The Right Stuff

A new tribunal – the First-Tier Tribunal (Information Rights) – came into being in January this year. Anya Proops looks at how this affects local authorities and other public sector bodies.

On 18 January 2010, the process by which appeals brought under the Freedom of Information Act 2000 (FOIA) are heard and managed underwent an important sea-change. First, the body which had hitherto heard all appeals under FOIA, the Information Tribunal, was quietly laid to rest. In its place, a new information rights tribunal was born, namely the First-Tier Tribunal (Information Rights). This rather cumbersomely named tribunal (referred to below as the “FTTIR”) will now generally be the first port of call for all appeals brought under FOIA.

Importantly, appeals against decisions of the FTTIR will not lie to the High Court, as was the case under the old information tribunal system. Instead, such appeals will lie in the first instance to the Upper Tribunal, which is a superior court of record, and, thence, to the Court of Appeal. Moreover, the work of the FTTIR is regulated by a new set of rules, the Tribunal Procedure (First Tier) (General Regulatory Chamber) Rules 2009, as amended (the FTT Rules). A consolidated version of these rules can be found on the Tribunal Service website: http://www.tribunalsservice.gov.uk/Tribunals/Rules/rules.htm. The rules governing the Upper Tribunal, namely, the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2698/2008) can also be found on the website.

The practical effect

The important question for those involved in appeals brought under FOIA is what difference the emergence of this new tribunal regime will make in practice. The first significant practical point to note in respect of the new regime is that not all FOIA appeals will lie to the FTTIR. In some cases, an appeal will be heard in the first instance by the Upper Tribunal. Certainly, this will be the case for all appeals brought under s.60 in respect of national security certificates (see r.19(1A) of the FTT Rules).

However, the FTT Rules also allow for other appeals to be referred by the FTTIR to the Upper Tribunal (see r.19(2) of the FTT Rules). It is understood that the Tribunal Service intends to issue a practice direction which will describe the circumstances in which references should be made to the Upper Tribunal. Until such a practice direction is issued, it is probably reasonable to assume that the FTT will use their referral powers under r.19(2) fairly sparingly and will not consider making a reference unless, at the very least, the appeal raises issues of general importance and/or is particularly legally complex.

Protecting disputed information

Assuming that the appeal is to remain with the FTT, the next question which arises is: what do the new FTT rules say about how the appeal should unfold?

One of the most important issues to consider here is what the FTT rules say about protecting the confidentiality of the information which is in dispute in the appeal (the disputed information), particularly pending the outcome of the appeal. This is a very important issue for public authorities as they will want to ensure that the appeal process is not used in a way which ‘lets the cat out of the bag’ by prematurely disclosing the very information which the authority is claiming is exempt from disclosure.

The Information Tribunal as was typically adopted a very protective approach to the disputed information pending the outcome of the appeal. It is highly likely that this protective approach will be preserved under the new regime, particularly through the application of rr. 14(6), 14(10) and 35 of the FTT rules (these rules must be read in conjunction with a new Practice Direction on ‘Confidentiality and Redaction’ dated 18 January 2010). What this means is that, as with the old Information Tribunal, the FTTIR will generally be inclined to:

  • order that the disputed information should be disclosed to the Commissioner and the Tribunal but not to the applicant, assuming he or she is a party to the appeal;
  • allow the public authority and the Commissioner to provide the Tribunal with ‘closed submissions’, insofar as the authority and the Commissioner wish to make  submissions which may themselves reveal the content of the disputed information; and, further,
  • order that the public and the applicant be excluded from those parts of any oral hearing during which the disputed information per se is to be considered and discussed.

Other important features of the new rules

These include the following:

  • Overriding objective – the overriding objective will apply in appeals before the tribunal (r.2);
  • Case management powers – the tribunal has wide case management powers which include powers to convene case management hearings and preliminary hearings and also a power to require a party or another person to provide documents, information or submissions to the Tribunal or a party (r.5);
  • Adding parties – the tribunal has powers to direct that particular persons may be added as parties to the appeal, both of its own motion and on application by the particular person (r.9);
  • Costs – the tribunal has powers to award costs where a party has acted unreasonably in bringing, defending or conducting the proceedings (r.10);
  • Commencing an appeal – the notice of appeal must be received by the Tribunal within 28 days of the date on which the decision notice was sent to the appellant (r.22(1)) and must otherwise meet the various procedural requirements imposed under r.22;
  • Commissioner’s response – the Commissioner will have 28 days to submit his ‘Response’ to the notice of appeal (r.23(1));
  • Replies – the appellant may provide a written reply to the Commissioner’s Response, provided that the reply is delivered to the Tribunal within 14 days of the date on which the appellant was sent the Response (r.24);
  • Setting aside decisions – in certain limited circumstances, the Tribunal has powers to set aside decisions which dispose of proceedings (r.41);
  • Permission to appeal – a person wishing to appeal against a particular decision of the FTTIR must in the first instance apply to the FTTIR for permission to appeal (r. 42); such permission must be sought within 28 days after the decision was sent to the particular party (r.42(2));
  • Power to review – where an application for permission to appeal is received by the Tribunal, the Tribunal must first consider whether the decision should be reviewed (r.43(1)); it may then itself go on to review the decision if it is satisfied that it contained an error of law (r.44(1));
  • Granting/refusing permission - if the Tribunal decides not to review the decision, it must go on to determine whether the application for permission should be granted in whole or in part or should otherwise be refused (r.43(2); if permission is refused, an application for permission may be renewed to the Upper Tribunal (r.43(4)).

Making the transition

Finally, a word on transitional provisions. In respect of appeals commenced prior to 18 January 2010, the FTTIR has a broad discretion as to whether to apply: (a) the old rules (i.e. the Information Tribunal (Enforcement Appeals) Rules 2005); (b) the new FTT rules; or (c) a combination of the two sets of rules (see further paragraph 3 of schedule 5 to the Transfer of Functions Order 2010 (SI 22/2010)). However, in practice, unless there is some obvious form of prejudice to a particular party resulting from the application of the new FTT rules, it is likely that the FTTIR will simply apply the new rules.

Anya Proops is a barrister at 11KBW

www.11kbw.com