[2024] UKUT 71 (AAC)

At [61], the FTT decision said it was of the view that “the provision of alternative legal mechanisms or means, enabling access to the type of information requested” reduced the weight of PLP’s PIBT arguments based on the importance of transparency. The FTT decision referred to individuals’ right to information about automated decision making, under GDPR provisions. It said that this went “some way towards mitigating public interest through disclosure under FOIA”. Furthermore, the examples of “alternative means” to resolve indirect discrimination issues, as set out at [62], were “judicial review or other legal causes of action, challenges and other public officials and/or authorities that can provide a means of redress”.

PLP argues that the GDPR rights referred to in the FTT decision are “effectively excluded” in the area of immigration and crime (citing Schedule 2 (Exemptions from GDPR) Data Protection Act 20118, paragraphs 1-2 and 4).

Whilst I am persuaded that the FTT decision’s reference to GDPR was far from fully explained, and should have dealt with the exemptions to which PLP has referred, I am not persuaded that there is any material error of law in the relevant parts of the FTT decision, read in context. The PIBT section of the FTT decision starts at [57] with the FTT decision generally accepting and adopting IC’s arguments and reasoning on PIBT; then there is the finding of a “very strong public interest” in law enforcement, etc, at [58]. [59] and [60] consider public interest in disclosure: but within [60] there is a statement that public interest in disclosure “is outweighed by” the prejudice that would be caused to the immigration system (in other words, in effect, a conclusion on PIBT is reached at that point in the FTT decision). The factors discussed at [61] and [62] are not therefore, to my mind, decisive. This is reflected in the language used in those paragraphs: [61] says that the “alternative” means “reduce the weight” of PLP’s transparency argument; and that GDPR-derived information (which, I say, is not adequately explored or explained in the FTT decision) “goes some way towards mitigating” public interest in disclosure. It seems to me that the language the FTT decision uses indicates that these were not determinative factors. It follows that there was no material error of law in the FTT decision’s not presenting the GDPR position as fully as it should have.