[2024] UKUT 206 (AAC)

Following a hearing on 13 February 2024, I gave permission to appeal.

The permission decision noted that, in addition to how the FTT decision summarised Mrs Farnsworth’s FTT appeal form, box 5a of that form (“grounds of appeal”) said “Please see my notes attached” and these run from A15 to A46 in the FTT bundle; these were largely copies of documents, as the FTT decision noted, but they are interspersed with notes by Mrs Farnsworth. The permission decision noted that, in these, Mrs Farnsworth referred to the information requested as the DLP consultants report (for example on page A30).

The permission decision found it arguable that the FTT erred in law by construing Mrs Farnsworth’s grounds of appeal overly literally, given that she is a litigant in person; arguably, the FTT, acting inquisitorially and in keeping with the overriding objective of the FTT’s procedure rules, should have recognised that

The permission decision found the foregoing arguable error on the part of the FTT to be material: if the FTT had recognised Mrs Farnsworth’s grounds as being that the challenged IC decision erred by treating her information request as caught by regulation 12(4)(d), then it was realistically arguable that the FTT would not have struck out the appeal as having no reasonable prospect of success, as it was (again) realistically arguable that a report written by a consultant company and given to the council was neither “material still in the course of completion”, nor an “unfinished document”. (The permission decision noted in particular that “material” in the former phrase was held in Highways England Company Ltd v IC and Manisty [2019] AACR 17, a ‘reported’ decision of this chamber of the Upper Tribunal, at [23], to mean something with physical existence i.e. not something incorporeal, like a project, an exercise or a process).

IC produced a response to the appeal, drafted by counsel; and Mrs Farnsworth put in a reply. IC said the appeal should be determined on the papers; Mrs Farnsworth asked for an oral hearing. In all the circumstances, I have decided it is fair and just to determine this appeal without a hearing.

I am grateful to both parties for their submissions.

IC’s submissions referred to the detail of the challenged IC decision, in particular paragraphs 13 and 14 (under the heading, “The Council’s arguments”), which stated that

IC’s submissions also referred to several of the paragraphs of the challenged IC decision under the heading, “Balance of the public interest”, which contained reasoning about the public interest in releasing “draft reports in relation to planning applications”, and included noting that the council published “the final versions of these reports online”. IC had seen the requested information (the “draft decision document”, as the challenged IC decision called it) and noted that “whilst there are some changes, these do not impact on the outcome of the final draft report that has been disclosed. Amendments have been made from the draft to the final version, however, these are to make the final version clearer and more concise, as well as removing information which could be considered personal data”.

IC submitted that: