[2025] UKUT 251 (AAC)

Having read Mr Dunford KC’s skeleton argument and heard his oral submissions, I am satisfied that the grounds of appeal are reasonably arguable and I grant permission to appeal in respect of both of his grounds of appeal, but I am also satisfied that Mr Knight for the IC is correct in his analysis of the position and accordingly I dismiss the substantive appeal.

As a matter of statutory interpretation, I am satisfied that the two subsections in s.51(1) are clearly separated and are separated by a disjunctive “or”

“(1)

If the Commissioner—

(a)

has received an application under section 50, or

(b)

reasonably requires any information—

(i)

for the purpose of determining whether a public authority has complied or is complying with any of the requirements of Part I, or

(ii)

for the purpose of determining whether the practice of a public authority in relation to the exercise of its functions under this Act conforms with that proposed in the codes of practice under sections 45 and 46,

he may serve the authority with a notice (in this Act referred to as “an information notice”) requiring it, within such time as is specified in the notice, to furnish the Commissioner, in such form as may be so specified, with such information relating to application, to compliance with Part I or to conformity with the code of practice as specified”.

There is nothing in the language of s.51(1) to suggest that the “reasonable requirement” stipulation in s.51(1)(b) is and has to be read back into the provision of s.51(1)(a), if the IC has received an application under s.50.

That there is a distinction between the two provisions is supported by the different requirements as to the contents of an information notice served under s.51(1)(a) as opposed to s.51(1)(b), as set out in s.51(2).

In a case falling within subsection (1)(a), the information notice must include a statement simply that the IC “has received an application” under s.50. By marked contrast, in a case falling within subsection (1)(b), the information notice must include a statement—

“(i)

that the Commissioner regards the specified information as relevant for either of the purposes referred to in subsection (1)(b), and

(ii)

of his reasons for regarding that information as relevant for that purpose”.

The Appellant is right to note that the original sources for the form of s.51 was the equivalent power in s.43 of the DPA 1998, but as Mr Knight said that reflects the deliberate consistency of framing the legislation which Parliament had adopted.

In my judgment, Mr Dunford KC’s argument amounts not to statutory interpretation of s.51(1), but an invitation to purported judicial legislation in respect of it. He did not seek to argue a linguistic basis for his distinction. The purposive approach to statutory interpretation of Lord Dyson MR in R(Andrews) is undoubtedly correct, but if there is no ambiguity on the face of the statute, no inconsistency with the statutory purpose and no anomaly or illogicality, the question of a purposive interpretation as a tool to seek to get round the plain and obvious meaning of the statutory words cannot arise in the first place.

I also accept Mr Knight’s arguments which I have set out in paragraphs 52 and 53 above about (a) the statutory functions of the Tribunal and the IC and (b) the criticism which the Upper Tribunal has previously expressed of the IC for adopting an approach in which an assurance from the public authority that an absolute exemption applied was accepted, with the result that the information itself was not considered and the reasons for the assurance were not scrutinised. That criticism would indeed only be heightened in a context where the IC accepted the assurance of a public authority as to the proper outcome of the public interest balance without being able to examine the content of the withheld information to assess that question for himself.

As is illustrated by the decision in Department of Health, FOIA requires those involved (whether the public authority, the IC or the Tribunal) to assess requested information on a contents and not a class basis: at [20-21], [23] and [30-31] in particular. I agree with Mr Knight that it will be very rare that a content-based focus of the application of the public interest balance could be carried out by the IC without sight of the withheld information in issue.

That, as Charles J held in Department of Health at [66], is the precise statutory function of the IC, as well as the Tribunal, under FOIA:

“The structure of FOIA recognises and reflects the concepts of democratic accountability and institutional competence in that it contains absolute exemptions, qualified exemptions and the executive override in s. 53. The creation of qualified exemptions gives both the Information Commissioner and the FTT statutory roles as decision makers on the public interest assessment dictated by s.2(2)(b) (see ss. 50, 57 and 58 of FOIA). To my mind, this is a powerful indicator, whose strength is increased when the underlying purposes of FOIA are taken into account, that Parliament has given the Information Commissioner and the FTT the task of (and in terms of institutional competence – constitutional responsibility for) carrying out a critical examination of the evidence and argument on both sides of the public interest balance in determining whether a qualified exemption applies” (emphasis added).

I agree entirely that the structure of FOIA is a powerful indicator, the strength of which is increased when the underlying purposes of the statute are taken into account, that Parliament has given both the IC and the Tribunal the task of (and in terms of institutional competence – constitutional responsibility for) carrying out a critical examination of the evidence and argument on both sides of the public interest balance in determining whether a qualified exemption applies. The essential vice of the Appellant’s submissions is that they effectively seek to diminish, if not shut out, the role of the IC in that statutory scheme.

Likewise, the Upper Tribunal has hitherto been critical (and rightly so) of the IC on a previous occasion for adopting an approach in which an assurance from the public authority that an absolute exemption applied was accepted, with the result that the information itself was not considered and the reasons for the assurance was not scrutinised. As was said in Corderoy at [90-95]:

“The procedural point - Was the Commissioner entitled to rely on an assurance on behalf of the AGO/CO that the Advice was exempt under section 23(1) FOIA or ought she to have exercised her statutory powers so as to require the Advice to be disclosed to her for her consideration?

90.

During the hearing, we expressed surprise at the approach taken by the Information Commissioner and through counsel she modified her defence of the approach by accepting that she should have asked for more detail and not accepted the assurance in the terms it was given but she did not accept that it was necessary for her to look at the documents in this case.

91.

We expressed surprise at the approach taken by the Information Commissioner and the other two respondents of respectively seeking and relying on and giving and supporting reliance on such an assurance in this case because in our view that approach fell well short of what was required under FOIA.

92.

It follows that we welcome the Information Commissioner’s modification of her position but we disagree that it would not have been necessary for her to look at the documents in this case whatever further (and undefined) detail she accepts she should have sought.

93.

A feature of this case is that the Cabinet Office and the Attorney General’s Office had come to different conclusions on the application of the absolute exemption in section 23. Without explanation, other than an assertion that it had been wrong, the Attorney General’s Office has adopted the view advanced in the assurance given by Mr Jaspert on their joint behalf. Of itself, that disagreement and absence of explanation should have indicated that the seeking, giving and reliance on an unexplained assurance were inappropriate.

94.

However, on the assumption that there had been no difference in the conclusions reached by the two public authorities, we do not understand how it was thought appropriate to seek and offer an assurance that did not address the test being applied by the person giving it, and so his reasons for giving it, in particular regarding the way in which the requests were framed and so the disaggregation of the legal advice proposed.

95.

We acknowledge the resource difficulties of the Information Commissioner but we consider that the course adopted here of effectively permitting the other two respondents to be the decision-maker on the challenge to their stance on the application of the absolute exemption in section 23 is unfair.”

That criticism would equally apply if the IC accepted the assurance of a public authority as to the proper outcome of the public interest balance without being able to examine the matter for himself.

Whilst there is powerful authority which rightly recognises the inherent weight to be given to the public interest in maintaining LPP under s.42, that exemption must not to be surreptitiously converted into an absolute one and “a fact sensitive weighing of the competing public interests must be carried out”: see Corderoy at [67-68].

My conclusion on the construction of s.51(1)(a) and (b) therefore accords with the recent decision of the Tribunal in the Cabinet Office caseat [35-40] (although I have reached my conclusion independently of it):

“35.

We address first the proposition advanced by the Cabinet Office that the power under section 51(1)(a) to issue an Information Notice is subject to a requirement that the Commissioner reasonably requires the information. The submission put is that the response from the Commissioner does not identify any sensible basis on which parliament might have intended Section 51(1)(a) and Section 51(1)(b) to operate differently.

36.

We do not accept this proposition. We bear in mind that as with the exercise of all statutory powers, the discretion to issue a notice pursuant to Section 51 is subject to the usual constrictions on the use of public power including what is normally referred to in shorthand as Wednesbury unreasonableness, or irrationality. We accept that parliament would have been aware of this when enacting Section 51(1).

37.

Further, the existence of that public law constraint on the use of the power answers the submission that the Commissioner's response is in effect that he is entitled to information regardless of whether it was reasonably required; we see no reason to conclude that the Commissioner is suggesting that the power to request information is not subject to the public law constraint that the power is exercised rationally.

38.

We are satisfied in the light of the submissions by Mr Knight, to an extent accepted by Mr Pitt-Payne, that the mischief of sub-Sections (1)(a) and (1)(b) is different. Section 51(1)(a) flows from the Commissioner being given an application under Section 50 which in turn requires him, hence the use of the word "shall", to take specific action to investigate a complaint and to make a decision whether the public authority has dealt with the application in accordance with the requirements of Part 1 of the Act. The circumstances in which the Commissioner can opt not to make a decision are limited to those circumstances set out in sub-Section 50(2) of FOIA.

39.

The circumstances in which Section 51(1)(b) would apply in particular in relation to sub-paragraph (ii) is much wider and would be, for example, as Mr Knight submitted, if the Commissioner became aware that a particular exemption was being routinely used, for example, Section 40 to redact all names, which was not justified. There is, we accept, more of an overlap between 51(1)(a) and 51(b)(i).

40.

We are aware that a similar issue was touched on to a limited extent in UKIP v Information Commissioner [2019] UKUT 62 (AAC) but we bear in mind that case related to the DPA, not FOIA, albeit that the relevant provisions are similarly worded. We conclude that, as Mr Knight submitted, Section 51(1)(a) was deliberately drafted to be different from (1)(b). We find no ambiguity and we accept the proposition that what the Cabinet Office is seeking to do is to read words into a statute which are not there and which are not necessary for it to make sense. There are clear textual differences as can be seen by the use of the word "or" and the separation out of the two different duties. Further, we accept the proposition that 51(1)(b) relates to a power of the Commissioner which arises in context in an individual case for which a duty to investigate flows.”

As Mr Knight (who was one of the counsel in the case) noted, that case was not being pursued on appeal and the Cabinet Office had already complied with the decision.

The language of s.51(1)(a) is unambiguous, and different from the language of s.51(1)(b), but I accept that the distinction derives from the IC’s functions under FOIA. When in receipt of an application under s.50, he is adjudicating upon the legitimacy of the denial by a public authority of a person’s exercise of his statutory rights. Parliament intended that the IC should have access to any information which he wished to have, including in particular the information in dispute, in order to resolve that dispute. The mischiefs at which s.51(1)(a) and s.51(1)(b) are directed are different and their ambit is not the same.

S.51(1)(a) applies when the IC receives an individual application under s.50, which requires him to take specific action to investigate the complaint and to make a decision as to whether the public authority has dealt with the application in accordance with the requirements of Part 1 of FOIA. The limited circumstances in which he can opt not to make a decision are limited to those circumstances set out in s.50(2)