Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  GIA/1554/2011

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Chief Constable of Devon and Cornwall against a decision made by a First-tier Tribunal (Information Rights) on 11 April 2011. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit Mr Mathieson’s appeal against the Information Commissioner’s Decision Notice dated 23 September 2010 for redetermination by an entirely differently constituted First-tier Tribunal.

2. On 20 July 2009 Mr Mathieson requested the following (among other) information from the Chief Constable of Devon and Cornwall (“the Authority”) pursuant to the Freedom of Information Act 2000 (FOIA). 

“The locations of fixed, operating number-plate recognition cameras operated by Devon and Cornwall Police or its agencies.”

3. On 18 August 2009 the Authority refused the request, in reliance upon section 31(1)(a)(the prevention or detection of crime), (b)(the apprehension or prosecution of offenders) and (c) (the administration of justice) and section 24 (national security) of FOIA. The letter of 18 August 2009, in considering the “public interest test”, dealt with sections 24 and 31 together, and included the following:

“If the locations of these cameras were published, potential criminals would know where they are, and could bypass/avoid them entirely. This would mean that the Force would be less able to detect and reduce crime on the roads.

……………………………………………

The technology can be used in combating acts of terrorism but also in the prevention and detection of crime and in the reduction of death and injury on the roads. Therefore, if the locations of the cameras were disclosed their capability to prevent such activity would be compromised. Release of the information would mean that ANPR’s role in the prevention and detection of crime would be compromised. The safety of the public is of paramount importance to the policing purpose, and an increase in crime would place the public at risk of harm.”

4. Mr Mathieson complained to the Information Commissioner on 22 September 2009. During the course of the Commissioner’s enquiries the Authority withdrew its reliance on s.31(1)(c) of FOIA but (in the words of the First-tier Tribunal in para 5 of its Decision) “confirmed that it relied upon sections 31(1)(a) and (b) and also section 24 of FOIA in refusing the information sought”.

5. The Commissioner issued his Decision Notice on 23 September 2010. He found that the Authority had applied the exemptions in s.31(1)(a) and (b) correctly, and that the Authority was therefore not required to disclose the requested information. Having reached that conclusion, he did not find it necessary to go on to consider the position in respect of section 24.

6. As regards section 31, the Commissioner found that exemptions in s.31(1)(a) and (b) were engaged – i.e. that the disclosure of the information would be likely to prejudice (a) the prevention or detection of crime and (b) the apprehension or prosecution of offenders. He further found that, “although the public interest factors in this case are finely balanced”, the public interest in maintaining the exemption outweighed the public interest in disclosing the information.

7. Mr Mathieson appealed to the First-tier Tribunal. His grounds of appeal related to section 31, being of course the exemption which had been upheld by the Commissioner. The Authority was joined as a respondent to the appeal on 7 January 2011. The Commissioner’s written response to the grounds of appeal contended that there was no basis for overturning the Commissioner’s conclusions, and noted in para. 17 as follows:

“The Commissioner did not go on to consider section 24(1) FOIA; another exemption relied on by the Police……… These matters are not relevant to this appeal, and are not mentioned further”.

8. The Authority’s Response to the grounds of appeal, dated 31 January 2011, stated that it was in agreement with the Commissioner’s Response, and did not expressly refer to section 24.

9. However, the last paragraph of a short witness statement by Louise Fenwick, the Authority’s Freedom of Information Officer, dated 1 March 2011, stated:

“I also maintain that Section 24(1) remains relevant in his matter as there is personal data of a third party contained in the documents in the closed bundle.”

It is unclear to me how that reference to personal data was relevant to the exemption in section 24, but I do not think that anything can turn on that.

10. The First-tier Tribunal, comprising a Tribunal Judge and two Tribunal Members, considered the matter on the papers (a course to which all parties had agreed) on 31 March 2011, and by its decision made on 11 April 2011 allowed the appeal, and substituted for the Commissioner’s decision notice a decision requiring the Authority to communicate the requested information.

11. The First-tier Tribunal agreed with the Commissioner in finding that the exemption in s.31 was engaged, but concluded as follows:

“24. The Tribunal considers that there was, overall, a weak case made by [the Authority] as to why it thought that disclosure of the information sought would be likely to prejudice policing. [The Authority] sought to rely upon hypothetical argument and evidence produced in relation to other police authorities rather than producing its own evidence as to the material issues. This evidence was sufficient for the Tribunal to find that the exemptions were engaged, however it does not seem to the Tribunal that the argument and evidence before it were sufficient for it to find that the public interest in effective policing outweighed the public interest in disclosure of the requested information. The Tribunal took into account the fact that the requested information concerned a subject in which there has been much public interest and debate (including in Parliament). The Tribunal noted that the requested information concerns the privacy of the individual. The official ACPO guidance recognises that the use of ANPR cameras must be justified to the public in order to justify this invasion of privacy and so maintain public confidence in their use. The Tribunal considers that in all the circumstances, the public interest falls on the side of disclosure in this case, so as to allow for debate about the strategic use of the cameras and the reasons for their deployment.

25. Having considered all the relevant factors and weighed them into the public interest balancing exercise, the Tribunal had reached a different judgment from that of the [Commissioner]. The Tribunal finds that the public interest in disclosure outweighs the public interest in maintaining the exemptions in the circumstances of this case and accordingly allows the appeal and makes a substituted Decision Notice.”

12. In para. 13 of the Decision the First-tier Tribunal said this in relation to s.24:

“Ms Fenwick suggested in her statement that [the Authority] still wished to rely on the exemption under s.24(1) FOIA, however this exemption had specifically not been considered by [the Commissioner] in reaching his decision and it had not been claimed by [the Authority] as a late exemption in filing its Reply. Accordingly, the Tribunal decided that it was not appropriate for it to consider her argument in this regard because the other parties had not been given due notice of it.”

13. The Authority sought permission to appeal to the Upper Tribunal on 5 grounds. Ground 1 is that the First-tier Tribunal erred in law in refusing or failing to consider the exemption under s.24 of FOIA. Grounds 2 to 5 contend that the First-tier Tribunal went wrong in law in relation to the way in which it dealt with the exemption under s.31.

14. The chairman of the First-tier Tribunal gave permission to appeal in respect of all the grounds of appeal.

15. In giving procedural directions for the appeal on 5 July 2011, I made the following observations:

“My provisional view is that Ground of Appeal 1 is well founded. If that is the case, the issues whether s.24 of the 2000 Act is engaged, and if so the public interest test in respect of that provision, are going to have to be determined, either by the same First-tier Tribunal, a fresh First-tier Tribunal, or the Upper Tribunal.

If the appeal were also to succeed in relation to any or all of Grounds 2 to 5, the normal procedure would be for the issues arising in relation to section 31 of the 2000 Act to be remitted for redetermination by a fresh First-tier Tribunal. If that were to happen, it would plainly be sensible for that First-tier Tribunal to determine the s.24 issues at the same time.

However, as the appeal was decided by the First-tier Tribunal on the papers, it would presumably be open to the Upper Tribunal to re-make the First-tier Tribunal’s decision in respect of all the issues which require redetermination, including the s.24 issues.

The parties are requested, in their submissions directed below, to indicate what they consider the preferable procedure to be, in the event of the grounds of appeal succeeding wholly or partially.”

16. In their written submissions the Commissioner and Mr Mathieson accept that the First-tier Tribunal erred in law in not giving any consideration to the exemption in s.24. I agree. In my judgment the Authority had made it plain that it wished to rely on s.24, and if the First-tier Tribunal was minded to decide against the Authority on s.31, considered alone, it should have invited the parties to produce any additional evidence and make any additional submissions which they wished to rely on in relation to s.24, and made the necessary findings, taking into account that exemption as well.

17. As regards s.31, Mr Mathieson submits that the First-tier Tribunal did not go wrong in law, but the Commissioner submits that it did.

18. I think that the parties are at one in submitting that the Upper Tribunal should, in addition, not only decide whether the First-tier Tribunal also went wrong in law in relation to s.31, but should also in so far as necessary re-make the First-tier Tribunal’s decision in relation to sections 24 and (so far as necessary) 31, making all necessary findings of fact, so that the Upper Tribunal makes the outcome decision as to whether the requested information must be disclosed or not. The Authority submits that there should be an oral hearing before the Upper Tribunal,  and that the evidence and submissions in relation to all the issues which may arise should so far as possible be dealt with at that hearing.

19. However, notwithstanding the (perhaps ill-advised) indication which I gave  at the time of giving procedural directions (see para. 15 above), there seems to me to be a very substantial objection to my adopting that course of action. This is that factual issues arising in the course of deciding whether either or both of these exemptions is engaged, and the weighing of the competing public interest considerations arising, are matters in relation to which a First-tier Tribunal would be likely to find the assistance of the lay tribunal members invaluable. That is no doubt one (and possibly the most important) reason why the Practice Statement by the Senior President of Tribunals dated 21 August 2009, in relation to the composition of General Regulatory Chamber First-tier Tribunals, provides that a First-tier Tribunal disposing of an information rights case must comprise “one judge and two other members where each other member has substantial experience of data protection or freedom of information (including environmental information) rights.” However, there is no power for an Upper Tribunal Judge to sit with additional such members on hearing an appeal in relation to information rights. The Senior President’s Practice Statement dated 1 October 2010 relating to the composition of a tribunal deciding an appeal to the Administrative Appeals Chamber of the Upper Tribunal provides that, save in specified cases, the appeal is to be decided by one judge. One of the exceptions is the determination of an appeal or preliminary issue transferred from the First-tier Tribunal to the Upper Tribunal under Rule 19(3) of the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009, where the Senior President or Chamber President consider it appropriate that the matter be decided by one judge and two other members. Under Rule 19(3) the President of the GRC may, with the concurrence of the President of the AAC, transfer an information rights appeal to the Upper Tribunal. However, there is no power for a Upper Tribunal Judge hearing an appeal from a First-tier Tribunal in relation to an information rights case to sit with additional members. The rationale for that is no doubt that such appeals can only be made on a point of law. Under s.12 of the Tribunals, Courts and Enforcement Act 2007 the Upper Tribunal has power, where it sets aside the First-tier Tribunal’s decision, to re-make the First-tier Tribunal’s decision and to make such findings of fact as it considers appropriate for that purpose. However, factual issues as to whether one of the exemptions is engaged, and where the balance of the public interest lies, are ones to which the composition of a First-tier Tribunal is particularly appropriate. Where such issues arise it is unlikely that it will be appropriate for an Upper Tribunal judge, sitting alone, to re-make the First-tier Tribunal’s decision.

20. If, as I think, it is not appropriate for me to decide the factual issues which will arise under s.24, the only question is then whether it is necessary or appropriate for me to decide anything in relation to s.31. As I have said, the Authority and the Commissioner submit that the First-tier Tribunal did go wrong in law in relation to that, but Mr Mathieson submits that it did not.

21. The First-tier Tribunal’s outcome decision was that the information should be disclosed. The new First-tier Tribunal’s decision in relation to s.24 may render that outcome decision wrong. It is in my judgment not necessary or appropriate for me to do anything more than to set the First-tier Tribunal’s decision aside and remit Mr Mathieson’s appeal against the Commissioner’s decision to be redetermined by an entirely differently constituted First-tier Tribunal. Even if I were to consider whether the First-tier Tribunal also went wrong in relation to s.31, and were to decide that it did not, it would in my view be inappropriate for me to direct that the new First-tier Tribunal adopt all or any of the previous First-tier Tribunal’s findings and conclusions in relation to s.31. First, the evidence which the Authority adduces before the new First-tier Tribunal on the issue whether exemption is required for the purpose of safeguarding national security is likely also to bear on whether disclosure would, or would be likely to prejudice, the prevention or detection of crime or the apprehension or prosecution of offenders. The two are likely to be closely related factually, as evidenced by the way in which the matter was put by the Authority in its initial rejection letter (see para. 3 above). It would be artificial and wrong for a fresh First-tier Tribunal to be able (indeed required) to hear fresh evidence in relation to s.24, but not to be able to consider how that affects the findings under s.31. Secondly, it now appears to be established that the public interest in maintaining two or more exemptions must be aggregated, when weighing it against the public interest in having disclosure: Office of Communications v IC [2011] EUECJ C-71/10 (28 July 2011). If, therefore, the new First-tier Tribunal finds that s.24 is engaged, the previous First-tier Tribunal will necessarily also have erred in law in relation to s. 31 in that it will not have weighed the public interests properly. Moreover, I do not think that there are any discrete issues of law which have been argued under s.31 which it will be useful for me to decide in order to give directions to the new First-tier Tribunal. The only possible such issue, it seems to me, is whether the data captured by an APNR camera constitutes “personal data” within the meaning of the Data Protection Act 1998. That is relevant in relation to Mr Mathieson’s contention that disclosure of precise locations of cameras would assist members of the public to exercise their rights under the 1998 Act. However, (i) it seems to me that even that may raise some factual issues which it may be more appropriate for a new First-tier Tribunal to decide and (ii) the new First-tier Tribunal may find it unnecessary to decide it if (for example), as the Authority and the Commissioner will apparently ask it to do, it rejects Mr Mathieson’s submission that people are able better to exercise their rights under the 1998 Act if they know the location of cameras.

22. In my judgment the appropriate course is for me to make the decision set out in paragraph 1 above. The new First-tier Tribunal will reconsider the appeal entirely afresh – i.e. without being bound by any of the findings of fact made by the previous First-tier Tribunal.

Charles Turnbull

Judge of the Upper Tribunal

1 February 2012