Upper Tribunal (Administrative Appeals Chamber)

Commissioner of the Police of the Metropolis v 1. The Information Commissioner; 2. Martin Rosenbaum (#) [2021] UKUT 5 (AAC) (7 January 2021)

1. The decision of the Upper Tribunal in Corderoy v Information Commissioner [2017] UKUT 495 (AAC);[2018] AACR 19 at paragraphs 55-57 and 62 was inconsistent with the decision in APPGER v Information Commissioner and Foreign and Commonwealth Office [2015] UKUT 377 (AAC); [2016] AACR 5 and is wrong in law.

2. In deciding for the purposes of section 23(5) Freedom of Information Act that information revealed by a confirmation or denial did not relate to a section 23(3) body, the FTT wrongly applied Corderoy and added an unlawful gloss to the statutory words by asking whether Parliament intended that the absolute exemption should apply. In doing so the FTT made a series of further errors.

3. The FTT wrongly concluded that section 23(5) did not apply to information which was in the public domain but had not been officially confirmed, and in any event erred in concluding that the information in the present case was in the public domain. The FTT's erroroneous approach as to what was in the public domain also affected its decisions that the qualified exemptions relied on did not apply.

4. The Upper Tribunal remade the decision to the effect that pursuant to section 23(5) the duty to confirm or deny did not arise.

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