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Neutral Citation Number:	2015 UKUT 47 AAC
Reported Number:
File Number:	GIA 4267 2014
Appellant:	McInerney
Respondent:	Information Commissioner and the Department of Education
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	29/01/2015
Date Added:	26/02/2015
Main Category:	Information rights
Main Subcategory:	Information rights: practice and procedure
Secondary Category:	Tribunal procedure and practice (including UT)
Secondary Subcategory:	judicial review
Notes:	Reported as [2015] AACR 32 Freedom of information – whether late reliance on sections 12 and 14 permissible – broad approach to “request” under section 14 FOIA Ms McInerney applied to the Department for Education under the Freedom of Information Act 2000 (FOIA) for information about the applications it had received for permission to set up Free Schools. Initially the Department relied for its refusal on section 36(2)(c) of FOIA, which deals with prejudice to the effective conduct of public affairs, and confirmed its response following an internal review. Ms McInerney applied to the Information Commissioner who decided that the balance of the public interest favoured disclosure. The Department appealed to the First-tier Tribunal (F-tT) against that decision relying for the first time upon sections 12, 14 and 43. In its decision the F-tT referred to previous decisions of the Upper Tribunal (UT) which had held that public authorities were allowed to raise exemptions, or exclusions, which they had not previously relied upon, subject to the case management powers of the tribunal: Department for the Environment, Food and Rural Affairs v Information Commissioner and Birkett [2011] UKUT 39 (AAC) and Information Commissioner v Home Office [2011] UKUT 17 (AAC); [2012] AACR 32. The Information Commissioner had submitted to the F-tT that these decisions of the UT did not apply as sections 12 and 14 were in Part I of FOIA and were not exemptions in Part II. The tribunal had rejected that argument and upheld the appeal under section 14, which deals with vexatious requests. Ms McInerney appealed and among the issues before the UT were whether a public authority may rely for the first time before the F-tT on provisions of FOIA and whether a public authority was obliged to consider severing part of an otherwise vexatious request. Held, dismissing the appeal, that: 1. late reliance was not limited to exemptions under Part II of FOIA and late reliance on sections 12 and 14 was permissible, subject to the possible exercise of the tribunal’s case management powers. If a public authority relied on section 12 the tribunal would take the same approach as the Commissioner. As a practical matter, late reliance may effectively be forced on a public authority by the course of events (paragraphs 34 to 41); 2. the tribunal had evidence from the Department of the effects of compliance which had not been challenged and it was entitled to find on that basis that compliance would be troublesome to the Department to the point where the request could properly be characterised as vexatious (paragraph 48); 3. a broad approach should be taken when identifying what constitutes the “request” for the purposes of applying section 14. The form in which a request is presented should not dictate how the section is applied. The public authority, and the F-tT on appeal, should take an overall view of the circumstances as a whole to decide whether what was before it, whether presented as a series of requests or a single request, was vexatious (paragraphs 54 to 55).
Decision(s) to Download:	[2015] AACR 32bv.doc