Deborah Bryce v Information Commissioner

1. Having considered the matter afresh pursuant to Rule 4(3) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, I have decided that there is no jurisdiction for this Tribunal to consider this appeal, and I confirm that this appeal is struck out under Rule 8(2)(a) for want of jurisdiction. REASONS

2. The Tribunal received Notice of Appeal from the Appellant on 26th March 2024.

3. The Appellant has provided the Tribunal with correspondence from the Information Commissioner (“the Commissioner”), dated 28th February 2024 (ICO case reference: IC-284196-K2B8), which they suggest is a decision of the Commissioner. However, the letter sets out that the Information Commissioner was dismissing the Appellant’s complaint under section 50(2)(c) of the Freedom of Information Act 2000 (“FOIA”). Section 50(2) FOIA reads as follows: 50(2) “On receiving an application under this section, the Commissioner shall make a decision unless it appears to him – (a) that the complainant has not exhausted any complaints procedure which is provided by the public authority in conformity with the code of practice under section 45, (b) that there has been undue delay in making the application, (c) that the application is frivolous or vexatious, or (d) that the application has been withdrawn or abandoned.”

4. The wording of the Act is clear to state that the Commissioner “shall make a decision unless it appears to him [that one of the exceptions under section 50(2) apply]”. In this instance, the Commissioner has relied upon section 50(2)(c) to dismiss the Appellant’s complaint as being frivolous, and a decision was consequently not made. However, in compliance with section 50(3)(a) the Commissioner notified the Appellant that a decision had not been made and the grounds for not doing so were set out in some detail within the letter of 28th February 2024. A decision notice was consequently never served upon the Appellant under section 50(3)(b).

5. Section 57 FOIA deals with appeals against notices served under part IV of the Act. It stipulates under section 57(1) that – “Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice.”

6. For there to be an appeal under this section, the Commissioner would need to have served a decision notice upon the Appellant. However, for the reasons set out above, this is lacking in this instance. The Tribunal therefore has no power to deal with the present matter. As stated by the Commissioner in the letter of 28th February, any challenge to the dismissal of the complaint would be by way of judicial review and not by way of appeal to this Tribunal. Whilst the Appellant has referred to section 14 FOIA in their response to the Registrar’s decision of 1st August 2024, that section deals specifically with public authorities not being obliged to respond to vexatious or repeated requests. It does not apply to applications made to the Commissioner, which are governed specifically by section 50 FOIA.

7. The Tribunal has no jurisdiction to deal with this matter, and the Registrar was correct to strike out the appeal under Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. The case is therefore struck out under that Rule 8(2)(a). SignedJudge Armstrong-Holmes Date:20th March 2025