[2025] UKUT 74 (AAC)

The First-tier Tribunal’s decision in this case

In this case, though, the Tribunal has in my judgment done in substance exactly what was required of it. That is because it did, fully and properly, consider the evidence that the appellant relied on in this case as indicating that there may have been improper conduct or a desire by the Commissioner to ‘cover up’ a breach of the UK GDPR by the ICO. The evidence the appellant relied on in that respect was the 7 February 2023 email. The Tribunal addressed this at [12] and gave what are in my judgment adequate reasons for concluding that this email was not ‘the smoking gun’ that the appellant thought it was because, as the Tribunal understood that email, it “did no more than indicate that a lessons learned process should follow the outcome”. That was in my judgment a factual conclusion that was open to the Tribunal in this case. It is not perverse and it is not a conclusion with which it would be appropriate for me to interfere on appeal.

As it happens, I agree with the Tribunal’s interpretation of the email because Ms Jones’ suggestion that the ICO should not be found in breach is presented as relating to the “first half” of Ms Keith’s email which was the part dealing with IC-67118-V8Y4 and the ICO’s explanation that RFA0804334 and RCC0854800 (among other references) had previously been preserved by one department at the appellant’s request, even though another department thought they should not be. In other words, Ms Jones appears to be referring to what was essentially the administrative issue of one department not knowing what the other was doing. It was clearly not a reference to any of the points that have been of principal concern to the appellant on this appeal about what he says was the failure by the Commissioner properly to investigate the subject matter of his complaint. Nor does it have anything to do with the now admitted error by the ICO/Commissioner that the ICO had wrongly regarded appeal EA/2022/0095 as concluded when it was not.

As such, although it would have been better if the Tribunal had given itself fuller directions as to the law, and expressed its judgment less succinctly, I am satisfied that the appellant’s Ground 2 exposes no material error of law in the Tribunal’s decision.

I therefore dismiss Ground 2.