Unfit to remit: First-Tier Tribunal must make its own decision on whether information relating to Blair’s post-office appointments must be disclosed

In relation to a Freedom of Information Act 2000 (FOIA) request for details of Tony Blair’s private appointments after his tenure as Prime Minister, the Upper Tribunal (“UT”) has confirmed that the First-Tier Tribunal (“FTT”) cannot remit a decision to the Information Commissioner for fresh consideration. The UT was also critical of the FTT’s approach to assessing the application of the exemption in s. 36 FOIA (prejudice to the effective conduct of public affairs).

Background

Edward Malnick, a journalist for the Telegraph, made a request under FOIA from the Advisory Committee on Business Appointments (“ACOBA”) for copies of all correspondence, and records of all conversations, between ACOBA and Tony Blair (or his representatives) two years either side of Mr Blair leaving office as Prime Minister in June 2007.

The ACOBA must be consulted by ministers about any appointments or employment they wish to take up within two years of leaving office, and ministers are under a “code of honour” to abide by its advice. Mr Malnick said he sought the requested information as Mr Blair’s case “has come to exemplify public concern at former Ministers obtaining lucrative post-office appointments. If ever there was a case for transparency, it is this one.”

ACOBA refused Mr Malnick’s request on two grounds. Firstly, ACOBA argued that disclosure would prejudice effective conduct of public affairs (s.36(2)(b) and (c) FOIA) on the basis that former Ministers needed a “safe space” to raise their concerns, and that public disclosure of conversations would create a “chilling effect”, making it less likely for applicants to cooperate with ACOBA in the future. Secondly, ACOBA argued that the correspondence and conversations constituted personal information (s.40(2)). On appeal by Mr Malnick, the Information Commissioner agreed that disclosure could be refused on s.36 grounds, and so did not consider whether the s.40 exemption was engaged.

The FTT upheld Mr Malnick’s subsequent appeal on the basis that s.36 FOIA was not engaged but that, even if it was, the public interest favoured disclosure. The s.36 exemption is engaged if, in the reasonable opinion of the authority’s designated “qualified person”, disclosure of the requested information would be prejudicial to the effective conduct of public affairs. The FTT held that the opinion of ACOBA’s Qualified Person (“QP”) was not “reasonable” because it failed to take into consideration the fact that the “court of public opinion” is a crucial factor in encouraging Ministers to abide by ACOBA’s recommendations. The FTT held that the Commissioner would “therefore need to issue a new decision notice, which does not rely on [s.36].”

The appeal to the Upper Tribunal

The Commissioner then appealed the FTT’s decision on three grounds:

  1. The FTT was wrong to decide s.36 was not engaged on the basis that the opinion of ACOBA’s QP was not “reasonable”;
  2. The FTT incorrectly assessed the balance of public interest under s.36; and
  3. The FTT had no power to order the Commissioner to issue a new decision notice.

In its decision earlier this month, the Upper Tribunal (UT) upheld the appeal on all three grounds.

The reasonableness of the QP’s decision and the public interest test

The FTT had wrongly applied the s.36 test by failing to undertake a two-step process. It was required to first decide the threshold question of whether the QP’s opinion was reasonable. Only on deciding that the opinion was reasonable, should the FTT have weighed the public interest in favour and against disclosure. Instead the FTT conflated the two steps, by considering the public interest in its assessment of whether the QP’s opinion was reasonable. In doing so, the FTT had erred in law in deciding that the QP’s opinion was unreasonable.

The UT also held that the effect of public opinion and investigative journalism on ministers’ compliance with ACOBA’s recommendations related to events after ACOBA made its recommendations, and not before. This consideration was therefore not relevant to the QP’s reasons for determining prejudice, namely threat to the safe space and the chilling effect.

In erroneously dismissing the QP’s Opinion as unreasonable, the FTT also failed to give that decision appropriate weight in its determination of the public interest test under s.36. The UT therefore also upheld the Commissioner’s second ground of appeal.

Remitting to the Information Commissioner

In relation to the third ground, the UT noted, in the first instance, the absence of any statutory power to remit a case back to the Commissioner. The UT then rejected the suggestion that an ICO decision notice that erred in law was always a “nullity” so as to automatically revive the Information Commissioner’s duty under s.50 FOIA to make a decision upon an application to do so. Instead, the FTT must make its own determination as to whether s.36 is engaged and, if so, whether the public interest favours disclosure.

Implications

The case affirms important points regarding the role of the Information Commissioner and its relationship with the tribunal appeal procedure. The Commissioner cannot make two notices regarding the same complaint, especially where there is no legislative framework for her to reconsider a notice. By contrast, it is the nature of the appeals process that it is for the FTT to determine the issues before it: it cannot abdicate or share that duty. This is in notable contrast to procedure under judicial review, where a court can remit a decision back to the original decision-maker.

The case also offers helpful guidance on the exercise to be undertaken when considering the application of the exemption under s. 36 FOIA, i.e. the separate questions of whether a QP’s opinion is reasonable and whether the public interest favours disclosure should not be conflated.

Whether we will see the correspondence and conversations relating to Tony Blair’s private engagements remains to be seen: this will be for a newly-constituted FTT to decide in due course.