in the Facebook case.

Judge McKenna refused the Commissioner’s application. She held that “in the particular circumstances of this case it would be fair and just for the Appellants’ Grounds of Appeal relating to procedural unfairness to be considered by the Tribunal.” Importantly, for other cases, she immediately added:

“That is not to say that every information rights case before this Tribunal in which procedural impropriety is alleged should be permitted to take up the Tribunal’s time and increase the Information Commissioner’s costs in undertaking a procedural review. In the majority of cases the Tribunal may well take the view that its discretion should be exercised to exclude evidence and argument related to alleged procedural failings which can adequately be cured by the Tribunal in undertaking a “full merits review”.

Why a different answer for Facebook? Judge McKenna referred to the penal sanction of an MPN and the very substantial penalty imposed (notoriously, £500,000) as a differentiation from the FOIA context. She also accepted that the allegations were of the “most serious” kind of procedural irregularity, although there is no discussion in the reasoning as to whether any view of the potential merits of the grounds is relevant. Allegations of conspiracy and bias against the Commissioner are not, after all, unknown in FOIA cases. But in the Facebook appeal, the “most serious” kind of grounds run have been at least permitted to be advanced before the Tribunal. Judge McKenna very wisely made no suggestion that this would not preclude the Tribunal on appeal dispensing with the grounds: the only issue was whether the arguments could be made at all.

Anya Proops QC, Robin Hopkins and Zac Sammour act for the Facebook Appellants.

Timothy Pitt-Payne QC, Rupert Paines and Ben Mitchell act for the Information Commissioner.

 Christopher Knight