[2023] UKUT 157 (AAC)

The relevance of ground a. to the matter before the FTT – whether the decision notice was correct in law – is that the right of access to information, in s1, applies to information “held” by public authorities. By s3(2)(b), information is held by a public authority including where another person holds it on the authority’s behalf.

The findings of the FTT relevant to ground a. are those at [93] and [94] that, at relevant times

The FTT decision stated that the findings at [93] and [94] were made “on the evidence”.

The submissions of TBGS on ground a., in brief, were that none of the three letters referred to in the ground (those of 24 September and 1 October 2019) stated that the report of the independent statistician had been given by GLAL to TBGS (the closest they came was the first of these letters, which stated that subsequently that report would be so given). There was therefore, in the context of the FTT decision’s other findings on the subject (which the submissions reviewed in detail), no error of law, in the form of inadequate explanation of how the FTT concluded that TBGS did not hold this document.

The appellant’s submissions on ground a. were that the findings at [93] and [94] were inadequately explained in the context of

It is clear from [93] and [94] that the evidence on which the FTT relied for these findings was that of Ms Walton and Mr Hilton (head of admissions testing at GLAL), whom the FTT found (at [85]) to be “competent credible and reliable”. In that regard I note (and the underlinings in what follows are mine)

The question of whether TBGS itself held the statistician’s report is a straightforward question of fact, and one within the direct knowledge and experience of witnesses whom the FTT found to be credible and reliable. It is reasonably clear, in context, that the FTT accepted the witnesses’ specific evidence cited above, that there was a change of heart on GLAL’s part following the 24 September 2019 letter as regards giving the statistician’s report to TBGS - and it decided not do so. It was adequate in the circumstances for the FTT decision to have summarised the witnesses’ evidence, given its view on their credibility and reliability, and then stated that, based on this evidence, it made this finding.

The finding that GLAL did not hold the statistician’s report on behalf of TBGS is also, to a large extent, based on evidence of Ms Walton and Mr Hilton as witnesses of facts within their direct experience – what the understanding was between the two entities, TBGS and GLAL, at the relevant time – as well as the contemporaneous documentation. At [69], the FTT decision summarised the evidence of Ms Walton that was in paragraphs 24-25 of her 20 October 2021 witness statement, cited by the appellant in his submissions (see paragraph 23 above), and stated:

“Ms Walton also confirmed that under the terms of the agreement [with GLAL] TBGS does not have a right to request or see a copy of the internal analyses undertaken by GLAL nor reports prepared by independent statisticians. While TBGS could make a request, GLAL has no obligation to release such information”.

In this context, including the fact that none of the letters cited in ground a. state that the statistician’s report was held by GLAL on behalf of TBGS, the FTT’s explanation of its finding to that effect, was adequate: it was a finding of fact based largely on the direct knowledge of witnesses deemed to be credible and reliable; and there was no contemporaneous documentary expressly to the contrary.

For these reasons, ground a. is not made out.