IN THE
MATTER OF AN APPEAL TO
THE
FIRST-TIER TRIBUNAL (INFORMATION RIGHTS)
GENERAL
REGULATORY CHAMBER
Appeal No: EA/2010/0172
BETWEEN:
MR ORDE LEVINSON
Appellant
and
THE INFORMATION COMMISSIONER
Respondent
and
THE DEPARTMENT OF HEALTH
Additional Party
Determined by: Alison McKenna, Tribunal Judge
Jacqueline
Blake, Tribunal Member
Malcolm
Clarke, Tribunal Member
On: 14 March 2011
At: Tribunals
Service, Fox Court, London
Date of Preliminary Decision: 22 March 2011
Date of Final Decision: 29 June 2011
________________________________________________________
DECISION AND
REASONS
_________________________________________________________
DECISION
This Appeal is
allowed and the Decision Notice dated
20 September 2010 is
hereby set aside.
The Tribunal does
not make a substituted Decision Notice.
REASONS
- This Appeal relates to the
Respondent’s Decision Notice FS50292323 dated 20 September 2010, in which
he concluded on the balance of probabilities that the public authority
concerned, the Department of Health (“DoH”) did not hold the requested
information.
- The information request made
by the Appellant, under the Freedom of Information Act 2000 (“FOIA”), was
addressed to DoH on 25 February 2009 and referred back to a request he had
made in 2005. Both requests concerned information about standard
operating procedures used in the NHS for the collection of urine samples.
- Following receipt of the
Decision Notice, the Appellant submitted a Notice of Appeal to the Tribunal
in the grounds of which he argued both that the Respondent’s decision on
the substantive issue (whether DoH held the requested information) was
wrong and also that the Respondent had misinterpreted his information
request of 25 February 2009 and had consequently asked DoH the wrong
questions in his investigation.
- It was apparent to the
Tribunal that there was a fundamental disagreement between the parties as
to the scope of the information request dated 25 February 2009 and
consequently as to the issues in the appeal. The Tribunal took the view that,
if the Respondent had misinterpreted the scope of the information request
dated 25 February 2009, that issue should be treated as a separate ground
of appeal. The Tribunal decided that it should determine the scope of the
information request as a preliminary issue, pursuant to rule 5 (3)(e) of
The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber)
Rules 2009 (“the Rules”) because that issue was one that inevitably affected
the conduct of the final hearing. The Tribunal’s view was that it was
only once the scope of the information request had been determined by the
Tribunal that it would be possible to hold a hearing on the main issue,
which was whether it had been reasonable for the Respondent to have
concluded on the balance of probabilities that the information requested
(as determined by the Tribunal) was not held by DoH.
The Preliminary issue
- The Preliminary Issue was formulated
by the Tribunal as “whether the Respondent misinterpreted the scope of
the Appellant’s request for information dated 25 February 2009 to be a
request only for the information held by and referred to in correspondence
by Professor Duerden, rather than a request for all the information held
by the Additional Party”.
- The Tribunal’s directions
provided for the filing of written submissions in relation to the Preliminary
Issue. These were duly provided by the parties. The Appellant elected to
attend to make oral submissions on the Preliminary Issue but the other
parties chose not to attend to do so and relied on written submissions to
the Tribunal. The Tribunal was content with this arrangement and excused
the Respondent and DoH from attending the hearing of the Preliminary
Issue.
- The Tribunal’s directions
also provided for an exchange of evidence between the parties and for the
agreement of a bundle of papers to be used for both the preliminary and
the main hearings. For the Preliminary Issue hearing on 14 March, the
Tribunal was provided with a bundle that ran to over 150 pages, and even
then the Tribunal was sent additional papers and a revised index by e mail
on 10 March.
The Tribunal’s Conclusions on the Preliminary Issue
- On 22 March 2011 the
Tribunal issued its ruling on the Preliminary Issue. Having considered
the bundle of evidence very carefully, the Tribunal concluded that a
letter sent to DoH by the Appellant on 28 June 2005 should reasonably have
been treated by DoH as a clarification of his earlier request dated 15
June 2005 so that the request was then clarified to be one for the
clinical papers held by DoH itself (on the subject of the effect on the
detection of infection of a failure to comply with the standard operating
procedures) rather than a request for papers held by Professor Duerden in
his personal capacity. The Tribunal concluded that DoH’s response in 2005
did not address the Appellant’s subsequent clarification and that this
error had been repeated in 2009 by referring the Appellant back to the
earlier (inadequate) response.
- The Tribunal’s finding on
the Preliminary Issue was that the Respondent had misdirected himself as
to the scope of the information request in 2009 by relying on DoH’s erroneous
analysis of it. The Respondent in consequence had not made the inquiries that
it would have been appropriate for him to have made before concluding that
the requested information was not held.
Events subsequent to the Preliminary Issue Ruling
- Following the Tribunal’s
ruling on the Preliminary Issue and by agreement with the parties, this
appeal was stayed in order to allow DoH to consider the Appellant’s information
request as interpreted by the Tribunal.
- On 5 May 2011, DoH
responded to the Appellant (a) confirming that it did hold information
falling within the scope of his request and (b) that it was relying on s.
12 FOIA to refuse to provide the information requested, because the cost
of complying with the request would exceed the appropriate limit. DoH
also advised the Appellant that it might be possible for him to make a
narrower request which would not be caught by s.12, although it could not
guarantee in advance whether any FOIA exemptions would be engaged.
- The Tribunal notes that the
Appellant has a new right of appeal to the Information Commissioner in
respect of the DoH’s reliance upon s. 12 FOIA, following which he would
have a fresh right of appeal to the Tribunal if he considered that the subsequent
Decision Notice was wrong.
- The Tribunal has received
various submissions from the parties as to the appropriate way forward in
the present circumstances. The Appellant clearly recognises that there is
now no further issue for the Tribunal to determine in this appeal, but
seeks to broker an agreement with DoH in relation to the outcome of a
prospective FOIA request. He is apparently unwilling to withdraw this
appeal unless such an agreement is reached. The Tribunal observes that it
can have no role in securing or approving such an agreement, which would
exceed its remit. The Tribunal has suggested that a consent order
pursuant to rule 37 of the Rules could be entered into by the parties but
an agreement to do so has not been forthcoming.
- The Respondent has invited
the Tribunal to dispose of these proceedings in reliance upon rule 32(4)
of the Rules, which provides that:
“…if the
Tribunal holds a hearing to consider a preliminary issue, and following the
disposal of that preliminary issue no further issue remains to be determined,
the Tribunal may dispose of the proceedings without holding any further hearing”.
The
Tribunal has concluded that it would now be appropriate to dispose of these
proceedings in reliance upon rule 32 (4). This is because, following the
determination of the Preliminary Issue to the effect that the Respondent had
misunderstood the scope of the original request, and further following the
acceptance of DoH by letter dated 5 May that it held the information requested,
the two issues originally before the Tribunal in this appeal have been resolved
in the Appellant’s favour (notwithstanding the intervening exemption claimed in
relation to s.12) and there are consequently no further issues remaining to be
determined by the Tribunal in this appeal.
15. For the avoidance of doubt, the Tribunal wishes to make
clear to the Appellant that he now has the options of (i) appealing to the
Information Commissioner about the DoH’s refusal of information based on s. 12
FOIA and/or (ii) proceeding to make a narrower information request which must
be determined by DoH on its merits.
- The Tribunal accordingly
disposes of this appeal by making the decision recorded above.
Signed:
Alison McKenna
Tribunal Judge Dated:
29 June 2011
