[2023] UKUT 245 (AAC)

While the Information Commissioner did not take an active role in the appeal before the Upper Tribunal, Mr Peter Lockley of counsel served a skeleton argument on his behalf to assist the Upper Tribunal.

Mr Lockley explained that the Information Commissioner continued to maintain the position he took before the First-tier Tribunal on the issues raised by Grounds 2(i) and 3, arguing that the First-tier Tribunal did not err in law in the ways argued by the Appellant.

In summary, he argued that the interviews were conducted under condition of confidentiality. He submitted that not only the record of the interviews themselves, but also all the information contained in the Report that represents or records the process of conducting interviews, recording interviews, summarising the evidence gathered and analysing that evidence, is subject to the same obligation of confidentiality as the “raw” interview information. This is because it is both derived from, and reveals the substance of, the raw information. Mr Lockley argued that the approach to section 41 FOIA suggested by the Appellant would deprive the doctrine of confidentiality of much of its utility in practice, as the confidentiality of information could be side-stepped by requesting “derived” information that conveyed the same or similar substance.

Mr Lockley said that the Information Commissioner accepted that some of the information contained in the Report (such as Appendices 12 to 14) was in the public domain or was otherwise not confidential (such as information about the circumstances in which the report was commissioned). However, he maintained that the First-tier Tribunal was not in error of law when it found that the Report as a whole was exempt under section 41 FOIA because the non-confidential elements of the Report were peripheral or trivial, and a line-by-line exercise of filleting the Report of all its confidential content was not justified or proportionate.

No submissions were made on behalf of the Information Commissioner in relation to the other grounds of appeal on the basis that those other grounds concerned either:

Mr Lockley argued that if the Upper Tribunal were to allow the appeal, the appropriate disposal would be remittal to the First-tier Tribunal for redetermination.