[2025] UKUT 251 (AAC)

Mr Dunford KC submitted that in any case where the IC is investigating an alleged failure by a disclosing authority to meet its duties under Part I of FOIA (a “Part I Enquiry”), on a true construction of s. 51(1), he is entitled only to information from that authority which he reasonably requires. This is the case whether the Part I Enquiry has been triggered by an application under s. 50(1) (“Trigger A”), or whether he is conducting the Part I Enquiry pursuant to s.51(1)(b) (“Trigger B”).

The overall purpose of FOIA, more especially Part I, is to provide for the provision of information by a disclosing authority to an applicant, unless that information is (a) absolutely exempt from disclosure or (b) exempt, unless the public interest in its disclosure outweighs the authority’s interest in not disclosing (the qualified exemption).

Material covered by LPP (the documentation in issue in this case) is, by virtue of s.42, subject to qualified exemption from disclosure, requiring an authority dealing with a request for its disclosure to undertake the public interest test. Thus, the disclosing authority is the first (but not necessarily the final) arbiter of whether or not material subject to qualified exemption from disclosure should, following the application of the public interest test, remain undisclosed.

The Tribunal at [59-62] interpreted s.51(1) as creating “…two separate, alternative, scenarios – either (section 51(1)(a)) where [the ICO] has received an application under section 50 or (section 51(1)(b)) where he reasonably requires information for the purposes set out in the sub-sections of section 51(1)(b))”.

If the Tribunal’s interpretation of s.51(1) is correct:

if the IC is undertaking a Part I Enquiry into an alleged failure by a disclosing authority to meet its Part I duties under s.51(1)(b)(i) - that is, Trigger B - he is entitled only to information from that authority which he reasonably requires;