[2025] UKUT 066 (AAC)

I do not accept the argument that Mrs O’Hanlon’s first sentence was “introductory”, and that the request was then, in Mr Tabori’s words, “particularised”. This argument might possibly have been persuasive had the request been drafted by a lawyer; but, clearly, it was not.

I do not accept the argument that Mrs O’Hanlon’s grounds of appeal to the FTT did not extend to an argument that IC’s decision notice erred in failing to find that HSE held documents within the scope of her request (but not necessarily within one of the 11 enumerated “parts”). The first sentence of section 5a (“Grounds of appeal”) of Mrs O’Hanlon’s FTT appeal form reads: “I am appealing against this decision notice because it does not provide with the outcome I am seeking which is to obtain information from HSE which I originally requested on 27 April 2020 as detailed under.” A little further down, she set out her information request, verbatim (though, “for ease of reference”, she used the 11 “item numbers” introduced in IC’s decision notice). Mrs O’Hanlon’s FTT appeal form continues at some length (over four typed pages), recording in detail her interactions with HSE and IC and her disagreement with their views. None of this, however, amounts, in the hands of an inquisitorial and enabling tribunal, to a restriction of Mrs O’Halloran’s clear (and simple) complaint before the FTT, that the IC decision notice was wrong not to find that her request (as I consider it correctly to be interpreted, as set out above) had not been complied with.

Consistent with the point above, I do not accept the argument that Mrs O’Hanlon was changing or expanding the grounds of her FTT appeal when, in her 14 February 2022 “reply”, she referred to the terms of her request (as set out in the opening sentence) not being restricted by the 11 itemised “parts”. I note that, in that document, she says this immediately after stating that it was the first time HSE had “admitted” that certain documents were in its possession. This brings out an argument that Mrs O’Hanlon made at the hearing, and with which I agree: requests made under the regulations are requests for information, not for particular documents; there is plainly no requirement that the requestor specify all the documents within the purview of her request; and, furthermore, the fact that the requestor is able to identify some documents within the purview of her request, and does so, does not mean, absent clear words, that the request is limited to those documents. I am satisfied in this case that neither in the original request, nor in the appeal to the FTT, did Mrs O’Hanlon restrict the scope of her request, or of her appeal, to the 11 items set out in her request, following the initial sentence, which expressed itself in terms not restricted to those items.

I do not accept the argument that, because IC’s decision notice construed Mrs O’Hanlon’s request as restricted to the 11 itemised documents, Mrs O’Hanlon could not argue otherwise on appeal to the FTT. In the words of the statute (s58 and s50), the FTT’s task is to consider whether IC’s decision notice is in accordance with the law; and the decision notice is IC’s decision as to whether, in any specified respect, a request for information has been dealt with in accordance with (in this case, applying regulation 18) the relevant parts of the regulations. This plainly involves the IC decision notice taking a view on what the requested information is; and if it makes a legal error on that matter, that is plainly within the scope of the FTT’s powers. In other words, construing correctly what information is requested is part of dealing correctly with the request under the regulations.

In Public Law Project v IC [2024] UKUT 71 (AAC) (a decision of mine), the Upper Tribunal was dealing with a further, or additional, information request, made by the appellant to the public authority at the stage at which the public authority was reviewing its response to the initial, or principal, information request; and in that case, IC had overlooked to make a decision on the further information request. As was said at [65] of the decision in that case, IC failed to carry out their obligations under s50(3) in respect of that information request; there was no decision on it (and as a result, there was no decision notice in respect of that request).

In Montague v IC [2022] UKUT 104 AAC, a decision of a three-judge panel of the Upper Tribunal, the FTT’s decision had taken account of information which had come into the public domain well after the public authority had made its decision on the information request; the Upper Tribunal held that that the public interest balancing test fell to be judged as at the date of a public authority’s decision on the request; this was because the function of IC on a complaint under s50 was determining whether the public authority had dealt with the request in accordance with the requirements of FOIA, as opposed to re-deciding the request as at the time of IC’s decision; and, likewise, the FTT should have assessed the balance of the competing public interests on the basis of matters as they stood at the date of the public authority’s refusal decision, as the role of the FTT under s58 was focused on the correctness of IC’s decision.