The Upper Tribunal set aside an information-rights decision concerning communications between the Information Commissioner and a parish council.
The section 44 issue
The disputed exemption was section 44 of the Freedom of Information Act 2000, used with section 132 of the Data Protection Act 2018. Section 44 is an absolute exemption where disclosure is prohibited by another enactment, but the Tribunal still had to identify precisely which information fell within that prohibition.
Could part of the material be disclosed?
The First-tier Tribunal did not adequately consider whether material sent by the Commissioner to the council could be separated and disclosed without revealing protected information. It also failed to make sufficient findings about the requester’s argument that some information had already been made public during council meetings.
The special duty created by closed evidence
Where relevant material cannot be shown to the requester, the adversarial process cannot operate normally. The Upper Tribunal emphasised that the First-tier Tribunal must itself give anxious consideration to arguments that might arise from the closed material, even where the requester cannot formulate those arguments.
The outcome
The appeal was allowed, the First-tier Tribunal decision was set aside and the case was sent to a differently constituted tribunal for redetermination. The Upper Tribunal did not order wholesale disclosure of the requested information.
Black Sheep evidence lesson
Challenge a blanket refusal at information level. Schedule the sender, recipient, date, broad subject, claimed prohibition, possible severance and any evidence of earlier public disclosure. Where closed material is involved, identify the questions the Tribunal must test independently rather than attempting to guess the hidden content.