[2025] UKUT 251 (AAC)

The PSNI does not clearly set out the grounds of appeal it advances against the judgment; it appears that [6] of the UT13 form is intended to do so, although [6(1)] cannot be a ground of appeal as neither the IC nor the Tribunal has ever suggested that LPP was anything other than an important right. As articulated in PSNI’s reply, it advances its appeal on two main alternative issues.

The first, and now the focus of the appeal, is on the Tribunal’s interpretation of s.51(1), and in particular its conclusion at [60-61] that a Notice issued under s.51(1)(a) (as this Notice was, in terms) is not required to satisfy a “reasonably requires” test. This in truth appears to have nothing to do with the withheld information being subject to LPP; it is an argument at large.

The PSNI’s argument that the issue of a Notice under s.51(1) must meet a test of “reasonably requires” where it seeks LPP material – an argument it advanced for the first time in the course of oral submissions before the Tribunal and which formed no part of its pleaded or written case – is not arguable. The Tribunal was correct in law to dismiss it.

The argument requires the Upper Tribunal to ignore the carefully drafted and differentiated language in fact used by Parliament in s.51. S.51(1) creates two distinct threshold conditions for the power to issue a Notice. One of those, in s.51(1)(b), is framed on the basis that the IC “reasonably requires” the information sought. But s.51(1)(a) is, quite deliberately, not so framed. S. 51(1)(a) requires only that the IC “has received an application under s.50”. The two subsections are distinguished by an “or”. The two distinct bases for a Notice are also reflected in the references to their separate language in the closing part of s.51(1).

Furthermore, s.51(2) specifically recognises the distinction between the two subsections, imposing different conditions on the IC depending on whether the Notice is issued under (1)(a) – in which case (2)(a) applies – or under (1)(b), in which case (2)(b) applies.

The language is unambiguous, but 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 their statutory rights. Parliament intended that the IC should have access to any information he wished to have, including in particular the information in dispute, in order to resolve that dispute. In contrast, when exercising regulatory functions outside of the scope of an individual case, in a more thematic or systemic context of the kind set out in s.51(1)(b), the power to require the provision of information is understandably rendered more narrowly. That is a different function, engaging different policy and legal interests and arising in a different, discretionary, context. Parliament understandably distinguished between the cases.

That this is the natural and correct meaning of s.51(1) was also held by the Tribunal in Cabinet Office v Information Commissioner & Good Law Project [2025] UKFTT 306 (FTT), which concerned another appeal against an

information notice and in which a similar argument to that now run by the PSNI about the test applicable under s.51(1)(a) was advanced by the Cabinet Office. The Tribunal (UTJ Rintoul presiding) rejected the argument, holding at [38-40] that:

“38.

We are satisfied in the light of the submissions by [counsel for the Commissioner], to an extent accepted by [counsel for the Cabinet Office], 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 [counsel for the Commissioner] 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 conclude that, as [counsel for the Commissioner] 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)[a] relates to a power of the Commissioner which arises in context in an individual case for which a duty to investigate flows.”

if the PSNI were correct and s.51 did not apply to material asserted by the public authority to attract LPP, s.51(5) would be entirely otiose. The PSNI has never been able to articulate what function s.51(5) would serve if it were correct in its argument that s.51 does not extend to LPP material at all.