[2025] UKUT 066 (AAC)

It will be evident from the analysis above that the key issue that now needs determining is whether, in relation to the Amark contravention letters, and as at the date of HSE’s reconsideration decision in August 2021, the public interest in maintaining the exception for information not held at the date of receipt of the request outweighed the public interest in disclosure. I am not in a position to decide that matter, as I did not hear argument and evidence on the point. It seems to me the FTT is the better forum in which to determine this matter, as it is the fact-finding tribunal, and well accustomed to making determinations on the balance of competing public interests. As it has been nearly three years since the original FTT hearing, I see no particular efficiency in remitting this to the same panel (and it could well cause unnecessary delay); and a hearing before a fresh panel avoids any issue of appearance of bias. It also seems to me fair and just for the new FTT panel to consider the remitted matter entirely afresh, without having to try to make inferences from the original FTT decision as to what that that panel might have said about a matter to which they did not turn their mind. This explains my directions at the start of this decision.