[2024] UKUT 290 (AAC)

The permission application came before me (the First-tier Tribunal having refused permission to appeal). Following an oral hearing I decided to grant permission. In my grant of permission I said:

“17.

In this case the Council has consistently denied holding any information which is covered by Mr Puchooa’s request except to the extent that it has already been supplied to him or is his personal information. The Information Commissioner accepted the Council’s account and issued a decision notice which didn’t require the Council to take any further action. The Information Commissioner had to make his decision on the evidence on the balance of probabilities.

18.

When a decision of the Information Commissioner is appealed to the First-tier Tribunal the First-tier Tribunal must decide whether the Information Commissioner’s Decision Notice is in accordance with the law. To reach that assessment the First-tier Tribunal must, where facts are in dispute, make its own assessment of the evidence and make findings of fact on the balance of probabilities. It must then apply the law to those findings of fact to reach its decision.

19.

Had the First-tier Tribunal decided the appeal by assessing the evidence in the same way as the Information Commissioner did and reaching the same findings that the Information Commissioner found, it would have been entitled to do so. However, that is not what happened. Rather, the Information Commissioner applied for Mr Puchooa’s appeal to be struck out before it got to the hearing stage.

20.

For Judge Kennedy KC to be entitled to strike out Mr Puchooa’s appeal, he had to be persuaded that Mr Puchooa’s appeal had no reasonable prospect of success, not just that, on balance, Judge Kennedy KC would reach the same decision.

21.

While I certainly don’t accept Mr Puchooa’s assertion that the evidence is consistent only with his interpretation of it, and that it therefore follows that the Council holds further information to which he is entitled under section 1 FOIA, I am persuaded that it is at least arguable that his grounds for appeal against the Information Commissioner’s decision were themselves arguable. It was, therefore, arguably premature for the proceedings to be struck out.

22.

The reasons given for the Strike Out Decision are very brief. The only ground referred to is that “the Commissioner erred in his application of the required standard of proof in coming to his decision” (see paragraph [9] of the Strike Out Decision). Mr Puchooa’s grounds for appeal are set out in his T98 appeal form. His grounds amount to a spirited and detailed disagreement with the Information Commissioner’s interpretation of the evidence, rather than the standard of proof which he applied. While it is clear that Judge Kennedy KC was satisfied that the Information Commissioner had “carried out a thorough investigation on the facts” (see paragraph [9] of the Strike Out Decision), it may not be adequately clear what Judge Kennedy KC’s assessment of the evidence and findings of fact were. As such the reasons for the Strike Out Decision may not meet the required standard of “adequacy”. That ground also justifies a grant of permission to appeal to the Upper Tribunal.”

I issued Case Management Directions for the parties to make submissions on the appeal and to indicate their preference as to mode of hearing, which they duly did.