Keith Gordon v Information Commissioner & Anor

1. This is an appeal against a Decision Notice (the “Decision Notice”) of the Information Commissioner (the “Commissioner”) dated 13 December 2024 (Reference IC-316420-K4N9) (the “Decision Notice”). The appeal is brought under s.57(1) of the Freedom of Information Act 2000 (“FOIA”).

2. This appeal concerns whether the Commissioner was correct to determine in the Decision Notice that HM Revenue & Customs (“HMRC”) had correctly relied on s.44(1) FOIA when responding to the Appellant’s request under FOIA dated 8 April 2024. The request concerned payments to the Access to Justice Charity over specified periods which HMRC had been ordered to pay in lieu of a costs order in litigation. Such orders are permissible under s.194 , s.194 A and s.194 B of the Legal Services Act 2007 .

3. The appeal was considered at an oral hearing which took place by CVP link. The Appellant attended in person. The Commissioner did not attend, having notified the Tribunal of this in advance. HMRC was represented by Mr Hanstock. The Tribunal was satisfied that all parties had an ample opportunity to advance their case at the hearing. We also had the benefit of written submissions from the Appellant, the Commissioner and HMRC which had been filed prior to the hearing. We were grateful for the constructive and helpful way the parties engaged with the issues at the hearing of this appeal.

4. During the hearing, there was a relatively brief closed session during which we heard from Mr Hanstock on behalf of HMRC and considered a closed witness statement from Mr Sutherland, HMRC’s Head of Information Rights. A gist of the closed session was provided to the Appellant and it was possible following the closed session to open up elements of Mr Sutherland’s closed witness statement. These open parts of the evidence were provided to the Appellant before we heard closing submissions from the parties. We were satisfied that these processes were fair and complied with the relevant authorities on closed procedure materials and hearings. Background to the Appeal

5. On 8 April 2024, the Appellant wrote to HMRC and made the following request under FOIA (the “Request”): “Please advise of the quantum of each of the following types of payment(s) (if any) made by HMRC (as set out in Table A) in each of the periods as set out in Table B. TABLE A • payments under section 194 of the Legal Services Act 2007 • payments under section 194 A of the Legal Services Act 2007 • payments under section 194 B of the Legal Services Act 2007 • in relation to each of the above three statutory provisions, payments agreed to be paid by HMRC without a formal order from the relevant court/tribunal (i.e. in anticipation of such an order and/or to compromise an application or proposed application for such an order) TABLE B • payments made in the period 1 April 2022 to 31 March 2023 • payments made in the period 1 April 2023 to 31 March 2024.”

6. HMRC responded to the Request on 7 May 2024. HMRC explained that the responses to four of these requests was zero, but withheld two further parts, relying on s.44(1) FOIA. HMRC maintained its position following an internal review on 25 June 2024.

7. The Appellant appealed to the Commissioner. In the Decision Notice, the Commissioner rejected the Appeal. In essence, the Commissioner was satisfied that providing the withheld information was justifiably withheld under s.44(1) FOIA because its disclosure was prohibited under ss. 18 and 23(1) of the Commissioners for Revenue and Customs Act 2005 (the “CRCA”). This was because the Commissioner considered “given the small amount of people the information relates to, the point of self identification is sufficient to meet the test at section 23(1)(b) of the CRCA” . That section prohibits the disclosure by HMRC of information held for its functions under FOIA where the disclosure would enable the identity of the person to whom the information relates to be deduced.

8. In his Grounds of Appeal dated 13 February 2025, the Appellant makes the following points: a. First, the Appellant says he does not know whether the “confidential information” is the identity of the recipients of the funds (even though he says there can be only one such recipient and that identity is in the public domain) or if it is the amount of the funds (even though he says that is not confidential information) or some other information that is allegedly confidential. b. Second, the Appellant challenges HMRC’s and the Commissioner’s interpretation of the CRCA. He says the withheld information concerns the receipt of a grant by a charity which is not a taxable receipt, and therefore the information cannot relate to a charity’s tax affairs. He says that the Commissioner’s decision may be flawed in this regard because the Commissioner did not see the withheld information.

9. HMRC filed its response on 12 March 2025. It opposes the appeal. In summary HMRC contends that: a. First, HMRC was able to lawfully disclose “nil” payments made in respect of pro bono costs awards to the Access to Justice Foundation under ss 194 , 194A and 194B of the Legal Services Act 2007 . However it could not disclose information where payments were made because it contended that this is prohibited by s.23(1) CRCA. This was because they “relate to a small number of persons and the disclosure of the quantum of those payments would enable the identity of the persons to whom the information relates to be identified….these are the individual tax payers subject to the litigation in which any costs awards were made.” b. Second, the withheld information was information which was about, acquired as a result of, or held in connection with the exercise of a function of HMRC in respect of the person – Gordon v IC and HMRC (“Gordon 1”). [2020] UKUT 92 (AAC) c. Third, it is irrelevant whether the identities of the individual taxpayers concerned are already in the public domain. The only question is whether the identity of a person is specified or could be deduced from the information. In this regard, it is not necessary for HMRC to demonstrate that the requester themselves (or any other person) would be in a position to identify the persons to whom the information relates. It is “merely necessary to show that a person (a legal entity) would be in a position to identify the person to whom the requested information relates. That includes self-identification ”. HMRC relied on the decision of the FTT in O’Shea v HMRC [2023] UKFTT 01005 (GRC) (“O’Shea”) at [15] in support of that proposition.

10. The Commissioner filed his response on 28 March 2025. The Commissioner opposes the appeal substantially for the reasons set out in the Decision Notice. The Commissioner clarified that it is the identity of the tax payers involved in the underlying litigation which would be able to be deduced should the withheld information be disclosed. Accordingly, the Commissioner contends that it is the identity of the taxpayers who are “the persons to whom the information relates” .

11. In his Reply dated 4 April 2025, the Appellant develops his grounds of appeal further. In summary: a. First, the Appellant developed his argument concerning a parallel case under FOIA which was before the Upper Tribunal concerning the scope of s.18 CRCA. This was whether the prohibition on disclosure in s.18 CRCA extended only to taxpayer information which was subject to a duty of confidence under the Marcel principle, or whether it was broader. b. Second, the Appellant contended that the withheld information would not relate to an identifiable person and therefore fall within the scope of s.23 CRCA. c. Third, the Appellant objected to HMRC’s reliance on the case of O’Shea since that judgment had not been widely published by the Tribunal. He contends that HMRC had a procedural advantage in this regard and that this amounted to procedural unfairness. Relevant Legal Principles The Role of the Tribunal

12. The Tribunal’s jurisdiction to consider this appeal is set out in s.58 FOIA. If the Tribunal considers that the notice against which the appeal is brought is not in accordance with the law or, if it involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner. In any other case, the Tribunal shall dismiss the appeal.

13. The Tribunal must consider whether the provisions of FOIA have been correctly applied and is not bound by the Commissioner’s views or findings but must arrive at its own view, giving such weight to the Commissioner’s views and findings as it deems fit in the particular circumstances - Guardian Newspapers & Brooke v Information Commissioner and BBC (EA/2006/0011 & 0013) at [14(3)]. The Relevant Statutory Provisions

14. There are two duties imposed on public authorities by s.1 FOIA. The first duty is to inform a requester whether a public authority holds information which has been requested. If information is held, the second duty is to provide that information to a requester. Both duties are subject to any relevant exemptions which may apply in Part II of FOIA. Some of the exemptions are qualified by a public interest balancing test (qualified exemptions); other are not so qualified (absolute exemptions).

15. The exemption relied on by HMRC in this appeal is s.44(1) FOIA. This is an absolute exemption. As relevant to this appeal, this provides that information is exempt from disclosure under FOIA if its disclosure other than under FOIA by the public authority holding it is prohibited by or under any enactment.

16. The statute which HMRC relies on is CRCA. The relevant provisions are s.18 , s19(2), s.23 and s.51(2) CRCA.

17. S.23 CRCA reads as follows: “23 Freedom of information (1) Revenue and customs information relating to a person, the disclosure of which is prohibited by section 18(1) , is exempt information by virtue of section 44(1) (a) of the Freedom of Information Act 2000 (prohibitions on disclosure) if its disclosure— (a) would specify the identity of the person to whom the information relates, or (b) would enable the identity of such a person to be deduced. (1A) Subsections (2) and (3) of section 18 are to be disregarded in determining for the purposes of subsection (1) of this section whether the disclosure of revenue and customs information relating to a person is prohibited by subsection (1) of that section. (2) Except as specified in subsection (1), information the disclosure of which is prohibited by section 18(1) is not exempt information for the purposes of section 44(1) (a) of the Freedom of Information Act 2000 . (3) In subsection (1) ‘revenue and customs information relating to a person’ has the same meaning as in section 19.”

18. S.19(2) CRCA defines “revenue and customs information relating to a person” as “…information about, acquired as a result of, or held in connection with the exercise of a function of the Revenue and Customs (within the meaning given by section 18(4) (c)) in respect of the person; but it does not include information about internal administrative arrangements of Her Majesty's Revenue and Customs (whether relating to Commissioners, officers or others).”

19. S.23(1) refers to information whose disclosure is prohibited by s.18(1) . The relevant parts of s.18 CRCA read as follows: (1) Revenue and Customs officials may not disclose information which is held by the Revenue and Customs in connection with a function of the Revenue and Customs. (2) But subsection (1) does not apply to a disclosure— (a) which— (i) is made for the purposes of a function of the Revenue and Customs, and (ii) does not contravene any restriction imposed by the Commissioners, (b) which is made in accordance with section 20 or 21.”

20. S.51(2)(a) CRCA defines a “ function ” under the CRCA as “any power or duty that is ancillary to another power or duty” . S.18(4) makes clear that for the purposes of s.18 , a reference to a function of the Revenue and Customs is a reference to a function of the Commissioners or an officer of Revenue and Customs Relevant Case Law

21. In Gordon 1, the Upper Tribunal had to consider the extent to which information held by HMRC about the costs of litigation with a taxpayer was exempt from disclosure under FOIA when read in conjunction with the CRCA. On the facts of that appeal, the Upper Tribunal held that that there was no error of law in the FTT’s decision which had concluded that the costs in relation to litigation conducted by HMRC were exempt from disclosure under s.44(1) FOIA read in conjunction with s.23(1) of the CRCA.

22. In reaching this conclusion, the Upper Tribunal (amongst other things): a. held that the correct approach was to consider whether the information requested consisted of or included information that is about, acquired as a result of, or held in connection with the exercise of a function of the Revenue and Customs in respect of a person , was not about internal administrative arrangements, and specifies the person’s identity or allows it to be deduced; and b. concluded that the language of s.19(2) CRCA was clear and not ambiguous. According, there was no need to have recourse to parliamentary debates in accordance with the rule in Pepper v Hart .

23. In O’Shea, the FTT considered whether information relating to a request for the largest ISA was exempt under s.44(1) FOIA. The specific issue was whether the disclosure of the value of the largest ISA was information whose disclosure would enable identification of that person. The request was simply for the “pot value”. The Tribunal accepted HMRC’s contention that “it is merely necessary to show that a person (a legal entity) would be in a position to identify the person to whom the requested information relates. This would also include self-identification.” It upheld HMRC’s reliance on s.44(1) FOIA in relation to the “pot value” of the largest ISA.

24. In Gordon v Information Commissioner and HMRC [2025] UKUT 159 (AAC) (“Gordon 2”) the Upper Tribunal considered a further appeal from the same parties to this appeal. The Upper Tribunal concluded that the general prohibition in s.18(1) CRCA was not confined to tax payer information subject to a duty of confidence under what is known as the Marcel principle. The Marcel principle, in essence, is the duty to use confidential information only for the purpose for which it was obtained and no other. The correct interpretation was the literal meaning of s.18(1) . The Tribunal also considered the scope of s.18(1) was neither obscure nor ambiguous and therefore there was no recourse to parliamentary debates under the rule in Pepper v Hart. Analysis and Conclusions

25. We have considered all of the materials before us, including the evidence and additional materials provided after the hearing from the parties. In essence, we consider there are four issues for us to determine on this appeal: a. First, whether the withheld information is information which is “revenue and customs information relating to a person” (the “First Issue”); b. Second, if so, do we need to consider whether the withheld information is “confidential”/ falls within the prohibition on disclosure in s.18(1) CRCA (the “Second Issue”); c. Third, whether the disclosure of the withheld information would enable the identity of the person to whom the information relates to be deduced (the “Third Issue”); and d. Fourth, whether there was any procedural disadvantage or unfairness to the Appellant in respect of the lack of public availability of the FTT’s judgment in O’Shea.

26. The First Issue was one which was not pursued by the Appellant at great length in the hearing of the Appeal. Indeed, at paragraph 10 of his Reply, he acknowledged that in Gordon 1, the Upper Tribunal had “concluded that information about the costs HMRC incurrent in respect of tax litigation is subject to the exemption, notwithstanding the fact that such information is not inherently confidential” . However, he sought to distinguish Gordon 1, on the basis that (a) it concerned HMRC’s costs, not the contribution made in lieu of a taxpayers costs and (b) the tax payer in question in Gordon 1 was known and identifiable.

27. In light of the decision of the Upper Tribunal in Gordon 1, which is binding on this Tribunal we are clearly satisfied that the withheld information, which concerns pro bono costs awards made against HMRC in litigation to which it has been a party is “revenue and customs information relating to a person” . The person is the taxpayer in the litigation. In this regard, we see no meaningful distinction between the type of information which was in issue in Gordon 1 and in this appeal. If anything, since the withheld information in this case concerns an award or awards made in lieu of a costs award had the tax payer litigant(s) not been represented pro bono , the withheld information in this appeal falls even more squarely within the scope of “ revenue and customs information relating to a person ”. We address the issue of identification, further below. Finally on the First Issue, and insofar as the Appellant’s argument is that the information must relate to the recipient charity’s tax affairs, this is beside the point. The charity is not the relevant person; it is the tax payer litigant. We accordingly reject this ground of appeal.

28. At the hearing of this appeal, and in his prior written submissions, the Appellant effectively acknowledged that the Second Issue had been determined by the Upper Tribunal’s decision in Gordon 2. Again, this Tribunal is bound by the decision in Gordon 2. We must give s.18 CRCA a literal meaning. Recourse to parliamentary debates is not permitted within the scope of the rule in Pepper v Hart . The correct approach to s.18 CRCA is not to consider whether the withheld information is confidential as a matter of law. Gordon 2 makes clear that this approach is not correct. The withheld information may or may not be confidential as a matter of law, but that is not an issue which we need to determine to consider whether the restriction in s.18(1) CRCA is engaged. Accordingly, we must also reject this ground of appeal.

29. The focus of the hearing of this appeal concerned the Third Issue. While we must necessarily address the factual basis for our conclusions in the closed judgment which accompanies this open decision, we can state our conclusions on the law in open, insofar as they are necessary to resolve this appeal. In this regard: a. We consider the language of s.23(1) CRCA to be relatively broad in scope. There are two alternative ways it can be engaged. First, where the information to be disclosed “would specify” the identity of the person to whom it relates – i.e. identification can be achieved on a purely intrinsic basis. Second, alternatively, where the information would “enable the identity of such a person to be deduced” . This clearly permits extrinsic information to be used to achieve identification, although we consider that it would require actual identification, not potential identification. b. In his Reply, the Appellant posits the scenario where information is aggregated – i.e. it relates to two individuals. He says even those two individuals themselves would not be able to identify their respective contributions. Ultimately each case will turn on its own facts as to identification. However, in the broad terms which it is posited by the Appellant, we reject this approach. There may be in any particular circumstances, a host of information in the public domain which may lead to such identification of individuals even from aggregated information. Again, while addressing the issue at a certain degree of generality, there is clearly merit in the proposition that the smaller the cluster of individuals, the greater the likelihood of identification there may be of specific individuals within a group. However, much will depend on the homogeneity of the class and the nature of the identificatory facts. In this regard, we agree with the appellant that the “ relevance of aggregated information relating to multiple persons must depend on the circumstances .” Indeed, we did not understand that HMRC disagreed with this as a basic proposition. HMRC’s position is that whether aggregated information will lead to identification is “a question of fact and degree” . HMRC have accepted in this case that the issue of identification arises because of the “small number” of persons to whom it relates. c. An alternative argument raised by the Appellant is that a response under FOIA which simply provides a figure for the amounts paid to the Access to Justice Charity does not identify any individuals. We accept that this would not engage s.23(1)(a) CRCA because there is not intrinsic information which permits identification. However, s.23(1)(b) CRCA is the statutory provision relied on by HMRC; that clearly permits consideration of extrinsic information leading to jigsaw identification to be considered. Indeed, to only consider the answer, and not the question could lead to perversity in any given scenario. d. In addition, in this case we are concerned with costs award made in litigation involving HMRC. As a general proposition, such litigation takes place in accordance with the open justice principle, with public hearings and with published judgments. In any hypothetical scenario, the precise facts of which will need to be applied in each case (rather than on a blanket basis), there may well be a significant range of extrinsic information which allows information relating the identity of the taxpayer in question to be deduced. Indeed, on a simplistic level, arguably the more extrinsic information which exists, the greater the likelihood of such identification. e. There is an interesting issue which has been raised on some of the arguments before us as to whether self-identification by the individual tax payer themselves would suffice to engage s.23(1) CRCA. This was the conclusion reached by the FTT in O’Shea, albeit their judgment does not record the reasons for their conclusion on this issue. On the facts which arise in this case, we do not need to decide it. However, we can certainly see that it is a possible interpretation of s.23(1) CRCA which may arise in particular scenarios. In light of our conclusion on the facts of this case, we express no further view on it. f. Finally in relation to the issue of identification, the Appellant has raised a number of situations where, through press releases generally accompanying deadlines for filing self-assessment, HMRC has published information which is arguably identifying of various tax payers (including potentially to themselves), for example in respect of the “top 10 most bizarre excuses and questionable expenses claims for items” or the number of individuals who completed their self assessment tax returns on Christmas Day (4,409 in December 2024). The Appellant suggests that this contradicts HMRC’s position in this appeal. We consider this argument to be without merit. This is because s.18(1) is subject to a broad variety of exemptions in s.18(2) and (3) which permit HMRC to disclose information for various specified purposes. In contrast, the limits on the restrictions provided for in ss.18(2) and (3) are expressly not to be taken into account under s.23(1) FOIA by virtue of s.23(1A) CRCA. The result is that HMRC can disclose information where a statutory gateway permits it, even if such disclosure would not be permitted under FOIA. That is the way the statutory scheme has been set out.

30. In conclusion on the Third Issue, we have considered the nature of the withheld information in closed as against all the points raised by the Appellant in this appeal, including in relation to identification. For the reasons we set out further in closed, we are satisfied that disclosure of the withheld information would engage s.23(1)(b) CRCA because, for the purpose of the Third Issue specifically, its disclosure would enable the identity of the person(s) to whom it relates to be deduced.

31. Finally, we address the Fourth Issue relatively briefly. We do not consider there is any procedural disadvantage on the Appellant from HMRC’s citation of O’Shea of the type which concerned the FTT in Ardmore Construction Ltd v Revenue and Customs Commissioners [2014] UKFTT 453 (TC) . Accordingly there is no merit in this ground of appeal. This is for five reasons: a. First, because we see no equivalence between decisions of the FTT and decisions of the Special Commissioners which were in issue in Ardmore. They are materially different. b. Second, because, the Appellant has had the decision of the FTT in O’Shea for many months and has been able to address it in his submissions. The Appellant is a highly experienced tax specialist who is also experienced in the interaction of the relevant tax provisions with FOIA – see e.g. Gordon 1 and Gordon 2. His preparation has not been hampered in any meaningful way by HMRC’s reliance on this decision which we consider to be entirely proper. There are a number of decisions of the FTT (and previously the Information Tribunal) which due to the mechanics (which have varied over time) concerning publication may not always be publicly available, but that does not render their citation improper or procedurally unfair. c. Third, because the FTT’s decision in O’Shea has no binding precedential value. d. Fourth, because, while we have considered the decision in O’Shea with considerable respect in light of the substantial experience and expertise of the Panel which heard that appeal, we do not think it assists in resolving this appeal. The Tribunal in O’Shea gave no meaningful reasoning for its adoption of HMRC’s position that “self-identification” would be sufficient to engage s.23(1)(b) CRCA. Accordingly, we can place no weight on it in reaching our own conclusions. d. Fifth, as we have already set out above, we consider that on the facts of this case, we do not need to decide the self-identification issue as a matter of law.

32. Accordingly, we have concluded that there was no error of law in the Decision Notice and the Commissioner was correct to conclude that HMRC was entitled to rely on s.44(1) FOIA in withholding the information which it did in response to the Request. We unanimously dismiss the appeal. Signed Date: Judge Scherbel-Ball 22 February 2026