Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  GIA/115/2015

ADMINISTRATIVE APPEALS CHAMBER

The Decision of the Upper Tribunal is that the appeal on the preliminary issue is dismissed.

REASONS

Background

1.      There are two appeals from the same decision of the First-tier Tribunal (FTT).  The Upper Tribunal has throughout dealt with them together.

2.      This appeal, GIA/115/2015, is the requester’s (Mr Lubicz’s) notice of appeal against the decision of the First-tier Tribunal (“FTT”) following the grant of permission to appeal by Judge Dhanji on 9 December 2014.

3.      There is also GIA/118/2015.  It is an application for permission to appeal by the public authority (“the College”) against the same FTT decision, following the refusal of permission to appeal by Judge Dhanji, also on 9 December 2014.

4.      The appeals concern a request under the Freedom of Information Act 2000 (FOIA) for information about the job titles and salary ranges of all staff employed by the College who were paid over £100,000. It is common ground that there were 125 such staff, 110 of whom were academic staff and 15 of whom were professional services staff (“PSS”). 

5.      The College provided some information which did not satisfy the request.  Mr Lubicz complained to the Information Commissioner. In resisting the complaint the College relied on the exemptions from disclosure under sections 40 and 43(2) FOIA.  On 17 February 2014 the Commissioner upheld the complaint and required the College to disclose the requested information. 

6.      The College appealed to the First-tier Tribunal.  The parties to the appeal were the College and the Commissioner. In accordance with his normal practice, on 24 March 2014 the Commissioner wrote to Mr Lubicz to advise him of the fact that there had been an appeal.  The letter informed Mr Lubicz that if he required further information he should contact the FTT and provided him with contact details. The letter continued:

“The First-tier Tribunal (Information Rights) website contains details of current appeals and information about stages of appeals, including hearing dates. As the Respondent the Commissioner will not be able to keep you informed about further developments on the appeal.

If you wish to be joined as a party to the appeal you should contact the First-tier Tribunal (Information Rights) using the details above... It will be a matter for the Tribunal whether to join a person to an appeal.”

7.      In response to an enquiry from Mr Lubicz, on 27 March 2014 the Commissioner wrote to Mr Lubicz:

“Unless you apply to be joined to the appeal, I confirm that the only two parties will be the ICO and Kings College London.”

8.      Mr Lubicz did not apply to be joined as a party to the appeal.  Because he was not a party, Mr Lubicz was not involved in any communications between the parties and the FTT prior to the hearing and he did not attend the hearing.

9.       The Commissioner’s initial position in the appeal had been to defend his decision in its entirety.  On or around 30 June 2014 the College filed and served six witness statements along with exhibits.  On 14 July 2014 Counsel for the College signed off his Skeleton Argument. This was drafted on the clear understanding that the question of the potential disclosure of academic salaries was very much a live issue before the FTT.  However, in the meantime and having considered the evidence served by the College, the Commissioner changed his position. He decided to concede the appeal in relation to the academic staff, but not the PSS.  This was first communicated to the FTT and the College on 15 July 2014, by means of the Commissioner’s skeleton argument. 

10.   On 21 and 22 July 2014 the FTT hearing took place. Mr Lubicz was not present. As he was not a party to the appeal, the Skeleton Arguments had not been copied to him. The FTT accepted the Commissioner’s concession regarding the academic staff.  The hearing continued in relation to the PSS only. On 30 September 2014 the FTT decided to allow the appeal in part: the College was required to disclose the disputed information in relation to 8 PSS but not in relation to the other 7. 

11.   After receipt of the FTT’s decision, on 23 October 2014 Mr Lubicz applied to the FTT to be joined as a party to the proceedings.  On 4 November 2014 the FTT’s Registrar joined him as a party and Judge Warren confirmed that decision on 2 December 2014.

12.   Mr Lubicz applied to the FTT for permission to appeal.  He appealed in relation to the treatment of the issue concerning the academic staff.  In summary he said that the Commissioner should not have made the concession, that the evidence on which it was made should have been made public or made available to him, and that the FTT should not have accepted the concession at least without giving him an opportunity to comment on it.  This is the procedural issue with which this appeal is concerned. He also appealed in relation to the 8 PSS in respect of whom the FTT had allowed the College’s appeal.

13.   The College applied for permission to appeal against the decision by the FTT that the College should disclose the information in relation to the 7 PSS.

14.   On 9 December 2014 FTT Judge Dhanji ruled on both applications. She refused the College permission to appeal.  She gave Mr Lubicz permission to appeal, although she expressed considerable doubt about the merits of his appeal.  The FTT’s decision was stayed pending the outcome of that appeal, and by order of Upper Tribunal Judge Wikeley has remained stayed since then. The College renewed its application for permission to appeal to the Upper Tribunal.

15.   Mr Lubicz’s notice of appeal and the College’s application for permission have been the subject of a number of directions, originally by Upper Tribunal Judge Wikeley and more recently by me.  On 31 March 2015 Judge Wikeley expressed his provisional view that the FTT’s decision should be set aside on the procedural ground. He invited the parties’ submissions on that issue on the basis that, if the parties were agreed, he would remit the matter to a differently constituted FTT for a fresh hearing and there would be no need for the Upper tribunal to consider the College’s application for permission to appeal or determine that appeal (if permission was granted) or the remainder of Mr Lubicz’s appeal.

16.   The Commissioner and Mr Lubicz agreed to the proposal but the College objected on the basis that there was no error of law in the FTT having proceeded as it did.  Subsequently the Commissioner reviewed his position in the light of the objection submission by the College and agreed with the College on the procedural issue.  I directed an oral hearing of the procedural issue as a preliminary issue. If Mr Lubicz succeeded on that issue, the remaining issues would not need to be considered by the Upper Tribunal. 

17.   The oral hearing of the procedural issue took place before me at the Rolls Building in London on 10 September.  Each of the parties had prepared skeleton arguments.  The Commissoner’s solicitors had prepared bundles of documents and authorities.  Mr Lubicz was represented at this hearing by Mr Davies who is not a lawyer.  The College was represented by Mr T Pitt-Payne QC and the Commissioner was represented by Ms S Blackwood of counsel.  I am grateful to all of them for their helpful submissions.

The submissions

18.   On behalf of Mr Lubicz, Mr Davies submits that, once the Commissioner had conceded a large part of the appeal, the FTT should have given Mr Lubicz an opportunity to make representations. He says that it was irrational and unfair for the FTT to have failed to do this. He says that the tribunal was under a duty to keep the fairness of the proceedings under review and relies on the Upper tribunal decision in KO v Secretary of State for Work and Pensions [2013] UKUT 544 (AAC). He also refers to a guidance note issued by the FTT (General Regulatory Chamber) as to how to deal with consent orders and which provides that a non-party requestor be given an opportunity to make representations before the FTT approves a consent order. He refers to the observations of the FTT (GRC) President, Judge Warren, when he approved the Registrar’s order to join Mr Lubicz as a party in order to appeal.  In particular Judge Warren expressed the view that the tribunal should not take a punitive approach to decisions made in good faith and that the alternative would be to encourage every potential third party to join in every single case from the outset to avoid the risk of being excluded later.

19.   Mr Davies does not submit that in every case that a non-party requestor should be given the opportunity to make representations where a party changes position, but he says that in every case the FTT is required to consider whether to do so and provide reasons if it decides not to do so.  He says that in this case the FTT did not apply its mind to that question and that is itself an error of law.

20.   Moreover he submits that in this case fairness required that he be given such an opportunity, taking into account the following factors:

a.  His reasons for not asking to be joined as a party: The Commissioner’s decision was favourable to him and he assumed that there was no need for him to join the appeal. He had no reason to expect that the Commissioner would abandon his arguments or that that was permissible. The risks of not being joined were not explained to him. The costs of travel to the hearing were disproportionate and, as an unrepresented party, he felt that he would have been at a disadvantage.

b.  The scale of the concession: it related to 88% of the 125 staff with which the request was concerned. 

c.   The consequence of accepting the concession without obtaining Mr Lubicz’s representations: Significant information has not been disclosed without any person having had the opportunity to test the basis of that concession.  Moreover, it sets a precedent regarding salary information.

21.   Mr Lubicz also submits that the FTT should not have accepted the Commissioner’s concession without itself considering the basis on which it was made and deciding whether it was appropriate.  The consequence of the FTT accepting the concession without considering its merits is that he does not know the basis on which it has been decided that the academic salaries should not be disclosed.  No reasons have been given by either the Commissioner or the FTT. He submits that it is particularly important to know on what basis the FTT accepted the concession in this case because the FTT considered that much of the evidence provided by the College was unsatisfactory.

22.   Mr Pitt-Payne on behalf of the College submits that Mr Lubicz chose not to participate in the appeal without inquiring into the implications of not being a party. His assumption that the Commissioner would defend the decision notice was not warranted. A reasonable person could anticipate that a party might change its position during the course of proceedings. He emphasises the role of the Commissioner as both a public authority and a regulator and, in that context, the importance of not being inhibited in making concessions where appropriate. 

23.   Mr Pitt-Payne lays emphasis on the appeal being concerned with a matter of case management. Different tribunals will approach case management in different ways. It would not have been wrong for a tribunal to invite Mr Lubicz to make representations nor to scrutinise the basis of the concession, but it was not wrong not to do so. Inviting Mr Lubicz to make representations or joining him to the proceedings would almost certainly have necessitated an adjournment with consequent increased costs and delay.  Those are factors to be taken into account in accordance with rule 2 of the Tribunal Procedure Rules and the overriding objective.  Mr Pitt-Payne distinguishes KO. That case was concerned with a party who was not in attendance but whose credibility was impugned.  It was quite different to the present case. In this case, there was no indication from Mr Lubicz that his decision not to participate was conditional in any way.

24.   In relation to the FTT’s consent order guidance, Mr Pitt-Payne submits that there is a difference between cases in which the whole appeal is conceded (with which the guidance is concerned) and cases such as the present where there is a partial concession in an appeal that proceeds to a hearing and the concession is placed before the FTT. 

25.   Mr Pitt-Payne refers to the background to and basis of the concession in this case. The Commissioner had originally rejected the College’s reasons for claiming that the information requested was exempt because he took the view that the College had not produced sufficient evidence to make out its case (see the Decision Notice at paragraph 45).  The concession was made after the College provided a large amount of additional evidence. As a result the Commissioner’s skeleton argument for the FTT hearing said as follows:

“17. Since the Commissioner issued the DN, and the pleading in this case were served, the Appellant has served six witness statements dealing with the matters in question in considerable detail.  Having considered the evidence provided by the Appellant the Commissioner considers that, on the specific facts of this case, the Appellant has now provided sufficient evidence to establish that there would be a real and significant risk of prejudice to the Appellant’s commercial interests if the Disputed Information relating to the academic staff were disclosed.  Furthermore, the Commissioner considers that, in this instance, the evidence provided by the Appellant shows that the public interest in maintaining the exemption would outweigh the public interest in disclosure of the Disputed Information relating to the academic staff.  The Commissioner therefore accepts that the exemption under section 43(2) of FOIA applies to this sub-section of the Disputed Information.

  18. However, the Commissioner is keen to highlight that its conclusions in this case are particularly fact sensitive and reflect the specific circumstances of the Appellant, as set out in its witness statements.  It is not the Commissioner’s position that salary details of senior academic staff should generally be exempt from disclosure under sections 43(2) or 40 of GOIA, particular if such staff also have senior management roles, and it considers that the application of these provisions will turn on the individual circumstances of each case and the evidence provided by the Higher Education Institute in question.”

26.   At paragraph 16 of its reasons the FTT referred to all the evidence which had been submitted (462 pages and some additional material) and said that it had considered all the material before it.  Therefore, Mr Pitt-Payne submitted, this was not a case of the FTT being presented with an unexplained concession.   As the FTT noted in its decision (paragraph 21), much of the College’s evidence concerned potential disclosure of the information relating to the College’s academic staff.  As a result of the concession the FTT did not need to address that evidence in the decision, but it had read it.

27.   Mr Pitt-Payne also refers to the wider implications of the appeal succeeding on the procedural issue, in terms of increased costs and delay and that this risks deterring the Commissioner from making concessions that ought properly to be made.

28.   Ms Blackwood, for the Commissioner, agrees with Mr Pitt-Payne’s submissions.  She makes the following additional points.

29.   First, she emphasises the circumstances in which the Commissioner’s concession was made.  The Commissioner’s decision which was the subject of the appeal was, first, that disclosure of the information did engage the possibility of prejudice to commercial interests (Decision Notice paragraph 29), but that the College had not provided sufficient evidence to establish the likelihood of prejudice (paragraph 45).  The evidence provided by the College prior to the FTT hearing satisfied the Commissioner of the likelihood of prejudice arising from disclosure of information relating to the academic staff.  The Commissioner did not take the same view regarding non-academic staff.  The FTT’s concerns as to the quality of evidence related to the non-academic staff and so do not call into question the basis of the Commissioner’s concession regarding academic staff. 

30.   Second, she points to the Commissioner’s skeleton argument for the FTT at paragraph 18 where he said that the concession was specific to that case. This was recorded by the FTT at paragraph 18 of its reasons.

31.   Third she emphasises the role of the Commissioner as a regulator acting in the public interest.  The Commissioner must keep the evidence under review. This applies before the hearing and even at the hearing (for instance following cross-examination of a witness). 

32.   Fourth, she submits that the FTT’s consent order guidance is not relevant to the making of concessions which do not dispose of an appeal.  In the latter situation it can be inferred that an FTT does not blindly accept a concession.  It has a decision to make as to how to dispose of an appeal, and it is not constrained to accept a concession.

33.   In one respect Ms Blackwood parted company with Mr Pitt-Payne.  Unlike him, she said that it is necessary for the FTT to turn its mind to the question whether to invite a requestor to make representations where a concession is made but she said that it should not be inferred that the FTT did not do so in this case simply because it has not expressly said so. 

Discussion

34.   This appeal is concerned with procedural fairness and access to justice. Rule 2 of the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules  2009 embodies these principles.

35.   Rule 2 does not dictate any particular outcome. The provisions of rule 2(2) involve the exercise of the Tribunal’s judgment.  The Tribunal’s duty under rule 2 applies throughout the proceedings (see rule 2(3)(a)). 

36.   The FTT has broad case management powers under its Rules. By Rule 5(1) it may regulate its own procedure, and the powers in rule 5(3) are not exhaustive. One specific power is that in rule 5(3)(d) by which the FTT may permit a non-party to provide documents, information or submissions to the Tribunal or a party. In addition, the tribunal has specific power under rule 9 to add a party and under rule 33(2) it may permit or request a non-party to attend and take part in a hearing or make written submissions.  The FTT may consent to withdrawal of a case or part of it (rule 17) and make consent orders (rule 37). All of these powers must be exercised in the light of rule 2.

a) Whether it was unfair not to invite Mr Lubicz to comment on the concession

37.   Mr Lubicz (through Mr Davies) accepts that the FTT is not required to allow a non-party requestor an opportunity to comment or be joined to the proceedings in all cases where a concession is made or an unexpected development occurs. He does so correctly.  The Rules impose no such requirement and what fairness requires will depend on the circumstances of each case, taking into account the various factors listed in rule 2.

38.   In the absence of a general requirement to invite the requestor to make submissions on a concession by the Commssioner, the question is whether in the particular circumstances of this case it was unfair of the FTT not to invite Mr Lubicz to do so.  For the reasons that follow, I conclude that it was not unfair.

39.   First, Mr Lubicz chose not to participate in the appeal.  He says that he did not understand the implications of not asking to be a party. But the Commissioner explained this briefly in the letter of 24 March and the email of 27 March. It was clear from these that there might be developments in the appeal which Mr Lubicz would not be told about unless he was joined to the appeal. It was obvious that there was the possibility of developments which might have affected the outcome adversely to his interests. Even if he had not realised that the Commissioner might concede all or a substantial part of the appeal, it would have been obvious to Mr Lubicz (at least, if he had turned his mind to the issue) that the Commissioner might choose to defend the appeal in a way which Mr Lubicz disagreed with and which might put at risk the decision which Mr Lubicz thought the Commissioner would defend. It should also have been obvious to him that further evidence might be served which might put a different light on things.  

40.   Because Mr Lubicz was not a party to the appeal he had no specific right under the FTT Rules to attend the hearing nor for his non-attendance to be addressed specifically by the FTT under Rule 33.  This is not a mere technicality (compare the position in IICUS v Information Commissioner, BIS and Ray [2011] UKUT 205).  Mr Lubicz had been invited to request to be made a party, and he had chosen not to do so.  He had been told that the Commissioner that, unless he applied to be joined, the only two parties would be the Commissioner and the College.  He did not explain his choice nor make it conditional in any way.

41.   Second, it is apparent from the chronology at paragraphs 9 and 10 above that if, following the Commissioner’s concession, the FTT had invited Mr Lubicz to make representations or be joined as a party and attend the hearing (or consider doing so), that would almost certainly have necessitated an adjournment of the hearing with consequent delay in the proceedings and costs to the parties and the Tribunal.  There is no suggestion that either party was late in their compliance with case management directions

42.   Third, I do not consider that the FTT’s guidance on consent orders, which Mr Lubicz relies upon, assists him.  The guidance is not binding on me. It is no more than a statement by the FTT as to how it deals with consent orders.  It is not issued under any statutory authority and it does not state who produced the guidance. At best, it might be taken as some indication of what the FTT (under the authority of an unidentified person) considers to be a fair procedure in the circumstances to which it applies.  In any event it does not apply to the circumstances of this case.  I will explain why.

43.   The relevant paragraphs of the guidance note are:

“2. Sometimes, if an agreement is reached between the parties, there is no need for a consent order.  For example, if a public authority agrees to disclose information after all, the appellant may simply give notice of withdrawal to the tribunal.  The tribunal will then usually consent to the withdrawal.  A party who has withdrawn their case may apply for reinstatement within 28 days. 

3. Sometimes, however, an order of the tribunal is needed, for example, where it is proposed to substitute a new decision notice for that issued by the information commissioner.  If this happens, the parties should agree the wording of a new decision notice and insert it in paragraph 2 of the attached template.  They should then write to the Tribunal asking for the order to be made.

4. If both the person who requested the information and the public authority are parties to the appeal, the proposed order will then be placed before the Tribunal.  If either one of these is not a party, Tribunal staff will first send them the attached letter.  This gives notice of the proposed order and enquires whether they wish to be joined as a party. 

5. If the non party is content or does not reply then the proposed order will be placed before a Tribunal.  If there is an application to join the appeal as a party then this will be considered by a Judge.  If the Judge grants that application then it will not be possible to proceed under Rule 37 unless a new form of words is agreed by the new and existing parties.” 

44.   A consent order disposes of proceedings.  Rule 37(2) of the FTT Rules permits the FTT to approve a consent order disposing of an entire appeal without a hearing and without providing reasons.  This means that it could do so without having any evidence enabling it to assess the underlying merits of the issues. It enables the non-party who has an interest in the appeal to identify objections to the consent order which may not otherwise be picked up by the FTT.

45.   The position is different where a concession is made which does not dispose of the proceedings. In such cases, the appeal will proceed to a final determination by the FTT for which purposes it will have seen (and possibly heard) the evidence and submissions of the parties. The FTT will be in a position to understand the context of a concession and, if the concession appears doubtful on its face, it is open to the FTT to refuse to accept it without at least some further explanation. Significantly, even though a concession is made, it remains the task of the FTT determining an appeal under section 58 FOIA to decide whether the decision notice is in accordance with the law or whether the Commissioner should have exercised his discretion differently.  

46.   The present case illustrates this.  The Commissioner explained to the FTT that the concession was made in the light of the evidence served by the College.  The FTT had considered all the material provided (including that relating to the conceded information), and went on to set out the circumstances of the Commissioner’s concession.  The FTT was well-placed to detect and guard against either procedural or substantive unfairness having seen all the evidence which prompted the concession.  The FTT could have explored the issues at the hearing if it had thought it appropriate to do so, without any need for submissions from Mr Lubicz, and it was also open to the FTT not to do so.

47.   When Judge Warren confirmed that Mr Lubicz should be joined as a party he noted that the guidance note applies to a concession of the whole of a case.  His brief observations did not address the above points.  He had not heard argument on the procedural issue and his views on its merits are not binding on me.

48.   Fourth, I do not agree with Mr Lubicz that the scale of the concession of itself meant that he should have been invited to comment.  The FTT was fully aware of the scale of the concession but that did not appear to cause it any concern.  There is no basis for concluding that the requirements of fairness are different simply because of the scale of the concession.

49.   Fifth, I do not accept Mr Lubicz’s submissions as to the consequence of not inviting him to make representations.  The Commissioner and the FTT made it very clear that the concession did not set a precedent. It was a decision made by the Commissioner on the particular facts of the case in the light of the evidence.

50.   Sixth, I take into account the wider repercussions if I were to find that the FTT acted unfairly in this case. It would create considerable uncertainty for tribunals and parties.  It would be difficult to identify any principled basis for imposing an obligation to contact a requester. What would trigger that obligation in any particular case?  What about unforeseen developments other than concessions? By what criteria does the FTT decide whether any development was or should have been foreseen by the requestor?  Tribunals would not know where to draw the line.  The risk is that these uncertainties would lead to tribunals inviting submissions from requestors in a wide range of circumstances, in many cases involving disproportionate costs and delay.  Mr Lubicz’s submission that these concerns can be addressed by appropriate case management directions and timely submissions ignores the realities of litigation.  Case management directions which incorporate sufficient time to enable a non-party to make submissions or join the appeal in the event of a concession would necessitate a protracted timetable. Even with such directions, there will be cases where a late development leads to a party reviewing its position and concession being made shortly before a hearing or during a hearing (for instance as a result of evidence given under cross-examination). 

51.   It is relevant in this respect to take into account that the Commissioner is unlike other parties. He is an independent regulator and has a role in assisting in or ensuring the proper administration of the FOIA regime.  As such, his role in tribunal proceedings is not to defend his decisions come what may.  He keeps the merits of a decision under review and makes appropriate concessions including where a concession is called for shortly before or during a hearing. This Tribunal should be wary of placing procedural hurdles or costs in the way of the proper exercise of that function.

52.   My conclusion in this case does not mean that there will never be cases in which fairness would require a non-party requester to be invited to make comments or join the proceedings where a concession by a party is made or in the light of other developments.  It will depend on the circumstances of the case. It might be different, for instance, where a development touches more directly on the personal interests of the non-party requester.

b) Was the FTT required to consider whether to invite Mr Lubicz to make submissions?

53.   Mr Lubicz submits that at the very least the FTT should have considered whether to invite him to comment and should have given reasons for not doing so. 

54.   In KO v SSWP [2013] UKUT 544 (AAC) the appellant had not been present at the FTT hearing.  The Upper Tribunal decided that, even though it may not have been apparent at the outset of the hearing, an issue as to the appellant’s credibility arose in the course of the hearing. This called for the FTT to review its previous decision whether to proceed in her absence and give reasons. The circumstances of the present case did not call for the FTT to consider whether or not to invite Mr Lubicz to make submissions or join the proceedings  For the reasons already explained, the FTT was entitled to approach the hearing on the basis that he did not want to participate in the appeal, and concession did not change that.  

55.   In any event, even if I am wrong in this respect and the FTT should have considered the issue and given reasons, I would not set aside the decision on that basis. The procedure adopted by the FTT was not unfair. It would be quite wrong to set aside the decision. This would have significant consequences in terms of cost and delay. The FTT has already given a full and reasoned decision on the merits of the appeal following a lengthy hearing.  If the FTT has made an error of substance (which is yet to be determined by me), that may lead to the decision being set aside. But it should not be set aside on the basis of an error which, in the circumstances of this case, has caused no unfairness. 

c) Reasons for accepting the concession

56.   I have already found that the FTT considered the evidence which led to the Commissioner making the concession.  Mr Lubicz was not entitled to reasons for the FTT’s acceptance of the concession.  It was apparent that it was because the College had provided satisfactory evidence of risk to commercial interests.  Had the FTT thought otherwise, it would have said so.  That he does not know more is a consequence of his having decided not to participate in the proceedings.

Conclusion

57.   For the above reasons, Mr Lubicz’s appeal on the preliminary issue is dismissed.  The Tribunal must proceed to determine the second part of Mr Lubicz’s appeal and the College’s application for permission to appeal (and, if permission is given, the appeal itself).   Case Management Directions as to the future conduct of the future conduct of these appeals are given in a separate Notice.

Signed on the original                                           Kate Markus QC

on 15 October 2015 Judge of the Upper Tribunal