When requesters seek to challenge the refusal to release information to them under the freedom of information laws in place throughout the United Kingdom, they do so with one hand tied behind their back. They do not know the contents of the withheld information and that is for a very good and obvious reason: it would defeat the purpose of withholding the information if it was simply, as part of the appeal proceedings, going to be disclosed to the person from whom it was being withheld.

This causes significantly greater difficulties under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 than it does under the Scottish equivalents. This is primarily because of the appeals process that operates in relation to decisions of the UK Information Commissioner in relation to those pieces of legislation, in particular appeals to the First-Tier Tribunal. Those appeals are de novo (in other words, they are a complete rehearing of the case and the Tribunal is empowered to substitute its own decision for that of the Commissioner if it does not agree with the Commissioner’s decision). As a consequence of this, it is usually necessary for the First-Tier Tribunal to have sight of and consider the material that has been withheld from the requester. In Scotland, as the appeal to the Court of Session against a decision of the Scottish Information Commissioner is on a point of law only, it is not necessary for the Court of Session to have sight of the information at the centre of the dispute.

Normally, in proceedings before courts and tribunals, all parties see any document provided to the court or tribunal by every other party to the case. However, as indicated above, in appeals involving FOI requests, it would render the appeal pointless if the person who made the request was, as part of the appeal process, provided with a copy of the information that is in dispute. However, there is an obvious unfairness to the party who is kept in the dark about some of the material which is before the Tribunal. This unfairness and how to minimise it has come before the courts and Tribunals before, in particular in the case of Browning v Information Commissioner [2014] EWCA Civ 1050.

In the First-Tier Tribunal it is common for a “closed session” to take place, where the person who made the request (and their legal representatives, if any) is excluded from the hearing. During such closed sessions, the Tribunal will consider the withheld information. The Tribunal may also hear evidence from witnesses which could not be made in “open” without risking revealing the information in question. Submissions will usually be made on behalf of the Commissioner and the public authority which, again, could not be made without revealing the content of the withheld information. After the closed part of the hearing has concluded and the Tribunal is once again sitting in open session, the party who was excluded from the closed session will be given a “gist” of what happened in the closed session. This will consist of a summary of the closed hearing (including any evidence heard and submissions made), insofar as possible without undermining the purpose of the tribunal proceedings, and anything new which arose during the closed session which it is not necessary to withhold from the excluded party. The gist is necessary to minimise the unfairness faced by the excluded party to the utmost extent.

What is described above is what is happens when the Tribunal holds a hearing, either in person or by remote means. However, the Tribunal does not need to hold a hearing. It can, if the parties’ consent and the Tribunal agrees, consider the case solely on the papers. The issue of what should happen when the Tribunal considers “closed” material in cases where they are determining the appeal on the papers alone arose in the recent decision of the Upper Tribunal in Barrett v Information Commissioner and Financial Ombudsman Service [2014] UKUT 107 (AAC).

The First-Tier Tribunal had indicated in its decision that it was not normal practice to provide a gist of closed material in a case which is decided on the papers. This is not a satisfactory position. As the Upper Tribunal recognises at [103] of its decision, “the requirement to minimise the disadvantages faced by a FOIA appellant is uniform”. In other words, there is no distinction between cases decided after a hearing and cases decided on the papers when it comes to the need to minimise unfairness. A party who does not receive closed material (including closed submissions) in a case decided on the papers should not be in a less advantageous position than someone whose case is being decided at a hearing, simply because their case is being decided on the papers. In the case before it, the First-Tier Tribunal did not provide any gist in relation to the closed material, despite there being three requests for one by the appellant.

In responding to the Upper Tribunal appeal, the Financial Ombudsman Service had sought to rely on the First-Tier Tribunal having provided a further description of the closed material in its reasons. However, the Upper Tribunal held this to be “irrelevant” [101]. By the time the appellant had been given the further description of the closed material, it was too late; the First-Tier Tribunal had already taken its decision to refuse his appeal and therefore the appellant was deprived of an opportunity to make any submissions focussing on anything that arose from that additional information. What the First-Tier Tribunal had said in its reasons was not capable of minimising the disadvantages faced by the appellant in arguing his case.

The Upper Tribunal did not go on to prescribe or give guidance as to how the First-Tier Tribunal should gist closed material in a case being decided on the papers, leaving it to the First-Tier Tribunal to decide this. However, what is clear from the decision of the Upper Tribunal is that the practice of the First-Tier Tribunal of not normally providing a gist of closed material in cases decided on the papers is not proper. The First-Tier Tribunal will now require to alter its procedures for determining cases on the papers to ensure that the panel deciding the case gives adequate consideration to whether a gist should be provided and, if so, what it should contain in those cases.

The other two issues considered by the Upper Tribunal in its decision are also worthy of note. The first relates to whether the First-Tier Tribunal’s Registrar has the power to give a direction under Rule 14(6) of the First-Tier Tribunal’s rules that information must or may be disclosed to the Tribunal on the basis that it will not be disclosed to other persons, or to specified other persons. This is the rule under which the withheld information is kept private from the person who made the FOI request in proceedings before the First-Tier Tribunal. It was not necessary for the Upper Tribunal to decide this point as it had found in favour of the Appellant on the gist issue; however, it is clear that the Upper Tribunal considers that this is not something that the Senior President of Tribunals has delegated to the First-Tier Tribunal’s Registrars.

The other issue was the approach adopted by the Registrar in making the direction under Rule 14(6) (a direction that they probably didn’t have the power to make anyway). The Upper Tribunal considered that the process adopted was flawed. The Registrar refused to allow the Appellant to make submissions on the request for the Rule 14(6) direction because his submissions would cause unnecessary delay because they were pointless. This was, the Upper Tribunal stated at [92] an irrelevant (or a non-existent) consideration. The reasoning adopted by the Registrar for their refusal amounted to a “categorical bar on the appellant making representations” concerning the application made under Rule 14(6). Furthermore, it had the effect of “nullifying” the provisions of Rule 14(8), which requires the Tribunal to notify all other parties if one party applies for a direction under Rule 14(6). The appellant ultimately lost in the Upper Tribunal on this ground of appeal because over the course of the whole proceedings before the First-Tier Tribunal, he did get an opportunity to make submissions on the application of Rule 14(6). However, it is clear, that all parties should be permitted to make submissions in relation to an application for a direction under Rule 14(6) before such a direction is made. Clearly, the party who made the request for information is at a disadvantage in this regard because they do not know what they do not know. Their submissions will likely be less focussed than those of the public authority and the Commissioner, both of whom know the content of the withheld information. However, their submissions are still relevant and can be of value to the Tribunal in considering what direction to make in terms of Rule 14(6). A direction under Rule 14(6) shouldn’t go any further than is necessary to protect the integrity of the proceedings before it.