03/05/2022 – a development in ‘Gaming’ the FoIA’ – National Highways Fail to Release Information Despite Assurances
General Regulatory Chamber
Appeal reference: EA-2021-0257
National Highways (Appellant)
Philip Swift (Respondents)
EXTENSION OF TIME AND DECISION UNDER RULE 4(3)
The decision of the tribunal case worker to consent to the withdrawal of the appeal stands. The tribunal consents to the withdrawal of the appeal.
1. On 20 January 2022 National Highways wrote to the Tribunal giving notice to withdraw their appeal. Consent was provided by the Tribunal caseworker on 26 January 2022 and thus the notice took effect and the appeal was withdrawn. The parties were notified.
2. On 9 February 2022, National Highways issued a fresh response to Mr Swift’s request for information. Mr Swift does not accept that this response adequately deals with his request for information.
3. Paragraph 17(3) provides that a party who has withdrawn their appeal may apply to reinstate that appeal within 28 days. No application to this effect has been received from National Highways. There is no provision in the rules for another party to make such an application where an appellant seeks to withdraw their appeal.
4. Mr Swift has written to the tribunal dated 8 April 2022 to ask that the tribunal does not agree to the withdrawal.
5. I treat this as an application under rule 4(3) for me to consider afresh the decision of the tribunal case worker to consent to the withdrawal. The application is late but in the circumstances, particularly that Mr Swift has written to the Tribunal on the subject of the withdrawal previously, I extend time and consider the application.
6. Mr Swift submits that the appeal should not be withdrawn because
a. The key issue behind the appeal remains in dispute
b. He submits that National Highways are continuing to withhold documents and does not abide by the decisions of the First Tier Tribunal
c. The is a “significant public interest consideration”
d. The withdrawal is made too late and in order to avoid compliance with directions and/or sanction for non-compliance
e. Subsequent events demonstrate that they do not accept the decision of the Information Commissioner, the appeal against which they have withdrawn. They have indicated in writing that they withdrew the appeal because a third party Kier, were content to provide the information and thus the appeal was “a waste of resources”.
f. Mr Swift has been provide with information but he maintains that further information is being withheld
g. There remain live issues to be determined.
h. A decision of “the higher tribunal is authoritative” on the correct interpretation of the legislation.
7. In considering whether to consent to the withdrawal of an appeal the tribunal should consider the interests of the appellant, the other parties and the public interest, include the function being exercised by the tribunal in the case.
8. The Information Commissioner’s decision that was appealed was that National Highways does hold the requested information for the purposes of FOIA. The Commissioner considered the requested information is held by Kier on National Highways’ behalf.
9. Having withdrawn their appeal the appellant will be expected to comply with the decision of the Information Commissioner. Even though their email of withdrawal was to an extent equivocal this cannot change the legal position that they have been required to take steps by the Information Commissioner on a certain basis.
10. National Highways has sought to comply with that decision by way of its fresh response on 9 February 2022. If they have not complied then the Commissioner may seek to enforce the decision in the High Court. That is not a matter for this tribunal.
11. If National Highways have complied with the decision to reconsider the request on the basis that it does hold the requested information and issue a fresh response, but Mr Swift wishes to dispute the adequacy of the fresh response he can request an internal review by National Highways and then complain to the Information Commissioner if he remains dissatisfied. The tribunal can only become involved in an assessment of the issues if an appeal is made against any future finding by the Information Commissioner in a decision subject to appeal rights under FOIA.
12. The Information Commissioner’s decision upheld Mr Swift’s stated position, it is binding on the public authority given their withdrawal of their appeal against it. Mr Swift’s interests as the requestor are protected by the process in relation to the new response he has received. There is no prejudice caused to him by the withdrawal of the appeal which has the same effect as if the appeal had been dismissed and the Information Commissioner’s decision confirmed.
13. Whether or not documents are held by a public authority is not a matter that engages a consideration of the public interest (unlike other provisions within FOIA). Mr Swift does not set out the public interest he says is engaged by this appeal but having considered the circumstances and the nature of the request my conclusion is that there is no wider public interest to be determined in the appeal which would, in any event, be restricted as a matter of law to consider the decision under appeal pursuant to s 57 & s 58 FOIA. The issue is confined to whether Kier holds documents on behalf of National Highways and the Information Commissioner’s decision sets out clearly that they do. The Information Commissioner has not objected to the withdrawal of the appeal.
14. Generally a withdrawal may be made at any point before the decision of the Tribunal is given. Rule 17 is silent on this issue and I do not accept that there is an inference to be drawn that the withdrawal is tactical.
15. In all the circumstances, having considered rule 17 in the context of rule 2 and for the reasons given above I have concluded that the Tribunal Case worker was correct to give consent to the notice of withdrawal and I make the same decision myself.
Tribunal Judge Lynn Griffin
Dated: 3 May 2022