We need to talk about open justice in the Information Rights jurisdiction of the First-tier Tribunal.
The Tribunal has just handed down a decision rejecting an appeal by the National Archives against a decision by the Information Commissioner’s Office that it had to disclose information about its handling of requests to close (or “reclose”) certain files. Remarkably, the Tribunal (like the ICO before it) gives no detail whatsoever about what the files relate to, referring to them as “Matter 1” and “Matter 2”, despite noting that it had
concerns that the [National Archives] seems to be seeking to withhold from disclosure the very existence of Matter 1 and Matter 2. It appears to us that the Appellant does not want to disclose the fact that Matter 1 and Matter 2 exist
For those who wish to know, the nature of the matters in the closed files (two foul crimes) can be readily seen on the National Archives own published spreadsheet.
But, furthermore, a witness statement was given by the Director for Public Records Access and Government Services at the National Archives. This is undoubtedly a role of some seniority. Yet the Tribunal says “It is not necessary for us to identify this witness by name in this decision (or in the Closed Annex) – therefore we merely refer to them as “the witness””.
There is no indication at any point that either the nature of Matters A and B or the name of the witness were subject to an order under rule 14 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.
With all due respect to the Tribunal and its members, in handing down an open judgment, it is handing it down to the public, as much as to the parties. In Lord Hewat’s famous (and original) formulation: “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
Of course I’m not saying that justice has not been done here, and I do recognise that the Tribunal did actually order disclosure of the internal discussions about the closure of the files. But that’s not the point, and while it’s important that the public can understand what is going on (and it’s notably difficult to do so from this judgment) it should be remembered that openness of the proceedings is the general principle, and any derogation needs to be justified. In Scott v Scott, Lord Shaw said “publicity in the administration of justice” was “one of the surest guarantees of our liberties.
I realise I’m exercising some hyperbole in referencing these landmark cases in a post about the withholding of minor information in a minor decision by a tribunal. But that’s the point of important principles like the principle of open justice: they apply to the small things as much as the large ones.
The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.
informationrightsandwrongs 