In Ofcom v Information Commissioner [2010] UKSC 3 the Supreme Court was asked to consider how public authorities should approach the exceptions to disclosure set out in the Environmental Information Regulations 2004 (EIR).  Most of these exceptions are subject to a public interest test.  The public interest in maintaining an exception has to be measured against the public interest in disclosure.  Unless the public interest in maintaining the exception outweighs the public interest in disclosure, the information must be disclosed.

But what happens if there are a number of exceptions in play?  Do you look at each exception in turn, assessing the public interest in maintaining that exception as against the public interest in disclosure?  Or do you aggregate all of the exceptions, assess the combined public interest in maintaining them, and measure that combined interest against the public interest in disclosure?

In the Ofcom litigation, the Court of Appeal had decided in favour of aggregation.  The Supreme Court was inclined (by a 3-2 majority) to uphold that decision.  But the Supreme Court also recognised that the answer was unclear, and depended on the construction of Directive 2003/4/EC.  So the Court has referred the issue to the European Court of Justice.

There is now a practical difficulty:  in cases where the aggregation point might make a difference to the outcome, what should the Tribunal do? Should it follow the Court of Appeal?  Should it wait for the ECJ?  Or should it reach its own view on how the legislation should be interpreted?  And Ofcom is an EIR case: what about aggregation under FOIA?

In practice nobody will want the outcome of their case to turn on a point that may not be resolved for some years.  It will be much more attractive for parties to argue that aggregation makes no difference to the outcome of their case.



The Tribunal has issued a Practice Note dated 18th January 2010, dealing with the protection of confidential information under the new rules of procedure.

The Note needs to be read in conjunction with the new rules of procedure (discussed in our earlier post here).  The relevant rules are set out in the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009 (SI 2009/1976) as modified by the Tribunal Procedure (Amendment) Rules 2010 (SI 2010/43)

The Practice Note indicates that the Tribunal will maintain its previous practice, that disputed information (i.e. the information sought by a requester but withheld by a public authority) will not usually be disclosed to the requester in the course of appeal proceedings before the Tribunal. This may mean that a party is excluded from part of the Tribunal hearing.  The Practice Note refers to rule 35 of the new Rules as providing a basis for exclusion.

The Practice Note also includes guidance about the format of witness statements (see paragraph 22) and the contents of bundles (see paragraph 25).



The First-tier Tribunal (Information Rights) – as we must now learn to call it – has recently published on its website a list of its current cases (updated to 20th January 2010).  This gives an interesting insight into the volume and type of work reaching the Tribunal.

Cases are numbered by year of receipt, and in the order that they are received: for instance,  EA/2009/100 is the 100th case received in 2009.  This means that the case numbering system indicates how many appeals were received in a particular calendar year.  On this basis, the Tribunal seems to have received 123 cases in 2009, and 30 (so far) in 2010;  which suggests a sudden sharp increase in its workload.

The list shows 102 live cases.  Of these, only one is identified as a Data Protection Act case.  11 cases are identified as involving the Environmental Information Regulations.  All of the other appeals (90 cases) are brought solely under the Freedom of Information Act.

As the figures suggest, free-standing DPA cases before the Tribunal are rare.  There are also few DPA cases that reach the ordinary courts.  But many FOIA cases involve DPA issues.  So a significant volume of DPA case-law is being generated by the Tribunal; but most of this is in the context of FOIA, and in particular the data protection exemption in FOIA section 40. 



The website for the new First-tier Tribunal (Information Rights) is at the address formerly used by the Information Tribunal:  see here.

The website includes the Practice Statements that were issued under the old rules (i.e. the Information Tribunal (Enforcement Appeals) 2005), but as yet it does not include any practice directions made under the new rules.  We are however aware of a practice direction dated 18th January 2010 on confidentiality and redaction of documents (referred to in Anya’s post of 15th January).

The website also includes a redrafted version of the appeal form.


Today, we should all pause and reflect on the passing of the much loved Information Tribunal. With effect from this coming Monday (18 January 2010), the Information Tribunal in its existing incarnation will cease to exist and all work which has hitherto been done by the Tribunal will be transferred to the new General Regulatory Chamber. The transfer is to be effected in accordance with the Transfer of Functions Order 2010 (SI 2010/22) (“the Transfer Order”). It is important to be aware of the following systemic changes which will result from the transfer:


1.                   from 18 January 2010, all appeals under FOIA will be heard either in the First-tier Tribunal (Information Rights) (“the FTT”) or in the Upper Tribunal (“UT”);

2.                   the question whether particular appeals are to be heard in the FTT or the UT is, in principle, to be determined by the new tribunal rules governing the operation of the FTT and the UT (see paragraph 2(3) of the Transfer Order);

3.                   there are in fact two sets of rules which are relevant in this context:

 (a) the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009, SI 2009/1976 (“the FTT Rules”) (as amended very recently by the Tribunal Procedure (Amendment) Rules 2010, SI 2010/43); and

(b) the Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2968/2008 (“the UT Rules”) (as amended by SI 2009/274, SI 2009/1975 and SI 2010/43);

4.                   as matters currently stand, these Rules say very little as to how FOIA appeals are to be allocated as between the two different tribunals, save that all appeals under s. 60 FOIA (appeals against national security certificate) must be heard in the UT (see paragraph 24 of the Tribunal Procedure (Amendment) Rules 2010, SI 2010/43). It is understood that, apart from appeals brought under s. 60 FOIA, the issue of allocation of appeals as between the two tribunals is likely to be determined on the basis of (forthcoming) practice directions rather than by reference to the Rules per se;

5.                   the FTT Rules and the UT Rules will apply in respect of all new appeals brought under FOIA (i.e. appeals which are commenced on or after 18 Janaury 2010);

6.                   in respect of appeals commenced prior to 18 January 2010, the tribunal will have a discretion as to whether to apply: (a) the old rules (i.e. the Information Tribunal (Enforcement Appeals) Rules 2005); (b) the new rules; or (c) a combination of the two sets of rules (see further paragraph 3 of schedule 5 to the Transfer Order which contains the relevant transitional provisions);

7.                   the FTT Rules and UT Rules will in due course be supplemented by practice directions – see further the new practice direction on confidentiality and redaction of documents (dated 18 January 2010).