[2023] UKUT 130 (AAC)

The Information Commissioner has been content on this appeal to set his arguments out in writing and did not attend the oral hearing of the appeal. He, rightly in my judgment, set out that the appeal relates to the balancing of interests for and against disclosure of personal information under section 40(2) of FOIA.

The Information Commissioner argues that the potential errors of approach identified in the grant of permission to appeal in respect of the First-tier Tribunal’s approach to the first question distilled from the South Lanarkshire case were not material to the First-tier Tribunal’s decision as it had answered this question in Mr Pereira’s favour, as it had the second South Lanarkshire question. It was only if both of those first two ‘South Lanarkshire’ questions were answered in Mr Pereira’s favour that the third question and the balance of the competing interests could arise. The Information Commissioner argues that the only issue that concerns Mr Pereira on this appeal is whether the First-tier Tribunal approached the balance of the competing interests correctly, and the First-tier Tribunal’s approach to any logical prior issues is therefore irrelevant to this appeal.

In any event, it is argued, by the Information Commissioner, that the First-tier Tribunal did not wrongly approach or conflate the first two questions under South Lanarkshire. He argues that the First-tier Tribunal recognised in the first sentence of paragraph 41 of its decision that South Lanarkshire question (i) is a binary one of “Is there a legitimate interest in disclosure”. The second sentence of paragraph 41 was commenting on the strength of that interest but was doing no more than foreshadowing the balance to be struck in South Lanarkshire question (iii). Nor did the First-tier Tribunal wrongly import issues from South Lanarkshire question (ii) in its question (i) consideration. The concern appeared to arise from the second and third sentences in paragraph 41 of the First-tier Tribunal’s decision, but any additional points there raised were, again, only foreshadowing the balance of interests under question (iii) in South Lanarkshire.

As for the point raised in the grant of permission to appeal, about the nature of any expectation the third party may have had about his information remaining private, the Information Commissioner considers that that no distinction should be drawn as a matter of principle between different bases for such an expectation. The balancing of the interests under section 40(2) of FOIA will be case-specific and, accordingly, the strength of the expectation and the weight to be accorded to it will vary depending on the facts of each individual case.

Focusing then on Mr Pereira’s grounds of appeal, the Information Commissioner argues that they have no merit in error of law terms as they were doing no more than seeking to have the factors under the balance of interests re-evaluated.

Mr Pereira in his written and oral arguments before me did not make any argument on the points raised in paragraph 16 in the grant of permission to appeal. He focused on his grounds of appeal, as well as points concerning compliance with the First-tier Tribunal’s substituted decision notice. In short, Mr Pereira argued, first, that less weight should have been afforded to the third party’s privacy interests because that third party had been found to have committed fraud. He relied on page A28 of the First-tier Tribunal’s open bundle as showing a finding of proven fraud. Mr Pereira argued, secondly, that more weight ought to have been given to the need for transparency and accountability because, he considers, the Insolvency Service’s checks had been shown to be inadequate. He argued, finally, that there was no evidential basis for what the First-tier Tribunal said in the first sentence of paragraph 43 of its decision about the third party having no expectation that the Insolvency Service would have disclosed details of his DRO application to the world at large.