DECISION BY THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to dismiss the appeal.

The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 07 February 2012, in relation to the Appellant’s late appeal against Decision Notice FS50310644, does not involve an error on a point of law.  The appeal is therefore dismissed.
 
This decision is given under section11 of the Tribunals, Courts and Enforcement Act 2007.

REASONS

An outline of the background to this appeal
1.	There is a complex and at times hotly disputed context to this appeal. For present purposes it can be summarised as follows. Mr Wise has made at least two applications under the Freedom of Information Act 2000 (FOIA) to Blackpool City Council (BCC), the public authority. Both requests concerned information relating to thefts of overhead cable from the Blackpool tram system.

2.	Request 1, made on 17 March 2010, asked for various information relating to these thefts of cabling. BCC stated that it did not hold the requested information. Mr Wise complained to the Information Commissioner, who issued a Decision Notice (FS50310644) ruling that on the balance of probabilities BCC did indeed not hold the requested information. Request 1 forms the background to the subject matter of this present appeal. I dismiss this appeal for the reasons that follow.

3.	Request 2, made on 25 August 2010, was a more specific inquiry, asking for a breakdown of the figure of £135,000 quoted in the press as the value of a series of thefts of tram cable. That request led to the Information Commissioner issuing another Decision Notice (FS50358805). Request 2 forms the background to an appeal to the First-tier Tribunal (EA/2011/0181), which is the background to the separate Upper Tribunal appeal GIA/ 366/2012. I allowed that appeal for the reasons stated in that decision.

4.	I should note that entirely separately Mr Wise obtained certain information from Lancashire Constabulary in relation to the thefts of tram cable.

The late appeal against the first Decision Notice (FS50310644)
5.	The Information Commissioner issued the first Decision Notice on 26 May 2011. Mr Wise therefore had 28 days from that date to lodge an appeal to the First-tier Tribunal (FTT) (rule 22(1) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI 2009/1976, as amended; “the GRC Procedure Rules”)). Mr Wise lodged his appeal on 19 December 2011. It was therefore over 5 months late.

6.	Mr Wise’s application was contained in an e-mail headed “Out of time appeal in FS50310644”. He acknowledged that the appeal was “very late” but argued that the circumstances were “highly exceptional”. There was, he said, “a matter that it is the overarching public interest to address” within rule 5(2) of the Information Tribunal (Enforcement Appeals) Rules 2005. He also referred to the overriding objective in rule 2 of the GRC Procedure Rules. He included with his email an attachment labelled “email 11 March 2011 possibly fabricated for DPA purposes”.

7.	Mr Wise included a detailed statement in support of the admission of his late appeal. He said that he had wanted to appeal the Decision Notice immediately, but had insufficient evidence to mount a challenge. However, on 16 December 2011, three days before making his late appeal, he had received information from the Information Commissioner (ICO) – this was, he argued “concealed evidence ... that proved beyond reasonable doubt that the ICO had wilfully circumvented section 1 FOIA in order to support the Council in its clearly unlawful responses to my request.” This was a reference to an e-mail exchange dated 11 March 2011 between the ICO and BCC, just released to him. This in turn, he argued, showed that BCC had certain information about tram cable thefts in June 2010. Mr Wise said that this showed that when finalising the Decision Notice in May 2011, the ICO had evidence before it that the public authority did in fact hold relevant information at the material time on the thefts. The ICO’s approach had been “to lie, cheat and mislead in this case”.

The First-tier Tribunal’s ruling
8.	Following a request for further clarification from the FTT, and detailed responses from Mr Wise, the application to admit the late appeal was considered by Tribunal Judge Ryan in his ruling dated 7 February 2012. Judge Ryan reviewed the submissions and set out his understanding of the main features of the chain of events (and e-mails). He also considered the approach of the ICO as set out in the Decision Notice. Judge Ryan’s main conclusion was as follows:

“It might be argued that the Information Commissioner should have found that, to the limited extent evident from the subsequent disclosure of information to the Constabulary, the Council had failed, at the date when it refused the information request, to comply with its obligation under section 1 of the Freedom of Information Act 2000. However, even if that could be established on an appeal, it does not provide sufficient reason to allow the appeal to be launched out of them and I can see no justification whatsoever for the allegations that the Information Commissioner had acted improperly in the way that he responded to the disclosure of the 24 June 2010 email and recorded his findings in the Decision Notice.

There are therefore no ‘special circumstances’ to justify granting permission to appeal out of time and I therefore reject Mr Wise’s application.”

The application for permission to appeal to the Upper Tribunal
9.	I gave permission to Mr Wise to appeal to the Upper Tribunal. In doing so I made the following observations:

‘1. This is an application for permission to appeal against the ruling of Judge Ryan, who had refused the Appellant permission to file an appeal out of time against the decision notice of the Information Commissioner (FS50310644).

2. I am not granting permission to appeal on all the grounds advanced by the Appellant in his detailed grounds of appeal. I say that for at least two reasons. 

3. First, the Appellant’s grounds of appeal to a large extent focus their attack on the Commissioner’s decision notice (DN). However, that DN is not the subject of any appeal direct to the Upper Tribunal. It is only the First-tier Tribunal (FTT)’s decision which can be challenged before the Upper Tribunal.

4. Second, the Appellant relies on rule 5 of the Information Tribunal (Enforcement Appeals) Rules 2005 (SI 2005/14). However, these rules were repealed in January 2010, when they were replaced by the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI 2009/1976; see especially rules 2, 5 and 22).

5. However, it seems that it was not just the Appellant who may have been working to the old rules. There is, it seems to me, at least an arguable case that Judge Ryan applied the wrong legal test in deciding whether or not to admit this late appeal. Judge Ryan concluded that there were no “special circumstances” justifying an out of time appeal. However, that is precisely the old rule 5(2) test. In Information Commissioner v PS [2011] UKUT 94 (AAC), I accepted that the test under the 2009 Rules was more flexible than that under the 2005 Rules (see at [18]).

6. It may well be that applying the 2009 Rules would have resulted in the same conclusion. However, that is not necessarily so. It is certainly arguable that the judge, experienced though he is, inadvertently applied the wrong (and more demanding) test. On that basis alone I should give permission to appeal.’

The parties’ submissions to the Upper Tribunal
10.	The Information Commissioner opposes this appeal. He accepts that the test under the new (post-2010) GRC Procedural Rules is more flexible than the test under the previous 2005 Rules. However, his position is that, taken in the round, and despite Judge Ryan’s reference to “special circumstances” in the concluding paragraph of the ruling, the FTT took into account relevant factors and applied the correct test. Moreover, he argues, even if the wrong test was applied, the appeal should still have been excluded as out of time.

11.	Mr Wise has made a further detailed submission reiterating his previous points. His case is that his appeal was on any reckoning exceptional and so should have been admitted, despite being late, whether one applied the old “special circumstances” test or the newer more flexible test. His submission argues that the “Stolen OH [overhead] Line Wire” document had been attached to the email of 24 June 2010 and so passed by BCC to the police. This is, he argues, a unique and exceptional case demonstrating collusion between the ICO and BCC to deprive him of his rights under FOIA.

The Upper Tribunal’s analysis
12.	The question I have to decide is whether or not the FTT’s decision involves an error on a point of law. That is a different question to whether or not I would have decided the matter in the same way. As I said in PS v Information Commissioner [2011] UKUT 94 (AAC) (at [33]):

“... the decision on whether or not to grant an extension of time is quintessentially a matter of judicial discretion. The question is not what I would have decided had I been standing in the shoes of the Principal Judge.  An appellate tribunal may only intervene if there is an error of law by the First-tier Tribunal.”

13.	I also pointed out in that decision that “It is also important to be realistic and to keep a sense of proportion about the extent to which tribunals are expected to spell out their reasons in a matter such as this” (at [35]).

14.	My conclusion in the present case is that the FTT’s ruling does not involve a material error on a point of law. I gave permission to appeal as the very last paragraph of the FTT’s ruling indicated that it may have applied the older, more rigorous test of “special circumstances”. The test now, under the new rule 5(3)(a) of the GRC Procedure Rules, is a (fairly general) power to “extend or shorten the time for complying with any rule, practice direction or direction, unless such extension or shortening would conflict with a provision of another enactment containing a time limit”. This is necessarily subject to the overriding objective in rule 2 of dealing with cases fairly and justly. This in turn means taking into account all relevant circumstances.

15.	Reading the ruling as a whole, and not focussing on that final paragraph, I am satisfied that this is the test that Judge Ryan applied. He considered Mr Wise’s arguments and looked at the matter in the round. The fact that he did not refer to a particular factor in the reasons in his ruling does not mean that he did not take it into account. For example, Judge Ryan does not refer in terms to the fact that the notice of appeal was over 5 months late, but that was plainly a consideration which by implication he took into account.

16.	Furthermore, the nub of Mr Wise’s case, in essence, was two-fold: (1) that he was not in a position to proceed until he received the December 2011 communication from the ICO with the disclosure of the earlier email exchanges; and (2) that the ICO had acted improperly. Judge Ryan addressed both points in his reasoning. The weight to be attached to particular matters was a matter for the FTT judge to determine in his discretion. Moreover, having read the Decision Notice in the light of all the evidence on file, the decision Judge Ryan came to – essentially that the ICO investigator had tested BCC’s case and had come to a reasonable decision – was one that he was entitled to reach.

17.	I also note that in reaching his decision Judge Ryan expressly conceded that there was an argument that BCC may have breached its section 1 requirement at the date that it refused Mr Wise’s request. He did not need to reach a decided view on that, but he clearly recognised that the point was arguable, and that this was a point in Mr Wise’s favour. However, his conclusion was that even if that were so, it was still not a weighty enough reason to allow him to launch (such) a late appeal. Again, that is a matter for the FTT judge’s discretion.

18.	It is also not entirely clear that when using the expression “special circumstances” Judge Ryan was necessarily referring back directly to the old and stricter rule 5(2) test. He may have just been using it as a shorthand term to describe the need for some sort of strong case to justify admission of a late appeal within the context of the new rule 5(3)(a), when the presumption is that the time limit is there for a purpose and must be respected. He may, alternatively, have been using it simply to summarise Mr Wise’s primary argument that the matter was exceptional. All in all, having regard to all these considerations, I do not think that Judge Ryan applied the wrong test. That possibility might have been more likely if the FTT had considered and made its ruling in say February 2010, just after the rules changed, when tribunals were still getting used to the new GRC Procedure Rules. However, Judge Ryan made his ruling two years later, in February 2012, and almost a year after my decision in PS v Information Commissioner (decided in March 2011), and I regard it as highly improbable that the judge somehow then reverted to applying the old test.
19.	For completeness, I should consider the position if it turned out that I was wrong in the analysis above, and in fact Judge Ryan had indeed applied the wrong test, namely the older rule 5(2) test. If this were the case, it would be an error of law.  What then should be the outcome? However, I do not have to set aside a decision simply because it involves an error of law. I have a discretion to exercise in such a situation (Tribunals, Courts and Enforcement Act 2008, section 12 (2)(a)).

20.	In this eventuality, I would still not have set aside Judge Ryan’s ruling in any event. I agree with the Information Commissioner that Judge Ryan reached the right conclusion anyway, i.e. not to admit the late appeal. I take the view that Mr Wise has not suffered any injustice. In arriving at such a conclusion I would take into account the following factors:

•	The notice of appeal was more than 5 months outside the statutory 28 day time limit;
•	The longer the delay, the more compelling should be the reason(s) for admitting the late appeal;
•	Mr Wise was plainly unhappy with the Decision Notice when it was issued – although he said he had “insufficient evidence” at that stage, he could obviously had lodged an in-time appeal, which would in turn have doubtless resulted in the disclosure of relevant communications between the public authority and BCC;
•	Mr Wise now appears to have the key information that he originally requested, obtained either from BCC or from the police, and so it is difficult to see what useful function any appeal could serve now against the Decision Notice in issue;
•	Mr Wise’s allegations of serious misconduct by ICO, and that that body has connived with the public authority, have not persuaded either Judge Ryan or me that they have any justification.

Conclusion
21.	I therefore conclude that this appeal must be dismissed.

Signed on the original				Nicholas Wikeley
on 14 January 2013					Judge of the Upper Tribunal