The Upper Tribunal has clarified the limits on the jurisdiction of the Information Commissioner and Tribunal under section 44 of the Freedom of Information Act. Section 44 FOIA provides that information is exempt from disclosure under FOIA if its disclosure is prohibited by or under any enactment. In this case the Information Tribunal had held, contrary to Ofcom’s case, that when considering this exemption, the Information Commissioner (and the Tribunal) had jurisdiction to decide whether Ofcom had acted unreasonably in not relying on one of the statutory ‘gateways’ to disclose the information. (The relevant ‘gateways’ in this case were in section 393 (2) of the Communications Act 2003). The Information Tribunal (and the Information Commissioner) had both found that Ofcom had in fact acted reasonably; however, Ofcom appealed on this significant point of principle. The Upper Tribunal has now upheld Ofcom’s argument, holding that neither the Information Commissioner nor the tribunal had jurisdiction to determine whether Ofcom had acted reasonably in not disclosing the information pursuant to the statutory gateway.
Monica Carss-Frisk QC and Jane Collier appeared for Ofcom.