[2024] UKUT 245 (AAC)

The Information Commissioner resists the appeal on this ground. The Commissioner submits that the Tribunal was clear in its decision that its findings, including its finding of fact that “an individual is reasonably likely to be identifiable” applied to the whole of “the requested information” ([59], [61], [62]), without limitation. The Commissioner submits that the Tribunal’s reasons at [61]-[62] apply to Request 4 as well as Requests 1-3. The Commissioner submits that, given the small cohorts of students involved, even providing the statistics as requested by the appellant in Request 4 would give rise to the risk of jigsaw identification identified by the Tribunal.

The Information Commissioner reminds me of the well-established principles to be applied when the Upper Tribunal scrutinises the decision of a First-tier Tribunal. The Upper Tribunal should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out: R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48, at [25]. The reasons of the tribunal must be considered as a whole, and the Upper Tribunal should not limit itself to what is explicitly shown on the face of the decision. It should also have regard to that which is implicit in the decision, so that absence of express reference is not determinative: Information Commissioner v Experian Limited [2024] UKUT 105 (AAC) at [65] and [118].

The appellant for his part urges me to uphold the appeal on this ground.

I have re-read the Tribunal’s decision, consciously directing myself to the generous approach that the authorities require me to take to the reasons of the First-tier Tribunal. I am afraid, however, that I have reached the firm conclusion that the Tribunal’s decision has not dealt with Request 4. This is because Request 4 is different to Requests 1 to 3 in that it is a request for information based on percentages of Caucasian and non-Caucasian/BAME students achieving particular grades in particular subjects. Unlike requests 1 to 3, it is not a request for information about individual student’s results.

It is clear to me that the Tribunal did not have Request 4 in mind when making its decision in this case. The Tribunal’s record of the Information Commissioner’s response and submissions at [43]-[56] contains no reference to any submissions that could be construed as submissions about a request for percentage figures such as those requested in Request 4. The Tribunal’s conclusions at [57]-[66] likewise contain no such reference. The Tribunal’s description of the requested information at [61] is not in my judgment capable of being construed as covering the percentage information requested under Request 4. What the Tribunal describes in that paragraph corresponds to the information requested in Requests 1 to 3 and not 4. Likewise, what the Tribunal says at [62] about the way in which an individual student could be identified by cross-referencing the requested information about individual students and their grades against known information about individual students’ strengths, weaknesses and their ethnic origin has no relevance to the information requested under Request 4 which did not include a request for any individual student data.

Moreover, the School had itself released some statistical analysis indicating that in principle the School considered that the release of statistical data (and percentages are statistical data) could be done without risking revelation of individual student’s personal data. Consideration of Request (4) would need to have engaged with that, but there is nothing to indicate that the Tribunal had understood the appellant had made a request for statistical data/percentages as he did in Request (4).

That Request (4) had been overlooked is also clear from what the judge said about the appellant’s grounds of appeal when refusing permission to appeal. At [2f] of the decision refusing permission, the judge recorded the appellant’s contention that the possibility of identification of individuals could be eliminated by the data being released as percentages of exam marks for “two broad groups white and non-white”. The appellant when drafting that ground of appeal had evidently himself forgotten that his Request 4 already made such a request so it is understandable that the Judge when refusing permission to appeal dealt with this point by stating “The Applicant at paragraph 2f suggests amending his request by ‘being less specific’ to eliminate the possibility of a person being identified. This is not a valid ground for permission to appeal.” However, while the judge’s error is understandable given the way in which the appellant presented the point in his grounds of appeal, it is nonetheless clear from the judge’s response that the Tribunal had not understood the appellant’s request that they dealt with in the decision as including Request 4.

In those circumstances, I must conclude that the Tribunal erred in law as (despite purporting to do so) it has not in fact dealt with the whole of the appellant’s request. Further, Request 4 is, as I have observed, different in nature to Requests 1 to 3. It is not possible to read across the Tribunal’s reasons for dismissing the appeal as dealing with Request 4. The reasons are inadequate as they do not explain why the Tribunal concluded that the Information Commissioner was right to find that the School had dealt with Request 4 in accordance with FOIA.

This case will therefore need to be remitted in order for the Tribunal to consider the appellant’s Request 4. I add in that regard that I note that the appellant has in a number of his communications suggested he might further amend his request in various ways. For the avoidance of doubt, any amended request has to be put afresh to the School as public authority. While there is nothing to stop the parties at any point reaching agreement between themselves in relation to an amended request, Tribunal appeal proceedings cannot be used as a forum for exploration of evolving requests or negotiation as to alternative requests that might be accepted. The Tribunal’s jurisdiction (like the Commissioner’s) relates only to the request in the form it was originally made. On remission, therefore, the Tribunal will be dealing with Request 4 solely as originally set out in the appellant’s letter of 14 July 2022 and not any modified version.