[2024] UKUT 245 (AAC)

On 22 April 2024, I granted permission to appeal, making the following observations:

10.

It is difficult to tell from the decision which elements of the requested information the school, the Commissioner or the Tribunal were dealing with, but it appears that the appellant’s request was dealt with as a request for specific exam results for individual students identified by ethnicity. In other words, Requests 1-3 above. The decision does not deal with Request 4, which requested information based on percentages of students achieving certain grades broken down on a non-Caucasian/BAME vs others basis.

11.

The appellant when applying for permission to appeal to the First-tier Tribunal raised what appears to be broadly this point in his paragraph 2f, suggesting that “rather than giving actual numerical exam marks these could be given as percentages and ethnicities could be broken down into two broad groups white and non-white”. In refusing permission to appeal, Judge Findlay appears to have considered this was a proposal by the appellant to amend his request. However, it seems to me that it arguably was, or should have been treated by the First-tier Tribunal as being, a reference to the terms of the appellant’s original request, i.e. Request 4 which has not been dealt with by the Tribunal.

12.

This is a point that the appellant has raised again in his renewed application for permission to appeal where he states: “In relation to my specific statistics requests, no reason was given from the ICO or tribunal as to why this could not be disclosed. This is an obvious omission by the ICO and the tribunal under the FOI law”.

13.

In the circumstances, I grant permission on what I will label Ground 1, being that the First-tier Tribunal arguably erred in law by failing to deal in its decision with the whole of the appellant’s request for information and specifically by omitting to deal with Request 4.

14.

The appellant has made a number of other points in seeking leave to appeal. For the most part, I agree with Judge Jacobs that he has not identified anything that arguably amounts to an error of law rather than a disagreement with the Tribunal’s application of the law to the facts of his case.

15.

The broad thrust of his complaints are that either the Tribunal should not have concluded that the requested information constituted personal data or that it should have concluded that disclosure of the information requested was necessary for the purposes of the appellant’s legitimate interest in transparency as to whether ethnicity may have affected grading.

16.

Having reviewed the Tribunal’s decision carefully, I am not satisfied that it is arguable that the Tribunal has erred in concluding that the data requested as Requests 1-3 above constitutes personal data, given that it is a request for individual exam results by reference to specific ethnicity in respect of a relatively small cohort of students from an individual school.

17.

However, I am satisfied that the Tribunal has arguably erred in law in its approach to Article 6(1)(f) and legitimate interest. This is because the Tribunal has arguably regarded it as conclusive of the question of whether it is necessary to disclose the information to serve the appellant’s legitimate interest that the school has carried out a statistical analysis and determined that ethnicity groups are too small to establish statistical significance. However, statistical significance is not an absolute, and statisticians will argue as to what level of statistical significance should be applied in any particular case. In the context of an indirect discrimination claim, it is for the Tribunal or court to decide what is statistically significant and data may be significant even where the group is small (see eg Cheshire and Wirral Partnership NHS Trust v Abbott and ors at [17]-[22]). Further, even if the data set is too small to establish a case of indirect discrimination on the basis of statistics, it may still provide evidence from which it may be inferred that ethnicity has influenced the decision-making process on a directly discriminatory basis: see West Midlands Passenger Transport Executive v Singh [1988] 1 WLR 730.

18.

In the circumstances, I am satisfied that the Tribunal has arguably erred in law in its conclusion on legitimate interest by failing to apply its own mind to the question of whether the information requested was capable of serving the legitimate interest of the appellant and/or by failing to take account of relevant factors as to how the data requested might serve the appellant’s legitimate interest and/or in providing inadequate reasons for its decision. I label this Ground 2.

19.

I appreciate that the foregoing paragraphs identifying what I have labelled as Ground 2 restate the appellant’s case in lawyer’s terms. However, I consider that in substance they properly reflect the arguments that he as a litigant in person has sought to make and that it is appropriate, and in accordance with the over-riding objective, for me to set out the argument as I have done in order to explain why I grant permission on that Ground. I emphasise that my decision is only that Ground 2 as I have identified it is arguable.

20.

This grant of permission does not mean that either ground of appeal will succeed.

21.

I add that I note that the First-tier Tribunal went on in [64] to consider the overall balancing exercise and that in principle its decision that that weighed in favour of refusing the request may in any event mean that its decision should be upheld. However, I am satisfied that if the final outcome of this appeal is that Ground 2 succeeds, it is arguable that that will undermine the First-tier Tribunal’s conclusion on the balancing exercise. Again, both parties will need at the final hearing of this appeal to make submissions on the question of the effect of the appeal (if it is successful), given the First-tier Tribunal’s conclusion at [64].