FOIA tribunal lacks jurisdiction when Commissioner declines frivolous complaints

The First-tier Tribunal has struck out an appeal in Song of the Wild Swan Ltd v The Information Commissioner [2025] UKFTT 1060 (GRC), reinforcing established precedent that tribunals lack jurisdiction when the Information Commissioner declines to make a decision on frivolous or vexatious complaints.

Case background

Song of the Wild Swan Ltd submitted a freedom of information request to Oxford City Council on 23 August 2024 seeking copies of a liability order and related documentation. The company claimed the Council had refused to provide the information, though the request acknowledged uncertainty about whether formal FOI procedures were necessary.

The Information Commissioner declined to investigate the complaint on 18 June 2025, determining it was frivolous under section 50(2)(c) FOIA. The Commissioner cited several factors: the Council had confirmed the requester already possessed the information, evidence showed the liability order was posted in August 2023, and the unpaid charges had subsequently been cancelled following property re-evaluation.

Jurisdictional challenge

Song of the Wild Swan appealed this refusal, prompting the Commissioner to apply for strike out under Rules 8(2)(a) and 8(3)(c) of the Tribunal Procedure Rules. The appellant countered with allegations of abuse of process, claiming the Commissioner's case officer improperly used section 50(2)(c) to avoid issuing a decision notice despite apparent breaches of FOIA sections 10 and 16.

Judge Saward rejected these arguments, emphasising the fundamental distinction between the Commissioner's two possible responses under section 50. When the Commissioner decides not to investigate a complaint as frivolous or vexatious, no decision notice is issued under section 50(3)(b). Conversely, when proceeding with investigation, a decision notice must be served under section 50(3)(b).

Legal precedent affirmed

The judgement relied heavily on Dransfield v Information Commissioner [2020] UKUT 356 (AAC), where the Upper Tribunal definitively answered whether complainants can appeal the Commissioner's refusal to investigate vexatious complaints. The answer remains categorically negative.

Section 57(1) FOIA restricts tribunal appeals to cases "where a decision notice has been served." Without such notice, no statutory appeal route exists, regardless of whether the complainant believes a decision notice should have been issued.

Procedural considerations

The tribunal disposed of proceedings without hearing despite the appellant's Rule 32 request, determining sufficient information existed for decision-making. Judge Saward considered whether transfer to another court might be appropriate under Rule 5(3)(k)(i) but concluded the costs regime in judicial review proceedings made transfer inappropriate.

The appellant's 26-page response and supporting witness statement disputed the Commissioner's factual findings, particularly regarding receipt of the liability order. However, these challenges could not overcome the fundamental jurisdictional barrier.

Implications

This decision reinforces the Commissioner's gatekeeping function under FOIA section 50(2)(c). Where complaints are deemed frivolous or vexatious, the absence of decision notices prevents tribunal review, leaving judicial review as the primary challenge mechanism despite its higher costs and procedural barriers.

The judgement underscores the importance of distinguishing between substantive disagreement with the Commissioner's assessment and jurisdictional limitations preventing tribunal consideration of such disagreements.