Pereira v Information Commissioner
[2023] UKUT 130 (AAC)
IN THE UPPER TRIBUNAL UT ref: UA-2022-000871-GIA
ADMINISTRATIVE APPEALS CHAMBER
On appeal from First-tier Tribunal (General Regulatory Chamber) (Information Rights)
Between:
Mr Noel Pereira
Appellant
-v–
The Information Commissioner
Respondent
Before: Upper Tribunal Judge Wright
Decision date: 5 June 2023
Decided after a remote (video) oral hearing on 20 April 2023
Representation: Mr Pereira represented himself
The respondent did not appear at the hearing
DECISION
The decision of the Upper Tribunal is to dismiss the appeal. The decision of the
First-tier Tribunal dated 22 April 2022 (as amended on 13 May 2022) under case
number EA/2021/0097 did not involve the making of any material error of law.
REASONS FOR DECISION
Introduction
1. This appeal concerns a number of requests Mr Pereira made to the Insolvency
Service concerning why it had granted a Debt Relief Order to a third party who owed
money to Mr Pereira.
2. A Debt Relief Order is a way by which an individual can deal with their debts if
they cannot afford to pay them. If granted, the Debt Relief Order means that certain
debts do not need to be paid by the individual. It can be applied for via an “approved
intermediary”, who is an authorised debt adviser.
The requests
3. The first request was made by Mr Pereira on 27 December 2019 and asked the
Insolvency Service about the steps it had taken to verify the information provided by
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the third party prior to the Insolvency Service granting that third party a Debt Relief
Order on 19 November 2019. Mr Pereira said he was making the request because
he was concerned that others in his position may have lost because of the Insolvency
Service’s promptness in issuing Debt Relief Orders “without having made essential
checks”. He also requested, at the same time, to be informed of what further
investigations the Insolvency Service performed after Mr Pereira’s objection and
complaint.
4. The Insolvency Service is not itself a ‘public authority’ for the purposes of the
Freedom of Information Act 2000 (“FOIA”), but it is an executive agency of the
Department for Business, Energy and Industrial Strategy and the latter is a FOIA
public authority. I use ‘Insolvency Service’ to refer to the public authority for ease of
reference in this decision.
5. As the First-tier Tribunal rightly summarised in its decision, Mr Pereira was (and
remains) aggrieved by the grant of a Debt Relief Order (“DRO”) given to a particular
individual with whom Mr Pereira had a dispute about money owed. The information
provided by Mr Pereira led to the DRO being revoked.
6. The Insolvency Service responded to Mr Pereira’s requests of 27 December
2019 by saying that it held information falling within the scope of the requests but it
considered the information was exempt from disclosure under section 40(2) of the
Freedom of Information Act 2000 (“FOIA”).
7. This led Mr Pereira to, in his words, rephrase the request to ask what steps the
Insolvency Service takes, in general, to ensure that claims for a DRO have merit. By
its response to this request, the Insolvency Service said that it held the requested
information, and it provided Mr Pereira with a description of the process followed and
a link to the DRO process.
8. In asking the Insolvency Service to conduct an internal review of this response
Mr Pereira further asked it to (i) inform him of the name of the debt adviser/authorised
intermediary involved in his case, and (ii) notify him of “what checks are performed in
these circumstances (before granting a DRO or if your circumstances change during
a DRO)…and, if the info is allowable, were performed in this case, particularly after
my objection where [an Insolvency Service employee in a letter dated 22 November
2019 had stated] ‘extensive investigations’ were performed”. I will term these the
“further requests”.
9. In its response to the internal review, the Insolvency Service said that it did not
hold any further information about the general steps that are taken to ensure a DRO
application has merit. As for the further requests, it said, in respect of (i) in the further
requests, that it held the name of the debt adviser but considered this was exempt
from disclosure under section 40(2) of FOIA. As to part (ii) of the further requests, the
Insolvency Service said that the checks that are performed in the circumstances had
already been provided to Mr Pereira, in response to his ‘rephrased’ request. This was
therefore considered a repeat request and was refused under section 14(2) of FOIA.
The remainder of part (ii) of the further requests was refused under section 40(2) of
FOIA because it was specific to the third party’s case.
10. It is apparent from the above summary of Mr Pereira’s requests that, broadly,
they fell into three categories. First, he wanted general information about how a DRO
is awarded. Second, he wanted the name of the debt adviser, that is the authorised
intermediary, who had assisted the third party to obtain a DRO. Third, Mr Pereira was
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seeking information about the specific actions the Insolvency Service took in relation
to the DRO applied for and obtained by the third party.
The (sole) request with which these appeal proceedings is concerned
11. I emphasise these three categories of request as only one of them (the third)
arises on this appeal to the Upper Tribunal. This is because Mr Pereira confirmed to
the First-tier Tribunal that he was no longer seeking the name of the debt
adviser/authorised intermediary, but just the organisation for which that person
worked, which he had subsequently been provided with. Further, Mr Pereira
succeeded in his appeal to the First-tier Tribunal about being disclosed further
information by the Insolvency Service in respect of his request for general information
about how a DRO is awarded.
12. It had become apparent during the Information Commissioner’s investigation of
Mr Pereira’s complaint against the Insolvency Service’s responses to his requests
that the public authority held written guidance for staff in the small number of cases
where objections or complaints are received against DROs. The Insolvency Service
had not disclosed this guidance to Mr Pereira under FOIA as it had not been used in
the case of the third party’s DRO and therefore was considered to be irrelevant to Mr
Pereira’s requests. The Information Commissioner effectively endorsed the
Insolvency Service’s approach on this point by holding that the request for such
guidance did not come within the scope of any of Mr Pereira’s requests. The First-tier
Tribunal allowed Mr Pereira’s appeal on this point as it did not consider Mr Pereira’s
requests were limited to information relating to the particular third party DRO of which
Mr Pereira was particularly aggrieved. The First-tier Tribunal therefore substituted a
decision notice in the following terms.
“The [Insolvency Service] is required to take the following steps to ensure
compliance with the legislation:-
Reconsider [Mr Pereira’s] requests afresh on the basis that the scope of
the requests includes all information (such as guidance to staff) which
covers the steps carried out to ensure that claims have got merit including
the steps to be taken in relation to contested DROs, not limited to the
information used in relation to the specific DRO with which [Mr Pereira]
has been involved.
The [Insolvency Service] must take these steps within 35 calendar days of
the date of this decision, and inform [Mr Pereira] of the outcome from
taking those steps within the same time period.”
13. I have dealt with this point in some detail because Mr Pereira considers the
Insolvency Service has failed to carry out the above steps ordered by the First-tier
Tribunal and he (wrongly) thought this alleged failing would fall for consideration on
this appeal. I advised Mr Pereira that this was not the case as all I was concerned
with was his challenge to part of the First-tier Tribunal’s decision that did not find in
his favour. That is the part of the decision that concerned the specific details of the
third party’s DRO. Challenging a failure of a party to carry out the steps it had been
ordered to carry out gives rise to separate proceedings under section 61(3) and (4) of
FOIA and rule 7A of the Tribunal Procedure (First-tier Tribunal) (General Regulatory
Chamber) Rules 2008. It is for Mr Pereira to investigate the basis of his making an
application under that route.
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14. Reverting then to the issue on this appeal, the First-tier Tribunal dealt with it as
follows:
“39. The other ‘live’ issue in this case is whether disclosure of information
relating to the specific DRO application with which the Appellant is
involved, is covered by s40(2) FOIA and exempted from disclosure.
40. Applying the legal framework above, it is our view that the information
sought is clearly the personal information of the third party applicant, and it
is additional to the information currently available about the third party
online.
41. We accept the Commissioner’s analysis in the decision notice that the
Appellant has a legitimate interest in the disclosure of the information, to
enable him to discover how the third party was able to successfully apply
for a DRO in the circumstances of the case. Given the availability of some
information online, the process which led to the revocation of the DRO,
and the availability of the Ombudsman to investigate the procedures of the
Insolvency Service this must lessen the Appellant’s legitimate interest in
disclosure. We are also less sure than the Commissioner that disclosure
would be necessary to fulfil this legitimate interest, but on balance we
accept that there may be undisclosed information which it would still be
necessary for the Appellant to have access to.
42. Therefore, to complete our analysis, it is necessary to balance these
legitimate interests in disclosure to the Appellant against the data subject’s
interests or fundamental rights and freedoms. In doing so, it is necessary
to consider the impact of disclosure.
43. We agree with the Commissioner’s view that the named third party
would have no expectation that the Insolvency Service would disclose
details of his DRO application to the ‘world at large’ (as disclosure under
FOIA cannot be restricted). We have viewed the withheld information, and
its disclosure would clearly interfere with the privacy rights of the named
third party and be likely to cause him harm and/or distress. We note the
Appellant’s allegation that the third party has been dishonest in his
application, but it seems to us that, even if that is so, that does not remove
the third party’s reasonable expectation that the information will not be
disclosed.
44. Therefore, we accept that Appellant has a limited legitimate interest in
accessing this information, but in our view this is insufficient to outweigh
the third party’s fundamental rights and freedoms relating to their private
life, even if the information provided during the application process was
not all true.”
15. The First-tier Tribunal’s reference in paragraph 40 to the “legal framework is a
reference to the following earlier paragraphs in its decision.
“12. Under section 1(1)(a) FOIA, a public authority is obliged to tell an
applicant whether or not it holds the information requested. The ‘scope’ of
the request itself is something to be interpreted by the public authority and
the Commissioner, and now by the Tribunal.
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13. There are also issues in this case which relation to the disclosure of
information which is potentially ‘personal’ in nature. Section 40 (2) FOIA
reads as follows:-
(2) Any information to which a request for information relates is also
exempt information if—
(a) it constitutes personal data which does not fall within subsection
(1) (personal information of the applicant], and
(b) the first, second or third condition below is satisfied.
14. Section 3(2) of the Data Protection Act 2018 (DPA 2018) defines
personal data as ‘any information relating to an identified or identifiable
living individual’.
15. The relevant condition (as referred to in s40(2)(b) FOIA) in this case is
found in s40(3A)(a):-
(3A) The first condition is that the disclosure of the information to a
member of the public otherwise than under this Act— (a) would
contravene any of the data protection principles.
16. Under s40(7) FOIA the relevant data protection principles in this case
are to be found, first, in Article 5(1) of the General Data Protection
Regulation (GDPR). Materially, Article 5(1)(a) reads:-
Personal data shall be: (a) processed lawfully, fairly and in a
transparent manner in relation to the data subject (‘lawfulness,
fairness and transparency’).
17. Further, and relevantly for this case by Article 6(1) GDPR:-
Processing shall be lawful only if and to the extent that at least one of
the following applies:
(a) the data subject has given consent to the processing of his or
her personal data for one or more specific purposes;
(f) processing is necessary for the purposes of the legitimate
interests pursued by the controller or by a third party, except where
such interests are overridden by the interests or fundamental rights
and freedoms of the data subject which require protection of personal
data…
18. In relation to the tests to be applied at this last stage the principles are
set out in Goldsmith International Business School v IC and the Home
Office [2014] UKUT 0563 (AAC) and explained as follows:-
33. In making his submissions Mr Knight referred me to four
authorities, being (in date order) decisions of the Information
Tribunal, the Divisional Court, the Supreme Court and the Upper
Tribunal respectively. These were: (1) Corporate Officer of the House
of Commons v Information Commissioner and Others
(EA/2007/0060-0063, 0122-0123 and 10131) (abbreviated here to
“Corporate Officer (Information Tribunal)”); (2) Corporate Officer of
the House of Commons v Information Commissioner and Others
[2008] EWHC 1084 (Admin) (“Corporate Officer (Divisional Court)”);
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(3) South Lanarkshire Council v Scottish Information Commissioner
[2013] UKSC 55 (“South Lanarkshire”); and finally (4) Farrand v
Information Commissioner [2014] UKUT 310 (AAC) (“Farrand”). The
last, of course, was decided after the Tribunal had given its decision
on the present appeal.
34. Mr Knight helpfully set out eight principles or, as I prefer to call
them, eight propositions, derived from this case law. I set them out
below, including references to the relevant passages in the various
decisions as authority for these propositions as (a) I endorse them;
(b) they assist in resolving the present appeal; and (c) this taxonomy
may well prove a useful roadmap for the Commissioner and other
First-tier Tribunals when seeking to chart a path through the thicket
of issues thrown up by Condition 6(1) of Schedule 2 in other cases…
35. Proposition 1: Condition 6(1) of Schedule 2 to the DPA requires
three questions to be asked:
“(i) Is the data controller or the third party or parties to whom the
data are disclosed pursuing a legitimate interest or interests?
(ii) Is the processing involved necessary for the purposes of
those interests?
(iii) Is the processing unwarranted in this case by reason of
prejudice to the rights and freedoms or legitimate interests of the
data subject?”
Authority: South Lanarkshire at [18].
36. Proposition 2: The test of “necessity” under stage (ii) must be met
before the balancing test under stage (iii) is applied.
Authority: Corporate Officer (Information Tribunal) at [58], South
Lanarkshire at [18] and Farrand at [29].
37. Proposition 3: “Necessity” carries its ordinary English meaning,
being more than desirable but less than indispensable or absolute
necessity.
Authority: Corporate Officer (Divisional Court) at [43] and
Farrand at [26]- [27].
38. Proposition 4: Accordingly the test is one of “reasonable
necessity”, reflecting the European jurisprudence on proportionality,
although this may not add much to the ordinary English meaning of
the term.
Authority: Corporate Officer (Divisional Court) at [43], South
Lanarkshire at [27] and Farrand at [26].
39. Proposition 5: The test of reasonable necessity itself involves the
consideration of alternative measures, and so “a measure would not
be necessary if the legitimate aim could be achieved by something
less”; accordingly, the measure must be the “least restrictive” means
of achieving the legitimate aim in question.
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Authority: Corporate Officer (Information Tribunal) at [60]-[61]
and South Lanarkshire at [27].
40. Proposition 6: Where no Article 8 privacy rights are in issue, the
question posed under Proposition 1 can be resolved at the necessity
stage, i.e. at stage (ii) of the three-part test.
Authority: South Lanarkshire at [27].
41. Proposition 7: Where Article 8 privacy rights are in issue, the
question posed under Proposition 1 can only be resolved after
considering the excessive interference question posted by stage (iii).
Authority: Corporate Officer (Information Tribunal) at [60]-[61]
and South Lanarkshire at [25].
42. Proposition 8: The Supreme Court in South Lanarkshire did not
purport to suggest a test which is any different to that adopted by the
Information Tribunal in Corporate Officer (Information Tribunal).
Authority: South Lanarkshire at [19]-[20] and Farrand at [26].”
The Upper Tribunal’s grant of permission to appeal
16. Upper Tribunal Judge Macmillan (as she then was) gave Mr Pereira permission
to appeal against the First-tier Tribunal’s decision on 22 August 2022. She did so for
the following reasons.
“12 Mr Pereira proposes two grounds of appeal. Both relate to the FTT’s
conclusions in relation to [the requests asking to be informed of the steps
the Insolvency Service took the investigate the DRO application of the
third party] and both, in essence, concern the approach taken to balancing
Mr Pereira’s legitimate interests against the 3rd party’s rights and
interests. The first proposed ground is that the FTT should have afforded
less weight to the 3rd party’s rights and interests because the 3rd party
signed a fraudulent declaration in order to obtain the DRO. Mr Pereira
asserts in addition that a great deal of information relating to the 3rd
party’s DRO application is already in the public domain and, by inference,
that ‘the cat is already out of the bag’.
13. The second proposed ground is that there is a strong public interest in
publishing the information, because the steps IS took to investigate the 3rd
party’s DRO application were clearly inadequate. Mr Pereira submits that
he was initially informed by IS that it had carried out an “extensive
investigation” of the 3rd party’s application. However, Mr Pereira was able
to identify evidence available online of the 3rd party’s financial assets
which led to the DRO being withdrawn.
14. The FTT’s decision provides a sufficient outline of the process it has
followed when reaching its decision in relation to s.40(2). The FTT
reminded itself of relevant guidance provided by the Upper Tribunal in
Goldsmith International Business School v IC and the Home Office [2014]
UKUT 0563 (AAC), and of the eight propositions identified in this decision
from previous authorities. The FTT noted that the first proposition, derived
from the Supreme Court’s decision in South Lanarkshire Council v
Scottish Information Commissioner [2013] UKSC 55, is that the test for
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lawfulness of processing as set out in article 6(1)(f) may be distilled into
the following pertinent questions:
(i) Is the data controller or the third party or parties to whom the data are
disclosed pursuing a legitimate interest or interests?
(ii) Is the processing involved necessary for the purposes of those
interests? And
(iii) Is the processing unwarranted in this case by reason of prejudice to
the rights and freedoms or legitimate interests of the data subject?”
15. The FTT approached these questions as follows [Judge Macmillan
then set out paragraphs 41-44 of the First-tier Tribunal’s decision].
16. It is arguable that the FTT may have made an error in its approach to
question (i), namely by attaching weight to Mr Pereira’s legitimate interest
in seeking disclosure of the personal data rather than treating this question
as a binary issue. (See, by way of contrast, the approach taken by the
Upper Tribunal to the issue in Farrand v Information Commissioner [2014]
UKUT 310 (AAC) at paragraphs 23 – 25.) Further, and potentially in the
alternative, the FTT may arguably have made an error by considering
issues relevant to question (ii) – whether disclosure was reasonably
necessary for the purposes of Mr Pereira’s interests given that he had
already accessed various remedies – when determining the answer to
question (i).
17. Although it does not follow that either error (if made) was necessarily
material to the outcome of Mr Pereira’s appeal, on the face of it the
proposed ground of appeal may have some force, albeit only in relation to
the overall approach taken by the FTT to the balance of interests.” I
therefore grant permission to appeal.
18. The Information Commissioner is now invited to address the appeal.
The Information Commissioner’s views are also sought on whether, in the
context of an article 6(1)(f) balancing exercise, any distinction should be
drawn between the existence of a positive expectation by the data subject
that personal data will not be disclosed, and a more neutral position
whereby the data subject had no expectation that it would be disclosed.
(See paragraphs 33 & 34 of Corporate Officer of the House of Commons v
Information Commissioner and Ors, [2008] EWHC 1084 (Admin).) Both
approaches are taken interchangeably in the Information Commissioner’s
Decision Notice.”
The parties’ arguments on the Upper Tribunal appeal
17. The Information Commissioner has been content on this appeal to set his
arguments out in writing and did not attend the oral hearing of the appeal. He,
rightly in my judgment, set out that the appeal relates to the balancing of interests for
and against disclosure of personal information under section 40(2) of FOIA.
18. The Information Commissioner argues that the potential errors of approach
identified in the grant of permission to appeal in respect of the First-tier Tribunal’s
approach to the first question distilled from the South Lanarkshire case were not
material to the First-tier Tribunal’s decision as it had answered this question in Mr
Pereira’s favour, as it had the second South Lanarkshire question. It was only if both
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of those first two ‘South Lanarkshire’ questions were answered in Mr Pereira’s favour
that the third question and the balance of the competing interests could arise. The
Information Commissioner argues that the only issue that concerns Mr Pereira on this
appeal is whether the First-tier Tribunal approached the balance of the competing
interests correctly, and the First-tier Tribunal’s approach to any logical prior issues is
therefore irrelevant to this appeal.
19. In any event, it is argued, by the Information Commissioner, that the First-tier
Tribunal did not wrongly approach or conflate the first two questions under South
Lanarkshire. He argues that the First-tier Tribunal recognised in the first sentence of
paragraph 41 of its decision that South Lanarkshire question (i) is a binary one of “Is
there a legitimate interest in disclosure”. The second sentence of paragraph 41 was
commenting on the strength of that interest but was doing no more than
foreshadowing the balance to be struck in South Lanarkshire question (iii). Nor did
the First-tier Tribunal wrongly import issues from South Lanarkshire question (ii) in its
question (i) consideration. The concern appeared to arise from the second and third
sentences in paragraph 41 of the First-tier Tribunal’s decision, but any additional
points there raised were, again, only foreshadowing the balance of interests under
question (iii) in South Lanarkshire.
20. As for the point raised in the grant of permission to appeal, about the nature of
any expectation the third party may have had about his information remaining private,
the Information Commissioner considers that that no distinction should be drawn as a
matter of principle between different bases for such an expectation. The balancing of
the interests under section 40(2) of FOIA will be case-specific and, accordingly, the
strength of the expectation and the weight to be accorded to it will vary depending
on the facts of each individual case.
21. Focusing then on Mr Pereira’s grounds of appeal, the Information
Commissioner argues that they have no merit in error of law terms as they were
doing no more than seeking to have the factors under the balance of interests re-
evaluated.
22. Mr Pereira in his written and oral arguments before me did not make any
argument on the points raised in paragraph 16 in the grant of permission to appeal.
He focused on his grounds of appeal, as well as points concerning compliance with
the First-tier Tribunal’s substituted decision notice. In short, Mr Pereira argued, first,
that less weight should have been afforded to the third party’s privacy interests
because that third party had been found to have committed fraud. He relied on page
A28 of the First-tier Tribunal’s open bundle as showing a finding of proven fraud. Mr
Pereira argued, secondly, that more weight ought to have been given to the need for
transparency and accountability because, he considers, the Insolvency Service’s
checks had been shown to be inadequate. He argued, finally, that there was no
evidential basis for what the First-tier Tribunal said in the first sentence of paragraph
43 of its decision about the third party having no expectation that the Insolvency
Service would have disclosed details of his DRO application to the world at large.
Discussion and Conclusion
23. I agree with the Information Commissioner that the First-tier Tribunal’s approach
to the first question distilled from the South Lanarkshire case cannot have led it to
have committed any material error of law in the decision to which it came on 22 April
2022. Given the lack of any contested argument on this point, I prefer to answer this
on the basis that as far as this appeal by Mr Pereira to the Upper Tribunal is
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concerned nothing in the First-tier Tribunal’s approach to question (i) under South
Lanarkshire disfavoured Mr Pereira in the First-tier Tribunal’s decision.
24. Mr Pereira’s concern throughout these proceedings has been with whether the
First-tier Tribunal wrongly (in error of law terms) approached the balance of the
competing interests arising under section 40(2) of FOIA. That balancing of interests
point could only have been reached if he satisfied question (i) (and (ii)) under South
Lanarkshire, which the First-tier Tribunal found he did. Once that point has been
reached, I cannot see how any potential error the First-tier Tribunal may have made
in answering South Lanarkshire question (i) affected its approach to the balance of
interests under South Lanarkshire question (iii), and no one before me argued that it
did. Nor did the grant of permission to appeal proceed on the basis that there was a
necessary nexus between questions (i) and (iii) under South Lanarkshire: see
paragraph 17 of that grant.
25. I not able to identify that the correct identification of the nature of the third
party’s expectation that his personal information would not be disclosed made any
difference to the First-tier Tribunal’s approach to the balance of the competing
interests in this case. As for Mr Pereira’s argument that there was no evidential basis
for what the First-tier Tribunal said about the third party and expectation in paragraph
43 of its decision, it is important to recognise that the First-tier Tribunal’s finding was
about an absence of an expectation that the relevant requested information would
disclosed rather than a positive expectation that it would not be disclosed. In that
context, the evidence before the First-tier Tribunal, including that found in the
withheld information to which this particular request related, in my judgment provided
a sufficient basis for the First-tier Tribunal’s conclusion that the third party had no
expectation that the details in his DRO application would be disclosed by the
Insolvency Service. Mr Pereira was unable to point to any evidence showing that the
third party would have had such an expectation.
26. This then leaves Mr Pereira’s two grounds of appeal. I can deal with these quite
shortly because I do not consider there is anything in them in error of law terms.
27. Mr Pereira’s first ground is that the First-tier Tribunal failed to accord any
sufficient weight to the fact that the third party’s application for a DRO had been
proven to be fraudulent and/or it should have accorded less weight to the third party’s
interests in privacy because of this fraud. There are three main problems with this
argument. First, the weight to be accorded to evidence is classically a matter for the
specialist fact-finding First-tier Tribunal. Such a finding as to weight will only be
disturbed in an error of law jurisdiction if no rational First-tier Tribunal could have
arrived at it. That argument has no basis here. Second, the evidence on page A28 of
the First-tier Tribunal’s open bundle does not support, as Mr Pereira claims it does,
that the third part had acted fraudulently in making the DRO application. Third, the
First-tier Tribunal took the allegation of fraud into account and weighed it in its
consideration of the competing interests for and against disclosure of the third party
information, but it found that the third party’s rights to privacy (given the undisclosed
information contained sensitive personal information of the third party) outweighed
any competing interests held by Mr Pereira. That was the First-tier Tribunal’s job – to
weigh the competing interests and decide where the balance came down in favour of
disclosure or not – and in doing so it took account of all relevant matters. Mr Pereira’s
argument here is no more than a merits reargument that the First-tier Tribunal ought
to have come down in favour of disclosure because Mr Pereira considers that the
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balance of interests ought to have fallen in his favour. However, it is no part of the
Upper Tribunal’s error of law jurisdiction to redecide evidential matters.
28. The same conclusion holds true of Mr Pereira’s second ground of appeal. This
ground of appeal is that there was a strong public interest in publishing the details of
the third party’s DRO application because it had been inadequately investigated by
the Insolvency Service. Again, however, this is just a rerun of the arguments made by
Mr Pereira about the weight the First-tier Tribunal ought to have attached to the
competing interests. Having considered myself the withheld information to which this
request related, I can state clearly that the First-tier Tribunal was entitled to conclude
that disclosure of the information would clearly have interfered with privacy rights of
the third party that he would have expected would remain confidential and would be
likely to cause him harm and/or distress had that information been made public. It
was for the First-tier Tribunal to weigh and consider whether the factors Mr Pereira
articulated as providing good reasons for making the information publicly available
outweighed the privacy rights of the third party in relation to this requested
information. That balancing included, as the Information Commissioner points out,
the First-tier Tribunal’s view that the strength of the interest in revealing potential
missteps in the Insolvency Service’s investigation was lessened by the existence of
other means of obtaining transparency and accountability (particularly through the
Ombudsman). Those interests were then weighed against the nature of the private
information sought (about the third party) and the weight to be attached to keep that
private information private. The First-tier Tribunal carried out this assessment and
weighing of the relevant evidence and it did not err in law in balancing the competing
interests as it did.
29. Mr Pereira’s argument here amounted in the end to an argument that he
considered greater harm would be caused to others by the Insolvency Service
continuing to make DRO’s on an inadequately identified basis than could arise for the
third party by his private information being disclosed. Mr Pereira argued in this
respect that the third party continuing to buy guitars and other musical instruments
showed the third party remained a capable person. These, however, are no more
than arguments on the evidential merits of the case which Mr Pereira was able to
make to the First-tier Tribunal. They show no error of law in the First-tier Tribunal’s
consideration of the privacy rights of the third party that attached to the relevant
requested information.
30. It is for all these reasons that this appeal is dismissed.
Approved for issue by Stewart Wright
Judge of the Upper Tribunal
On 5th June 2023.
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