The Court of Appeal has dismissed Patrick McGreal’s appeal against a High Court decision upholding the Information Commissioner’s handling of his request for records from Westmeath County Council (WCC). The appeal concerned access to housing records under the Freedom of Information Act 2014, not the merits of WCC’s decision about his housing assistance payment (HAP).
McGreal sought an increase to his HAP in 2022, which WCC refused. After appealing that decision, he requested his housing file and records about his application and the withdrawal of the increase. WCC initially supplied his housing application and HAP files. Following further steps during the review process, it released 280 additional records on 15 December 2022.
The Information Commissioner’s Office later told McGreal that WCC had confirmed no further relevant records existed or could be found after reasonable searches. The Commissioner invited him to consider withdrawing his review application. He did not respond to that invitation, and on 3 March 2023 the Commissioner issued a binding decision upholding WCC’s decision under section 15(1)(a) of the Act. That section allows refusal where a record does not exist or cannot be found after reasonable steps.
The High Court dismissed McGreal’s appeal in January 2024. The Court of Appeal said his appeal advanced a new argument about the Commissioner’s powers under section 22, which had not been raised in the High Court. It held that the argument could not be introduced for the first time on appeal in this case. It also found that section 22(9)(a), on which McGreal relied, concerns refusing or discontinuing a review and did not apply because the Commissioner had completed the review.
The appeal court said that later disclosure of records does not automatically invalidate earlier decisions or require the review process to start again. The Commissioner’s review considered records disclosed up to the date of the binding decision. The court said the Commissioner had jurisdiction to make the decision he made, and it was at least arguable that WCC had taken reasonable steps when its original decision was made, even though further records later emerged. It found McGreal had shown no flaw in the conclusion that WCC had no further records to disclose.
The Court of Appeal therefore dismissed the appeal. The judge’s provisional view was that the Commissioner should receive the appeal costs. McGreal was given 14 days to submit written reasons opposing that proposed costs order, with the Commissioner then having a similar period to respond. The judgment does not record a final costs order.