Preparing the ground

It can make all the difference if you develop a good understanding of the inner workings of the First-tier Tribunal (Information Rights). Anya Proops provides some practical tips.

As in any other litigation context, the more familiar practitioners become with the inner workings of the tribunal appellate process, the better placed they will be to represent their clients’ interests in individual appeals. In fact, there are a number of aspects of the litigation process which are often overlooked by parties and their representatives.

Sometimes, this merely irritates the tribunal but in other cases it can make the difference between winning or losing on a particular appeal. Points which you may wish to consider in this context include those set out below.

Scope of the Appeal

Particularly where appeals are brought by individual complainants, it may be difficult to decipher what matters are genuinely in issue for the purposes of the appeal. It is very important that, before the appeal hearing commences, the parties endeavour to resolve what matters are in fact in issue for the purposes of the appeal. Failure to do this can result in appeal hearings operating on a misconceived basis. If no agreement can be reached on the issues, the question of what is in issue for the purposes of the appeal should be raised as a preliminary issue with the tribunal.

When seeking to agree the matters in issue for the purposes of the appeal, consideration should be given to whether, despite the breadth of the original request, in the context of the appeal, the appellant is in fact only concerned with a narrower subset of information.

If this is the case, then confirming this fact, either in pre-hearing correspondence or at the start of the hearing, will operate to narrow the scope of the appeal, potentially making it less expensive and time consuming for all concerned.

Sometimes appeals can operate on a misconceived basis because parties have adopted different constructions of the original request and, hence, have assumed that different types of information are in issue. If there is a concern that this is an issue in an appeal, it should ideally be raised in pre-hearing correspondence and, if necessary, with the tribunal. Otherwise, there is a risk that witness statements and relevant legal arguments will not be properly focussed.

Where a public authority is a party to an appeal, it should generally, in advance of the hearing, review the question of whether it has taken an unduly narrow approach to the request or has otherwise failed to identify information relevant to the request. If there is other information which plainly is relevant to the request which has thus far not been considered, it is prudent to:

• notify the other parties and the tribunal of this fact
• make an assessment of whether the new information should be withheld or disclosed
• in any event, disclose the new information to the Commissioner at the earliest opportunity so that he can make his own assessment as to any information which the authority may wish to withhold.

Failure to take these steps can result in appeals becoming stymied as a result of the late disclosure of relevant information. It can also expose the authority to unnecessary adverse findings and even, in the worst cases, costs orders (see further Bowbrick v IC & Nottingham City Council (EA/2005/0006)).

Tailoring evidence

It is essential that parties tailor their evidence very specifically to the particular facts of the case and the particular information in issue. This is an issue above all for public authorities, as typically they must satisfy the tribunal that their conclusion that the particular information was exempt from disclosure was a lawful conclusion.

A public authority will potentially be seriously imperilling its case if it does not give clear evidence (ideally in its witness statements) as to:

1. why, on the particular facts of the case and having regard to the particular information in issue, the particular exemption was engaged, and, further,
2. in the context of the application of any qualified exemption, why  disclosure of the particular information in issue, in the particular circumstances of the case, would, at the particular time when the request was being responded to, have been contrary to the public interest.

Whilst it is of course often easier for witnesses to talk in generalities, the risk of doing so is that the tribunal will find that the public authority has not come up to proof.

Getting the right witnesses

Any party who intends to call evidence on its behalf party may jeopardize its position if it fails to adduce evidence from an appropriate witness. The question of who might be an appropriate witness in any particular appeal will of course turn on all the facts of the case.

However, in every case, the party should be asking itself:

• Do the witnesses we have selected have the necessary expertise to be able to address the kinds of factual questions which are likely to arise in this case? (This will entail consideration not merely of the case that party wishes to put forward but also the kinds of evidential points which are likely to crop up during the hearing, not least having regard to the arguments being advanced by the other parties).
• Are the witnesses we have selected suitably senior and authoritative such that their evidence is likely to carry the necessary weight with the tribunal?
• Are the witnesses we have selected going to be able to deal authoritatively with the particular circumstances of the case? (A mistake which is often made by public authorities is that they are inclined to call senior officials who can speak authoritatively on general issues but who lack an understanding of how things worked on the ground. A public authority which limits itself to such a witness may well find it is simply unable to answer key factual issues being raised by the other parties or the tribunal).

Closed statements

In order to persuade the tribunal that its case genuinely takes into account particularities as well as generalities, the public authority will often need to put in a closed statement which engages in detail with the specific information in issue and also with any sensitive matters relevant to the appeal which cannot safely be referred to in any open statement.

However, a mistake which authorities often make is that they include evidence in the closed statement which could on any reasonable view have been given in an open statement. This typically results in objections being made by the tribunal and/or the Commissioner and time being wasted at the hearing working out which parts of the closed statement should now be revealed in open session. It follows that public authorities should always road test any draft closed witness statement in order to determine whether there is material in the closed statement which ought to be in the open statement. Note, this is an important consideration, not least because of the tribunal’s duty to ensure that Article 6 (fair trial) rights are secured and that as much of the hearing is conducted in open session as possible.

Similar considerations apply in respect of any closed skeleton which the authority may submit for the purposes of the appeal.

Other practical measures

Often public authorities will have disclosed certain elements of the withheld information to a complainant by providing them with a redacted version of the information. It will generally assist the tribunal if, in any closed, unredacted version of the relevant document, any elements of the information which have been disclosed are highlighted.

Thus, the tribunal will be able to see in one document what has and what has not been disclosed to the complainant. Similar principles apply where an authority has adduced a single witness statement with open and closed elements, the closed elements having been redacted in the version placed in the open bundle.

Finally, if you are a complainant’s representative, it will often assist your client’s case if you compile a series of questions which you would wish the tribunal to put to the public authority’s witnesses in closed session. You may want to submit these in writing, although this will not always be practicable. Creating such a list avoids a situation in which the tribunal has to surmise for itself which questions the complainant would wish to ask if he/she were present in closed session.

Anya Proops is a barrister at 11kbw (www.11kbw.com).