Commissioner’s decision was “not in accordance with the law” even though it was
not vitiated by public law error.”
29. Additionally as regards the Tribunal's role we noted (para 30) Peter Wilson -vThe Information Commissioner [2022] UKFTT 0149:“...the Tribunal’s statutory role is to consider whether there is an error of law or
inappropriate exercise of discretion in the Decision Notice. The Tribunal may not
allow an appeal simply because it disagrees with the Information Commissioner’s
Decision. It is also not the Tribunal’s role to conduct a procedural review of the
Information Commissioner’s decision making process or to correct the drafting of
the Decision Notice.”
Entitlement to information
30. FOIA provides that any person making a request for information to a public
authority is entitled to be informed in writing if that information is held
(section 1(1) (a) FOIA) and if that is the case to be provided with that
information (section 1 (1) (b) FOIA).
31. These entitlements are subject to a number of exemptions some of which are
absolute and others are subject to the PIBT in section 2(2)(b) FOIA which is
that:“In all the circumstances of the case, the public interest in maintaining the
exemption outweighs the public interest in disclosing the information.”
32. UoE relies on 4 exemptions for the redactions it has made namely those found
at sections 41(1) and 40(2) and sections 36(2)(b)(ii) and 36(2)(c) of FOIA.
Section 41(1)
33. Section 41(1) provides that information is exempt if:(a)it was obtained by the public authority from any other person (including another
public authority), and
(b)the disclosure of the information to the public (otherwise than under this Act) by
the public authority holding it would constitute a breach of confidence actionable
by that or any other person.
34. This exemption is an absolute exemption by section 2(3)(g) FOIA and thus the
PIBT does not apply. However it is a defence to a claim of breach of confidence
to assert that disclosure was in the public interest. In effect this means that if
the public authority (in this case UoE) would itself have had a public interest
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