[2023] UKUT 142 (AAC)

So far as material, FOIA provides that

“30 Investigations and proceedings conducted by public authorities

(1)

Information held by a public authority is exempt information if it has at any time been held by the authority for the purposes of—

(a)

any investigation which the public authority has a duty to conduct with a view to it being ascertained—

(i)

whether a person should be charged with an offence, or

(ii)

whether a person charged with an offence is guilty of it,

(b)

any investigation which is conducted by the authority and in the circumstances may lead to a decision by the authority to institute criminal proceedings which the authority has power to conduct, or

(c)

any criminal proceedings which the authority has power to conduct.

…

58 Determination of appeals

(1)

If on an appeal under section 57 the Tribunal considers—

(a)

that the notice against which the appeal is brought is not in accordancewith the law, or

(b)

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2)

On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based”.

S.30 is a class-based exemption. There is no requirement for a public authority to demonstrate prejudice for s.30(1)(a) to (c) to be triggered. Those provisions are subject to a public interest test.