[2023] UKUT 130 (AAC)

I agree with the Information Commissioner that the First-tier Tribunal’s approach to the first question distilled from the South Lanarkshire case cannot have led it to have committed any material error of law in the decision to which it came on 22 April 2022. Given the lack of any contested argument on this point, I prefer to answer this on the basis that as far as this appeal by Mr Pereira to the Upper Tribunal is concerned nothing in the First-tier Tribunal’s approach to question (i) under South Lanarkshire disfavoured Mr Pereira in the First-tier Tribunal’s decision.

Mr Pereira’s concern throughout these proceedings has been with whether the First-tier Tribunal wrongly (in error of law terms) approached the balance of the competing interests arising under section 40(2) of FOIA. That balancing of interests point could only have been reached if he satisfied question (i) (and (ii)) under South Lanarkshire, which the First-tier Tribunal found he did. Once that point has been reached, I cannot see how any potential error the First-tier Tribunal may have made in answering South Lanarkshire question (i) affected its approach to the balance of interests under South Lanarkshire question (iii), and no one before me argued that it did. Nor did the grant of permission to appeal proceed on the basis that there was a necessary nexus between questions (i) and (iii) under South Lanarkshire: see paragraph 17 of that grant.

I not able to identify that the correct identification of the nature of the third party’s expectation that his personal information would not be disclosed made any difference to the First-tier Tribunal’s approach to the balance of the competing interests in this case. As for Mr Pereira’s argument that there was no evidential basis for what the First-tier Tribunal said about the third party and expectation in paragraph 43 of its decision, it is important to recognise that the First-tier Tribunal’s finding was about an absence of an expectation that the relevant requested information would disclosed rather than a positive expectation that it would not be disclosed. In that context, the evidence before the First-tier Tribunal, including that found in the withheld information to which this particular request related, in my judgment provided a sufficient basis for the First-tier Tribunal’s conclusion that the third party had no expectation that the details in his DRO application would be disclosed by the Insolvency Service. Mr Pereira was unable to point to any evidence showing that the third party would have had such an expectation.

This then leaves Mr Pereira’s two grounds of appeal. I can deal with these quite shortly because I do not consider there is anything in them in error of law terms.

Mr Pereira’s first ground is that the First-tier Tribunal failed to accord any sufficient weight to the fact that the third party’s application for a DRO had been proven to be fraudulent and/or it should have accorded less weight to the third party’s interests in privacy because of this fraud. There are three main problems with this argument. First, the weight to be accorded to evidence is classically a matter for the specialist fact-finding First-tier Tribunal. Such a finding as to weight will only be disturbed in an error of law jurisdiction if no rational First-tier Tribunal could have arrived at it. That argument has no basis here. Second, the evidence on page A28 of the First-tier Tribunal’s open bundle does not support, as Mr Pereira claims it does, that the third part had acted fraudulently in making the DRO application. Third, the First-tier Tribunal took the allegation of fraud into account and weighed it in its consideration of the competing interests for and against disclosure of the third party information, but it found that the third party’s rights to privacy (given the undisclosed information contained sensitive personal information of the third party) outweighed any competing interests held by Mr Pereira. That was the First-tier Tribunal’s job – to weigh the competing interests and decide where the balance came down in favour of disclosure or not – and in doing so it took account of all relevant matters. Mr Pereira’s argument here is no more than a merits reargument that the First-tier Tribunal ought to have come down in favour of disclosure because Mr Pereira considers that the balance of interests ought to have fallen in his favour. However, it is no part of the Upper Tribunal’s error of law jurisdiction to redecide evidential matters.

The same conclusion holds true of Mr Pereira’s second ground of appeal. This ground of appeal is that there was a strong public interest in publishing the details of the third party’s DRO application because it had been inadequately investigated by the Insolvency Service. Again, however, this is just a rerun of the arguments made by Mr Pereira about the weight the First-tier Tribunal ought to have attached to the competing interests. Having considered myself the withheld information to which this request related, I can state clearly that the First-tier Tribunal was entitled to conclude that disclosure of the information would clearly have interfered with privacy rights of the third party that he would have expected would remain confidential and would be likely to cause him harm and/or distress had that information been made public. It was for the First-tier Tribunal to weigh and consider whether the factors Mr Pereira articulated as providing good reasons for making the information publicly available outweighed the privacy rights of the third party in relation to this requested information. That balancing included, as the Information Commissioner points out, the First-tier Tribunal’s view that the strength of the interest in revealing potential missteps in the Insolvency Service’s investigation was lessened by the existence of other means of obtaining transparency and accountability (particularly through the Ombudsman). Those interests were then weighed against the nature of the private information sought (about the third party) and the weight to be attached to keep that private information private. The First-tier Tribunal carried out this assessment and weighing of the relevant evidence and it did not err in law in balancing the competing interests as it did.

Mr Pereira’s argument here amounted in the end to an argument that he considered greater harm would be caused to others by the Insolvency Service continuing to make DRO’s on an inadequately identified basis than could arise for the third party by his private information being disclosed. Mr Pereira argued in this respect that the third party continuing to buy guitars and other musical instruments showed the third party remained a capable person. These, however, are no more than arguments on the evidential merits of the case which Mr Pereira was able to make to the First-tier Tribunal. They show no error of law in the First-tier Tribunal’s consideration of the privacy rights of the third party that attached to the relevant requested information.

It is for all these reasons that this appeal is dismissed.