[2025] UKUT 99 (AAC)

The First-tier Tribunal at [3] to [7] of the decision held that the appeal was limited in scope to challenging the IC’s decision in relation to request DPR 188 and that there was no challenge to the decisions in relation to DPR 189-190 in the appeal, so he would have to apply to amend his appeal.

By rule 22(2)(e), (f) and (g) the notice of appeal is required to set out: details of the decision or act, or failure to decide or act, to which the proceedings relate; the result the appellant is seeking; and the grounds on which the appellant relies. That information then forms the basis for the appeal. By rule 5(3)(c) the Tribunal has power to permit a party to amend a document. That is a power to be exercised in accordance with the overriding objective in rule 2.

The question of whether a notice of appeal contains a particular ground of challenge or not is in the first instance a matter for the judgment of the First-tier Tribunal. The Tribunal has to consider the notice of appeal fairly, objectively, as a whole and taking due account of the skills, knowledge and experience of the drafter (in other words, in this case, making due allowance for it being drafted by a litigant in person). The observations of the HHJ Auerbach in Pranckz v Hampshire County Council UKEAT/027219/VPat [50]-[52] about how Employment Tribunal claim forms should be construed apply equally in this context, although other strictures as to the interpretation of employment tribunal claim forms may not. The relevant parts of those paragraphs are as follows:-

In this case, I consider that the First-tier Tribunal has erred in law in its construction of the appellant’s notice of appeal. I acknowledge that the only outcome of the appeal that the appellant identified he wanted in box 6 of the form was the release of DPR 188, that DPR 188 is the only request he mentions on page 13 and that the beginning of the grounds of appeal attached to the notice of appeal states in bold that he is limiting the appeal to DPR 188. However, an appeal form needs to be construed as a whole. In this case, the first paragraph of the grounds of appeal states that the appellant found the Decision Notice to be a “painful document” on two main counts. The first of those is that the appellant says the ICO has treated as FOI requests, two requests that should have been treated only as subject access requests (SARs) and not as FOI requests. The requests he refers to are DPRs 189 and 190.

The document can therefore be understood as including as a ground of appeal that DPRs 189 and 190 were SAR requests and not FOI requests. The IC understood this to be a ground of appeal because [33]-[35] of the IC’s response deals with this point. The Tribunal also recognises that this point was pleaded because it identified this as being one of the appellant’s two grounds of appeal at [77.2] of its decision (albeit it there states that this ground of appeal is “outside our remit” rather than it was not part of the pleaded case at all, as it put it in [3]-[7] of its decision).

I therefore consider that it was irrational for the Tribunal to regard the appellant as not having pleaded as a ground of appeal that DPRs 189 and 190 should have been dealt with as SARs and not as FOIA requests.

There is also a further error in the First-tier Tribunal’s decision. The reasons that the Tribunal gives for finding that this ground of appeal was ‘outside its remit’ were set out at [11]. In addition to holding that the ground of appeal was not pleaded, the First-tier Tribunal states that an assertion that a request should have been dealt with under data protection legislation was not a matter within its jurisdiction. The First-tier Tribunal stated it would only have jurisdiction to decide if the requested information was the requestor’s personal data if the public authority had refused to provide the information under section 40(1) of FOIA (the personal data exemption).

However, in my judgment this reasoning is also wrong in law. The Tribunal, standing in the shoes of the IC on an appeal under sections 57 and 58, does have jurisdiction to decide whether they are ‘requests for information’ within the meaning of section 1(1) of FOIA 2000 or not and therefore whether they had rightly been treated as FOI requests by the ONS and the IC. That is because the First-tier Tribunal’s jurisdiction is to consider whether the Decision Notice issued by the IC under section 50 is or is not in accordance with the law, which can in principle include considering whether the request for information was a request within the meaning of section 1(1) or not.

I need also to say something about the First-tier Tribunal’s observations about section 40(1) of FOIA. If on an appeal the First-tier Tribunal decided that a request was a request for the appellant’s personal data, then the question would arise as to whether ONS would wish, in order to comply with its duties as a controller of personal data, to rely on section 40(1) of FOIA to refuse disclosure under FOIA. The First-tier Tribunal is right that the fact that a public authority had not relied on section 40(1) (either when originally responding to the request or in the course of defending an appeal) would mean that any issue as to whether section 40(1) applied would not be before the Tribunal. That is because a local authority is not obliged to rely on exemptions, it just has the option to do so (since section 17 gives it a discretion as to whether it relies on exemptions and section 2 merely relieves the local authority of the obligation to disclose under section 1 where an exemption applies). However, consistent with the principles underpinning the data protection regime, if it were identified in the course of an appeal that a request included a request for personal data that had not previously been recognised or dealt with as such, the First-tier Tribunal would need to take that into account in relation to any discretion it exercised as to disposal of an appeal. For example, it may need if an appeal by a requester succeeds to issue a substitute decision notice (such as the First-tier Tribunal actually did in this case) which enables the public authority to have an opportunity to consider its obligations as a data controller rather than merely being required to release the information requested.