Laura Furbacher v The Information Commissioner

Neutral citation number: [2026] UKFTT 00162 (GRC) First-tier Tribunal (General Regulatory Chamber) Information Rights Case Reference: FT/EA/2025/0443 Decided without a hearing Decision given on: 3 February 2026 Before JUDGE HARRIS Between LAURA FURBACHER and THE INFORMATION COMMISSIONER Appellant Respondent Decision: The appeal is struck out under Rule 8(3)(c) because there is no reasonable prospect of it succeeding. REASONS 1. This appeal concerns a Decision Notice issued by the Information Commissioner (“IC”) dated 5 November 2025, reference IC-365780-S8F4. 2. The Appellant made a request to the London Borough of Barking and Dagenham (“the Council”) on 15 August 2024 seeking information about the “Homes for Ukraine” initiative, including a copy of any audit reports of the programme. The Council had disclosed some information in relation to the request, but withheld a copy of the audit report (the “audit report”) on the basis of sections 36(2)(b)(i) and 36(2)(c) (effective conduct of public affairs) of the Freedom of Information Act 2000 (“FOIA”). 3. In the Decision Notice, the IC decided that the audit report is exempt on the basis of the exemptions cited, but that the public interest only favours maintaining these exemptions for some parts of the report. Accordingly, the IC required the Council to provide the Appellant with a copy of the audit report with three specified parts redacted. © CROWN COPYRIGHT 2025 4. The Appellant submitted this appeal to the Tribunal on 2 December 2025. 5. On 18 December 2025, the IC submitted a response to the appeal and also submitted an application to strike out the appeal (the “strike-out application”). The grounds on which the IC sought to strike out the appeal was that under Rule 8(3)(c) it is academic and an abuse of process. In support of the application the Respondent referred to his response, particularly paragraphs 32 and 33. In summary, the reason why the Respondent says the appeal is academic is because the Appellant has received a copy of the withheld internal audit report held at the time of the request in separate employment law proceedings. 6. The IC relied on the decision of this Tribunal in Edward Williams v ICO and the University of Southampton [2024] UKFTT 00637 (GRC) paragraphs 20 to 25 which read as follows: “20. The appellant submits that I have no power to strike out an appeal simply because the disputed information has been provided. He submits that the tribunal has no jurisdiction to consider such an application. I gave detailed reasons for why I concluded that I had the power to strike out an appeal for abuse of process in my order of 20 June 2023. I repeat those reasons here. 21. The Court of Appeal decision in Shiner, Sheinman v The Commissioners for HM Revenue and Customs [2018] EWCA Civ 31 considered the power of the First-Tier Tribunal to strike out for an abuse of process under the Tribunals Courts and Enforcement Act 2007 (TCEA 2007) and the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (‘the Tax Chamber Rules’). The relevant rules are identically worded in the GRC Rules and the Tax Chamber Rules. It is helpful to set out the following section of the Court of Appeal’s judgment which deals with the jurisdiction of the First-Tier Tribunal to strike out the grounds of appeal as an abuse process: “Jurisdiction to strike out 13. The first question raised by the appeal is whether the First-tier Tribunal has power under its rules to make an order striking out some of the grounds of appeal as an abuse of process even assuming that issue estoppel or abuse of process has any application in relation to a tax appeal. It is common ground that the First-tier Tribunal is a statutory tribunal with no inherent jurisdiction. It exists to perform the functions conferred on it by the Tribunals, Courts and Enforcement Act 2007 (“TCEA 2007”) and other statutes: see TCEA 2007 s.3(1). Its powers must be found in TCEA 2007 and the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (“the Rules”) made under the power conferred by s.22. 14. Section 22 provides for the making of rules by the Tribunal Procedure Committee. Section 22(4) provides: “(4) Power to make Tribunal Procedure Rules is to be exercised with a view to securing— (a) that, in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done, (b) that the tribunal system is accessible and fair, (c) that proceedings before the First-tier Tribunal or Upper Tribunal are handled quickly and efficiently, (d) that the rules are both simple and simply expressed, and (e) that the rules where appropriate confer on members of the First-tier Tribunal, or Upper Tribunal, responsibility for ensuring that proceedings before the tribunal are handled quickly and efficiently.” 15. So far as material, the Rules now in force provide: “2. -(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly. (2) Dealing with a case fairly and justly includes— (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties. (b) avoiding unnecessary formality and seeking flexibility in the proceedings (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings. (d) using any special expertise of the Tribunal effectively; and (e) avoiding delay, so far as compatible with proper consideration of the issues (3) The Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules; or (b) interprets any rule or practice direction (4) Parties must— (a) help the Tribunal to further the overriding objective; and (b) co-operate with the Tribunal generally. 5-(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure. (2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction… 8-(1) The proceedings, or the appropriate part of them, will automatically be struck out if the appellant has failed to comply with a direction that stated that failure by a party to comply with the direction would lead to the striking out of the proceedings or that part of them. (2) The Tribunal must strike out the whole or a part of the proceedings if the Tribunal— (a) does not have jurisdiction in relation to proceedings or that part of them; and (b) does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them. (3) The Tribunal may strike out the whole or a part of the proceedings if— (a) the appellant has failed to comply with a direction which stated that failure by the appellant to comply with the direction could lead to the striking out of the proceedings or part of them (b) the appellant has failed to co-operate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly and justly; or (c) the Tribunal considers there is no reasonable prospect of the appellant's case, or part of it, succeeding…. 16. Mr McDonnell submits that although it may be possible to imply a power to strike out as part of the Rules, the circumstances in which that is possible are very limited. It is necessary to show that the implied power can be treated as part of the tribunal’s function to regulate its own procedure in order to carry out its statutory objective: see R (on the application of V) v Asylum and Immigration Tribunal [2009] EWHC 1902 (Admin) at [27]. Tribunals do not have an open-ended power to regulate their own procedure. 17. Because Rule 8(3) gives the First-tier Tribunal an express power to strike out part of the proceedings on specified grounds, there is, Mr McDonnell says, no room for any further implied power to strike out on other more general grounds. This is reinforced by a consideration of the function of the First-tier Tribunal which is to determine statutory tax appeals and to reach a conclusion on the correct amount of tax payable. Once an appeal is made under s.31 TMA 1970 the First-tier Tribunal must determine it either by upholding the assessment or by reducing or increasing it: see TMA 1970 s.50. It has, he says, a duty to determine the tax payable which differentiates tax appeals from ordinary civil litigation between private parties 18. To strike out part of an appeal is also, Mr McDonnell says, a drastic step because it deprives the taxpayer of the opportunity of raising his arguments against a background of all the relevant facts. Unless the circumstances are exceptional, it carries with it the risk of denying the taxpayer a fair hearing. It is therefore a power which (if it exists) should only be exercisable in very limited circumstances 19. The need to exercise caution in relation to any power to strike out proceedings prior to a full hearing is obvious. But it is a consideration which goes to the exercise of the power rather than to whether such a power exists. The Upper Tribunal in its decision at [55] did not take Mr McDonnell to have submitted that there was no power to strike out for abuse of process but in any event, in my view, the power contained in Rule 8(3)(c) is wide enough in its terms to include a strike out application based on those grounds. Such an application, if successful, would result in the First-tier Tribunal concluding that the relevant part of the appellant’s case could not succeed. A power to strike out could also be said to be part of the power of regulation by the First-tier Tribunal of its procedure under Rule 5(1) (which was the view of the Upper Tribunal), but Rule 8(3)(c) is enough. There is no need to imply a power. It is worth observing that the equivalent provision in CPR 3.4(2) separates out a case where a statement of case discloses no reasonable grounds for bringing or defending the claim from a case where the statement of case is an abuse of the court’s process. But for the First-tier Tribunal the Tribunal Procedure Committee has chosen a different but composite criterion of no reasonable prospect of success, which is wide enough to cover appeals which are legally hopeless as well as appeals which can be said to amount to an abuse of process. There is in my view express power to strike out on both grounds.” 23. In my view, the reasons given by the Court of Appeal in paragraph 19 are equally applicable to this First-Tier Tribunal and the GRC Rules and on that basis I conclude that I have the power to strike out a claim, or part of a claim, if I conclude that it is an abuse of process because the power under rule 8(3)(c) to strike out claims for no reasonable prospect of success is wide enough to cover claims that amount to an abuse of process. 24. I do not need to consider whether the First-Tier Tribunal was correct to conclude in Edwards v Information Commissioner UKIT (EA/2010/0056) that rule 2(2) read with rule 5(2) gives the Tribunal the power to dispose of proceedings that are academic. There is no need to imply such a power because rule 8(3)(c) is enough.” 7. The IC further submits that whilst the Appellant obtained the withheld internal audit report subsequent to the request for information (some months later) during the course of separate private employment law proceedings, rather than a disclosure under FOIA, the threshold is met warranting the striking out of this case as an abuse of process. This is on the basis that the appeal is academic given that the Appellant has obtained the information she requested, the Council was in any event ordered to disclose some information to satisfy the public interest, and the striking out of this appeal would not set any precedent in respect of any requests for similar information in the future. Ultimately the IC does not consider it to be a proportionate use of either his, or this Tribunal’s limited public resources (and indeed Upper Tribunal if it were to proceed to that level) in preparing and considering this matter in such circumstances where the Appellant already has the information sought. He also adds that this was the only information held within the scope of the request, at the time of the request. Accordingly, if the Appellant’s objective is to obtain any subsequent reports, as appears to be indicated in the outcome of appeal section of the notice of appeal, then the Tribunal will not have the jurisdiction to consider any such subsequent reports, if held. 8. The Appellant provided a response to the strike-out application dated 10 January 2026, so I am satisfied that the Appellant has had an opportunity to make representations on the proposed striking out under rule 8(4). The points made by the Appellant, in summary, were as follows: a. She accepts that she holds two versions of the document, an unredacted one disclosed during Employment Tribunal (“ET”) proceedings and a heavily redacted version disclosed under FOIA, which are materially different. She argues that the version of the audit report which was disclosed by the Council redacts a number of sections which goes beyond what was required in the Decision Notice. She submits that the Council has not complied with the Decision Notice. b. Disclosure in ET proceedings is not FOIA disclosure because there are restrictions on its use, it is not disclosure to the world at large and does not satisfy FOIA rights. The Appellant argues that such disclosure cannot render the appeal academic. c. The IC’s correspondence dated 17 December 2025 suggests the Decision Notice has not been complied with and enforcement remains under consideration. d. The IC’s investigation was incomplete and flawed because he did not obtain or review the full audit report, the IC accepted the Council’s assertions without scrutiny and the IC’s assessment of the public interest relied on the Council’s description of the report and assertions about sensitivity. e. The appeal raises issues of public importance because the audit report concerns public expenditure, safeguarding of Ukrainian refugees, administration of a central government scheme and financial controls over £1.7 million, so should not be lightly struck out. f. The appeal challenges the completeness of the IC’s investigation, the correctness of the Decision Notice, the Council’s non-compliance, the lawfulness of the redactions and the existence of two different versions. The Appellant argues that these are substantive issues with clear merit and cannto be resolved summarily. Discussion and conclusions 9. The first question is whether this Tribunal has the power to strike out an appeal as academic and/or an abuse of process. Applying paragraph 19 of Shiner, I consider that it does have the power to do so, because, as the Court of Appeal found, the formulation of no reasonable prospect of success in Rule 8(3)(c) “is wide enough to cover appeals which are legally hopeless as well as appeals which can be said to amount to an abuse of process. There is in my view express power to strike out on both grounds.” 10. The next question is whether the appeal is academic and/or an abuse of process. An abuse of process occurs where the court’s processes are being misused in a way that is unfair or unjust. In Hunter v Chief Constable of the West Midlands Police [1982] AC 529, Lord Diplock emphasised that the court has an inherent jurisdiction to prevent its procedures being used for purposes for which they were not intended. 11. The reasons why the Appellant has brought the appeal, set out in paragraph 4.6 of her response to the strike out application, encompass a number of aspects which do not fall within the ambit of this Tribunal. In an appeal under section 58 of FOIA the Tribunal is only considering whether the Decision Notice which was issued by the IC was made in accordance with the law, or, to the extent that it involved the exercise of a discretion, that discretion ought to be exercised differently. The Appellant’s challenge to the way in which the IC applied the public interest test in relation to the exemption in section 36 of FOIA potentially does fall within this scope. However, challenging the way in which the IC investigated the matter and the extent of its investigation or the way in which the Council responded to the Decision Notice including the redactions does not fall within this; the former at least would be a matter for judicial review in the Administrative court. Similarly, the fact that the Appellant is aware of two different versions of the document sought is not a matter which goes to the lawfulness of the Decision Notice and would not fall to be determined by this Tribunal. 12. Having narrowed down the matters in respect of which this Tribunal potentially does have jurisdiction to a potential valid challenge to the IC’s application of the public interest test, I then need to consider the purpose which allowing the appeal to continue would achieve, in order to determine whether it is academic and/or an abuse of process. 13. The purpose of the Appellant’s initial request was to obtain a copy of the audit report. The Appellant has already obtained an unredacted copy of the audit report through her ET proceedings and the Council has disclosed a redacted copy of the audit report. The purpose of the request has been served, as the Appellant has the full and unredacted information sought. I consider that this renders the appeal academic and that it is an abuse of process because having now obtained the information which she seeks, the Appellant seeks to use the Tribunal process for purposes for which it was not intended. Even if the Appellant was to successfully challenge the lawfulness of the Decision Notice, the outcome of the Tribunal would simply be to provide her with information she already possesses. Applying the overriding objective, it appears to me that it cannot be a proportionate or fair use of the Tribunal or parties’ resources to go through the process for an outcome which is, in effect, redundant. I therefore agree with the IC’s submission on this point. 14. The Appellant argues that her use of the unredacted report obtained through the ET is restricted and that this does not satisfy her rights under FOIA. I disagree with this, because the right to information set out in FOIA section 1(1) simply states that “Any person making a request for information to a public authority is entitled (a)to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b)if that is the case, to have that information communicated to him.” It is silent as to the use which a person may make of information so disclosed. 15. While the case of Edward Williams is not binding on this Tribunal as it is one of its own decisions, it is persuasive. I consider that the circumstances in that case were analogous to the current appeal in that the appellant already had the information sought. 16. For all these reasons, I consider that the appeal is academic and an abuse of process and ought properly to be struck out under Rule 8(3)(c) as having no reasonable prospect of success. Signed: Judge Harris Date: 30 January 2026 7