First-tier Tribunal (General Regulatory Chamber)

Neutral Citation Number: [2023] UKFTT 257 (GRC)

 

Appeal Reference: EA.2022.0364

 

First-tier Tribunal

(General Regulatory Chamber)

 

Information Rights

 

Before

 

JUDGE rebecca worth

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Between

 

 

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Decision and Reasons

 

 

Background

1.             On 19 October 2022, the Information Commissioner’s Office (“ICO”) issued a Decision Notice, reference IC-139592-P9T5, under Section 50 of the Freedom of Information Act 2000 (“FOIA”). The Decision was:

1.1         Rotherham Metropolitan Borough Council (“the Council”) had, during the ICO investigation, provided Mr Harron with the information he sought, withholding only some personal data.

1.2         The Council, on the balance of probabilities, did not at the date of request (20 July 2021) hold more information in connection with the request.

2.             By Notice of Appeal dated 15 November 2022 Mr Harron (who had made the FOIA request to Rotherham Metropolitan Borough Council) lodged with this Tribunal proceedings in respect of that Decision Notice.  The Grounds of Appeal question whether the Council has properly addressed concerns mentioned in an Upper Tribunal appeal (which involved a different request by Mr Harron to the Council) and comments made by the GRC’s Chamber President Mark O’Connor in other cases. The outcome he seeks is pasted below, to keep the same formatting and wording:

3.             In their response dated 11 January 2023 the ICO applied for a strike out under rule 8(3)(c) of the GRC Rules [1], arguing:

… the Appellant has failed to advance any argument as to why the Commissioner’s Decision Notice is not in accordance with the law or the Commissioner ought to have exercised his discretion differently,….

4.             The Council also applied for strike out of this appeal.

5.             Mr Harron has made representations about the strike out applications, submitting as follows (again, pasted to preserve formatting and precise wording:

The law

6.             So far as it is relevant, the GRC Rules provide the following about striking out an appeal:

Striking out a party’s case

8.          (1) …

             (2) …

             (3) The Tribunal may strike out the whole or part of the proceedings if—

(a) …

(b) …

(c) the Tribunal considers there is no reasonable prospect of the appellant’s case, or part of it, succeeding.

Consideration

7.             As he is the appellant, and the person who says that the Decision Notice was wrong, it is for Mr Harron to persuade the Tribunal that, on the balance of probabilities, more information was, at the date of his request, held by the Council. It seems that the Grounds of Appeal could be summarised as: “In the past it has been proven that Rotherham Metropolitan Borough Council have not provided me with information when I asked for it, therefore they have done the same again now”.

8.             What Mr Harron has not done is to assert why he says that on this occasion the same has happened and that there is further information held. He refers to a text but seems, from his wording, to accept that it “was deleted” therefore, it is not held and not capable of disclosure. It is not in dispute that he was sent some information; he does not challenge the application of Section 40 (personal data) to the information withheld from him. He seeks to assert that, due to past findings, on this occasion there must be more held. Without some evidential basis for that assertion, it is difficult to see how Mr Harron could persuade a Tribunal that the Tribunal should allow his appeal and issue a Substituted Decision Notice.

9.             I acknowledge that the Tribunal does have an “investigative” role within proceedings brought before it. However, it is not such a wide role as to usurp those of a regulator or to do what an appellant should do, which is to bring some doubt on the veracity of conclusions made by a regulator.

10.         On balance, I do not consider that the Grounds of Appeal set out a proper challenge to why for this request, Mr Harron says that more information is held. So far as his grounds seem to seek some sort of general review into information rights practices, that is outside the scope of this Tribunal’s remit - Parliament only gave powers to this Tribunal to consider appeals against Decision Notices issued by the ICO.

Decision

11.         For the reasons set out above, and pursuant to rule 8(3)(c) of the GRC Rules, I strike out the appeal as having no reasonable prospect of succeeding.

 

Signed District Judge Worth

District Judge Worth, authorised to sit as a Tribunal Judge in the GRC, dated 06 March 2023