[2024] UKUT 71 (AAC)

The starting point in considering this ground is the jurisdiction of the FTT, as set out at s58: the FTT is to allow an appeal, in a case such as this, if it considers that the IC decision notice is not in accordance with the law; or, to the extent that the IC decision notice involved an exercise of discretion by IC, that IC ought to have exercised that discretion differently. The FTT’s jurisdiction is thus “framed” by (in this case) the IC decision notice.

As for the content of that decision notice, s50 provides that, upon receiving an application (for IC to make a decision as to whether, “in any specified respect”, a request for information has been dealt with in accordance with the requirements of Part I FOIA), IC must either notify the “complainant” that IC has not made an decision, or serve a decision notice on the complainant and the relevant public authority.

In this case, PLP’s application to IC under s50 did specify PLP’s “further information” request. Hence, PLP’s “further information” request was capable of coming within the FTT’s jurisdiction. (In this regard, I disagree with the FTT decision insofar as it found (at [67] and [72]) that because PLP’s “further information” request was not within PLP’s original information request, it could not come within the FTT’s jurisdiction on appeal against the IC decision notice.)

In the event, however, PLP’s “further information” request did not fall within the FTT’s jurisdiction – and this was because the IC decision notice was silent on it. In other words, IC failed to carry out his obligations under s50(3): there was no decision in the IC decision notice on PLP’s “further information” request. Neither did IC notify PLP, under s50(3)(a), of that failure (or of any valid grounds for it).

IC’s failure in this regard is reflected in [70], where the FTT decision states that IC conceded in his “response” to the appeal that PLP’s “further information” request was “overlooked” in the IC decision notice. IC invited the FTT to issue a substitute decision notice under s58(1) to the effect that IC did not hold the “further information” requested.

The FTT, quite correctly, declined to do this; in circumstances where the “further information” request was not dealt with in the IC decision notice, the FTT had no jurisdiction to deal with it, either. (It is possible that PLP had some other legal remedy against IC for its failure to fulfil its obligations under s50(3), such as judicial review, but that was not a matter for the FTT or, indeed, for this tribunal).

The FTT was therefore correct to decide that any appeal in relation to PLP’s “further information” request was not within its jurisdiction, albeit for somewhat the wrong reasons.

I note, parenthetically, that the view I express here is consistent with that in Information Rights (6^th edition, by Philip Koppel KC) at 46-048(3).