Category Archives: access to information

February 5, 2025 · 8:04 am

Is information held by external solicitors “held” for the purposes of FOIA?

[reposted from my LinkedIn account]

Where an external solicitor’s firm holds information in relation to advice given by the solicitor on instructions by a public authority client, is the information held by the solicitor “on behalf of” the public authority, for the purposes of section 3(2)(b) of the Freedom of Information Act 2000?

While the matter is live, the answer is probably “yes”, but what if the public authority client has long since destroyed its own records, but the solicitor’s firm has retained its records for its own regulatory or risk purposes? Here, the answer is probably “no”.

And that is the situation which came before the Information Tribunal recently. The requester was seeking information from Sheffield City Council about a development scheme from 2007/2008. The Council had said that it would have destroyed its own records, and said that to determine whether the information was held would necessitate the inspection of 28 box files held by law firm Herbert Smith Freehills, who had been instructed by the Council at the relevant time. To even determine whether the information was held or not would exceed the costs limits in section 12 of FOIA. The ICO, in the decision notice being appealed, had agreed.

As I was reading the first few paragraphs of the Tribunal judgment, I said to myself “hang on – is this info being held by HSF on behalf of the Council, or is it being held for HSF’s purposes?” I was limbering up my fingers to write a post criticising everyone for not spotting this, so I was then pleased to see that the Tribunal, of its own volition, identified it as an issue and sought submissions from the ICO and the Council on it.

After some back and fro (it is not entirely clear from the judgment who said what in their submissions, and there was a side issue as to whether in fact the Environmental Information Regulations applied) the evidence was pretty clear that the Council had had no intention to retain the information, nor to entrust it to HSF. Accordingly, the information was not “held” for the purposes of FOIA.

I’m not sure I understand why the Tribunal did not substitute a different decision notice to reflect this (it simply dismissed the requester’s appeal), but ultimately nothing really turns on that.

What one can take from this is that solicitors and their clients (especially public authority clients) should, jointly and separately, make clear in agreements and policies what the status is of information retained by solicitors after an instruction has ceased, and how requests for such information should be dealt with.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under access to information, Environmental Information Regulations, Freedom of Information, Information Commissioner, Information Tribunal, judgments

Tagged as , ,

February 4, 2025 · 6:15 am

NHS England and publication of the Calocane report

[reposted from my LinkedIn account]

[Edited to add: the day following the upload of this post NHS England did an about turn, and published the report in full, saying “The NHS has taken the decision to publish the report in full in line with the wishes of the families and given the level of detail already in the public domain”]

NHS England is reported to be refusing, partly on data protection grounds, to publish the full independent review report into the care and treatment of Valdo Calocane prior to his manslaughter of three people in Nottingham in 2023.

The report is said to be over 200 pages long, and although a summary will be published, families of the victims are calling for the full report (which they only saw after pressure from their lawyers) to be published on public interest grounds, saying “we have grave concerns about the conduct of the NHS”.

So does data protection law prevent disclosure?

The report will clearly contain details of Calocane’s health, and as such it constitutes a special category of personal data, requiring a condition for processing from Article 9 of the UK GDPR. The most likely candidate would be Article 9(2)(g):

processing is necessary for reasons of substantial public interest, on the basis of domestic law….

The domestic law provisions referred to are contained in schedule 1 to the Data Protection Act 2018. And at first glance, it is not straightforward to identify a provision which would permit disclosure.

However, paragraph 11 potentially does. It deals with processing which is necessary for a “protective function”, must be carried without the consent of the data subject so as not to prejudice that protective function and which is necessary for reasons of substantial public interest. A “protective function” includes a function which is intended to protect members of the public against failures in services provided by a body or association.

Reports into homicides by patients in receipt of mental health care are commissioned by NHS England under the Serious Incident Framework “Supporting learning to prevent recurrence”, and this says that “publication of serious incident investigation reports and action plans is considered best practice”, although “reports should not contain confidential personal information unless…there is an overriding public interest”.

I’m not saying it’s a straightforward legal question, as to whether the report can be published, but an argument can be made that there is a substantial, overriding, public interest in disclosure in order that the public can be aware of any failings and understand what actions are being taken to address them. No doubt though that NHS England’s argument would be that this is achieved by publication of the summary report.

I imagine, in any case, that freedom of information requests will be made for the full report, so ultimately we may see the Information Commissioner’s Office, and maybe the courts, rule on this.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under access to information, Data Protection, Data Protection Act 2018, NHS, UK GDPR

Tagged as ,

January 28, 2025 · 6:20 am

Closed MI5 material in the Information Tribunal

You don’t know what you don’t know.

A recent judgment in the Information Tribunal is a good example of this platitude in the context of access to information held by public authorities.

The applicant had asked MI5, under the Environmental Information Regulations 2004 (EIR) for information on its CO2 emissions (by reference to the Greenhouse Gas Protocol). MI5 refuse to disclose in reliance on the exception to disclosure at regulation 12(5)(a), on the grounds that disclosure would adversely affect national security. This refusal was upheld by the Information Commissioner’s Office.

Perhaps unsurprisingly, the applicant was sceptical. The judgment notes that

she said that MI5 had not demonstrated a causal link between the disclosure of the information and the claimed adverse effect of that disclosure; MI5 had not provided any evidence that the adverse effect of disclosure was more likely than not to occur. She described the position of MI5 to be based on assumptions and that they had overlooked the difficulty of inferring accurate information from emissions data

The Information Tribunal can, though, consider closed material in EIR and FOI processing (ie information and evidence which the applicant cannot see/hear). And in this case, MI5 adduced closed evidence, in the form of “damage assessments” which

included submissions as to how the emissions data could be used and the nature of the conclusions that could be drawn from those data, whether analysing the data alone, by also using data in the public domain or by using comparators” and “identified stark and very accurate conclusions that could be drawn from the raw data itself with simple calculations

In the face of such evidence, the Tribunal inevitably dismissed the applicant’s appeal.

The judgment is well worth reading as an illustration of how the closed material procedure works.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

1 Comment

Filed under access to information, Environmental Information Regulations, Information Tribunal, national security

Tagged as ,

December 14, 2024 · 9:52 am

Disclosing details of successful candidates from jobs

[reposted from my LinkedIn account]

Jones v Secretary of State for Health And Social Care [2024] EWCA Civ 1568

A question for data protection advisers. If you are asked by an unsuccessful candidate for a job what the age, gender and ethnic origin of the successful candidate was, do you disclose? (And what is your Article 6 basis and Article 9 UK GDPR condition for doing so?)

These questions are prompted by an interesting employment case in the Court of Appeal.

The appellant, who self-describes as black Caribbean, interviewed for a business development role at Public Health England (PHE) on 28 March 2019 but was not told, despite chasing, until 3 July 2019 that he had been unsuccessful. This was already outside the primary three month limitation period for bringing a claim in the employment tribunal (ET).

He then asked PHE for “age, gender and ethnic origin” of the successful candidate, and explained he needed to information to decide whether or not to make a claim in the ET.

It is not entirely clear what then happened: it’s suggested that PHE initially refused, but told the claimant he could make an FOI request, and there is also a suggestion that he was told that if he provided proof of his identity they would provide the information. In any event, he was not informed until much later in the proceedings that the successful candidate was white British.

His ET claim for discrimination was, therefore, submitted out of time. The ET can only extend the time for such a claim where it is “just and equitable” to do so, and, here, the ET held that it was not: he put off making his claim “because he was on an information gathering exercise. He was looking for the evidence to bolster his claim…Despite the Claimant’s criticisms, the respondent did in fact provide him with information and an explanation of its actions quite early on in the chronology. It gave him enough information to know that there was a claim for him to make if he wanted to present it to the Tribunal”. And, in any case, the ET dismissed the claim on its merits.

On appeal to the Employment Appeal Tribunal (EAT) the claimant submitted that it had been perverse of the ET to refuse to exercise its discretion to extend the time for making the application, but the EAT held that the ET had made no error of law in that regard.

The Court of Appeal felt differently; it was wrong for the ET to have held that the claimant had had, much earlier, the “raw materials” on which to formulate his claim, and it although it was correct that he was looking for information to bolster his claim, this ought not to have been held against him. “The information he was seeking about the ethnicity of the successful candidate was an essential part of his claim”.

Accordingly, the ET’s decision not to extend time under the “just and equitable” test was perverse, and the order of the EAT to uphold that decision was set aside, and the case on merits was remitted to the EAT.

And I guess my answer to my own questions at the start of this post would be: one or both of Articles 6(1)(c) and 6(1)(f), and Article 9(2)(f). But in all those cases, it’s going to be difficult for the controller to make the appropriate call on whether the request for information means that it’s necessary to make the disclosure, or whether it’s just a frivolous or aimless request.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under access to information, Data Protection, employment, judgments

Tagged as ,

December 5, 2024 · 5:57 am

FOIA costs decision against applicant for failing to withdraw contempt application

A freedom of information requester is facing costs in what seems to have been a bit of a shambles before the First Tier Tribunal (FTT). I think this is rather concerning, albeit slightly convoluted, and, frankly, the whole thing is not assisted by a judgment that is strewn with errors and lacks coherence. In what follows I’ve had to piece together some of the information missing, or unclear, from the judgment.

It appears that the requester (AHB) had made a Freedom of Information Act 2000 (FOIA) request to the Royal Mint on 19 June (not July, as the FTT judgment says) 2021 for information about its “Garbled Coin Policy” in relation to repatriated UK currency. On 16 July 2021 The Royal Mint replied with what appears to have been a short narrative response. AHB complained to the Information Commissioner (ICO) on 28 September 2021, and ten months later the ICO held (very peremptorily, and rather oddly, I would say) that the Royal Mint held no information in relation to the original request.

AHB then appealed to the FTT and in a judgment of 3 October 2023 (the “2023 judgment”) the FTT held that the ICO had either or both erred in law, or in the exercise of his discretion, because the Royal Mint held further information in relation to the request. It issued a judgment constituting a substitute decision notice (SDN), under which the Royal Mint was ordered to issue a fresh decision within 35 days of the date on which the SDN was promulgated. The judgment specifically says “Failure to comply with this decision may result in the Tribunal making written certification of this fact pursuant to section 61 of the Freedom of Information Act 2000 and may be dealt with as a contempt of court”. The Royal Mint had chosen not to join itself to those proceedings and neither AHB nor the ICO had applied for it to be joined.

It is not at all clear, from the judgment, what happened next, but it appears that the SDN, with its Order that the Royal Mint issue a fresh response, was not served on the Royal Mint itself (presumably this error arose from its not having been a party, although it was aware of the proceedings). Then, on 9 December 2023, having received no fresh response, and no doubt taking his cue from the SDN, AHB made an application to the FTT under section 61(4) of FOIA for the Royal Mint to be certified to the Upper Tribunal for contempt of court.

It appears that the FTT finally served the SDN on the Royal Mint on 22 December 2023 (the judgment at several points has this as the obviously impossible “22 December 2024”).

One assumes, at this point, that, although the SDN was not served on the Royal Mint until the time of 35 days from 3 October 2023 had already passed, the Order in the SDN still had effect. That being the case, it appears to have been incumbent on the Royal Mint’s lawyers to make an urgent application, for instance for compliance with the Order to be waived, for relief from sanctions and for a new date for compliance to be set. Instead, they did not take action until 3 January 2024, when they wrote to the FTT suggesting that a response would be provided within a further 35 days. However, this was just correspondence – no actual application was made.

Eventually, a response was issued by the Royal Mint in relation to the SDN, on 5 February 2024, more than two-and-a-half years after AHB made his request.

AHB’s application for a contempt certification was still live though, and here I pause to observe that, on the information available, I am not surprised he took no action to withdraw it. He had been vindicated by the FTT’s SDN of 3 October 2023, and he was unaware that the SDN had erroneously not been served on the Royal Mint (in fact, it is not at all clear at what point he did become aware of this). In any case, as no application was made by the Royal Mint for further time, the Order in the SDN must still have been in effect. In fact the judgment alludes to this when it notes that AHB was “indicating” in his contempt application that the final Royal Mint response “was provided 125 days after the Substituted Decision Notice was issued and 90 days later than directed”.

In any event, the FTT declined to certify the failure to comply on time as contempt, because

whilst the Tribunal does consider that the Respondent could have acted more diligently on becoming aware of the Substituted Decision Notice, by applying for an extension of time and requesting permission to extend the time set out in the SDN, the Tribunal does not consider that [the Royal Mint’s lawyer] wilfully avoided complying with the order. The Tribunal accepts that he was simply not aware of the appropriate course of action to take in circumstances where a Court or Tribunal imposed a deadline that had already been missed. In any event, the approach taken is not sufficiently serious to warrant certification to the Upper Tribunal for contempt and the application is refused. [emphasis added]

I will pause here to say that it’s unusual, to say the least, for a court to accept a submission that a solicitor was not aware of what to do when in receipt of an order of a court. Most judges would be quite intolerant of such an argument.

But the story does not end there. In submissions dated 17 July 2024 the Royal Mint then “indicated an intention to pursue an application for the costs ‘of and associated with’ the [contempt] application”. Under rule 10 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 the FTT may make an order in respect of costs but only if it considers that a party has acted unreasonably in bringing, defending or conducting the proceedings.

And, remarkably, the FTT acceded to the costs application, on the grounds that AHB did not withdraw his application for the FTT to certify the Royal Mint’s (undoubted) failure to comply with the 3 October 2023 Order, after he had finally received the fresh response of 5 February 2024. The FTT also took into account AHB’s reference to pursuing a “campaign” to encourage greater transparency.

But does this mean AHB has “acted unreasonably in…conducting the proceedings”? I’m far from convinced (in fact, I’m not convinced). The FTT says

The Tribunal does not consider that it is reasonable (or that any other reasonable person would consider it reasonable) for an application for a party to be certified to the Upper Tribunal for contempt of court to be used as part of a campaign to encourage greater transparency…The Tribunal considers that the obligation to deal with cases fairly, justly, and proportionately in circumstances where the Applicant accepts that he was in appropriately [sic] pursuing a “campaign” for other purposes and where the chances of success in relation to the Tribunal actually certifying the contempt may be limited may justify the making of a costs order against the Applicant.

Well, if I’m to be considered a reasonable person, then I do not think it unreasonable for a person to decide not to withdraw such an application where they have waited more than two-and-half years for an answer from a public authority to a simple FOIA request, and where the public authority has failed to comply with an Order, because its lawyer chose not to acquaint himself with procedural rules. Unreasonableness imposes a very high threshold, and this is shown by the fact that costs awards are extraordinarily rare in FOIA cases in the FTT (from my research I have only found two, in the twenty-odd years FOIA has been in effect, and one of those was overturned on appeal). AHB may have been tenacious, perhaps overly so, and he may have ancillary reasons for (some of) his conduct, but – again – that does not connote unreasonableness.

Costs have not yet been awarded, as the FTT has adjourned for submissions on AHB’s means, and a breakdown of the Royal Mint’s costs.

I should end by saying there may be other material not in the public domain which provides a gloss on AHB’s conduct of the proceedings, but one can (and must) only go on what is in the public domain.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under access to information, contempt, costs, FOIA, Freedom of Information, Information Commissioner, Information Tribunal, judgments

Tagged as , , ,

December 3, 2024 · 6:00 am

I don’t think that word means what you think it means

[reposted from LinkedIn]

I think there’s a plain error of law in this Information Tribunal judgment (O’Hanlon & Anor v Information Commissioner & Anor [2024] UKFTT 1061 (GRC)).

Section 36(2)(b) of the Freedom of Information Act 2000 (FOIA) says that information is exempt if, in the reasonable opinion of a qualified person, disclosure would, or would be likely to, inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation, or would otherwise prejudice (or would be likely to do so) the effective conduct of public affairs.

I’ve written elsewhere about the flawed concept of who a “qualified person” is, but, at least in relation to govt departments, it’s straightforward: it’s a minister (s36(5)(a)).

In June 2022, Lord True, Minister of State in the Cabinet Office, in the context of a then-live FOIA request, gave a s36 “reasonable opinion”, as a qualified person, that internal department email addresses were exempt, and – crucially – that his opinion was to apply “going forward” in relation to any similar requests. Subsequently, the Cabinet Office applied his opinion to a new request which was received after he had given it.

The ICO said this was not permitted: “the provisions of s36 only become relevant once a request for information has been made…a Qualified Person’s opinion must therefore necessarily post-date the request for the information, and must be an opinion relating to the specific request”.

Not so, said the Tribunal: s36(6)(b) allows an “authorisation” to be “general”, and, therefore “a general authorisation must include be [sic] forward looking to other requests”.

But that is not what “authorisation” means in s36: the word only occurs, prior to s36(6)(b), in s36(5), and it refers to the authorisation of persons as qualified persons to give a reasonable opinion. In other words, the qualified person gives an opinion – not an “authorisation”. The reference in s36(6)(b) to an authorisation being permitted to be “general” is followed by “or limited to specific classes of case” – i.e. a person may be authorised in general to give a reasonable opinion, or authorised (perhaps they have a specialism) only in certain cases).

It does not mean that they are “authorised” to give a prospective qualified opinion that classes of information will always be exempt (subject to a public interest test).

The Tribunal’s reading of s36(6)(b) heavily informed its judgment, and it’s certainly questionable whether, but for this error, it would have decided in favour of giving this “prospective effect” to some s36 qualified opinions.

One hopes the ICO will appeal – because there will otherwise be a risk that public authorities will start classifying, of their own accord, certain classes of information as “always exempt”.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under access to information, FOIA, Freedom of Information, Information Commissioner, Information Tribunal, judgments

Tagged as , ,

November 28, 2024 · 5:51 am

Regulators’ powers to get information from public authorities

[reposted from LinkedIn]

“The contents of this judgment stand as a salutary warning to local authorities and to other public bodies concerned with fitness to practise in occupations concerned with or touching on the welfare of children…I hope what took place in this case will not happen again.”

These are the concluding words of General Dental Council v KK & Anor [2024] EWHC 3053 (Fam), a stinging judgment of Mrs Justice Knowles in the Family Court.

During the course of a fitness to practise (FTP) investigation involving “KK” the General Dental Council (GDC) were informed by the police that a local authority, Stockport Council (SMBC), held information relating to public law proceedings involving the care of children. Under s12(1)(a) of the Administration of Justice Act 1960 (AJA) it is criminal contempt to disclose much of the information in relation to such proceedings. Notwithstanding this (and apparently ignorant of it) the GDC made a request for information to SMBC, alluding to its powers to require supply of information under s33B(2) of The Dentists Act 1984 (DA). SMBC subsequently disclosed a raft of information to the GDC, apparently under the belief that s33B(2) compelled them to do so.

However, s33B(3) of the DA states that “nothing in this section shall require or permit any disclosure of information which is prohibited by any relevant enactment”: section 12(1)(a) of the AJA clearly was a “relevant enactment” prohibiting the disclosure.

The upshot was an unholy mess: the information disclosed was used by the GDC in the FTP proceedings and it was almost four years into those protracted proceedings before the issue of the unlawfully disclosed information came to light. An application by GDC to the Family Court for an order for (lawful) disclosure was made, and Knowles J indicated during the initial hearing that contempt proceedings would not be necessary or proportionate “subject to the Court being satisfied that all unauthorised material disclosed to the GDC had been deleted from its server and was no longer in its possession”. By that point though, in the FTP proceedings, there had been (deep breath) “11 interim order hearings; 4 extensions…in the High Court; 3 substantive hearings before the Professional Conduct Committee and 6 preliminary hearings before the Practice Committee…and at least 149 individuals needed to be contacted to ascertain whether they held unauthorised disclosure arising from their work on behalf of the GDC.” The deletion process took approximately six months.

Ultimately, appropriate, restricted and lawful disclosure by SMBC was ordered. Contempt proceedings against GDC and SMBC (and individuals) were not necessary.

GDC and SMBC jointly have to meet KK’s costs, and – although the judgment records that both have since initiated training/protocols etc to prevent any recurrence – in the words of the judge, “both have been shamed by what occurred”.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under access to information, data sharing, judgments, regulatory law

Tagged as ,

November 27, 2024 · 5:57 am

Late (very late) reliance on exemptions, redux

[reposted from LinkedIn]

A Freedom of Information exemption may be relied upon “late” by a public authority (e.g. it can be claimed, after an initial refusal on other grounds, during an investigation by the Information Commissioner, or in the course of proceedings before the First-tier Tribunal). The jurisprudence on this is clear (Birkett v The Department for the Environment, Food and Rural Affairs [2011] EWCA Civ 1606, All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner & Ministry of Defence [2011] UKUT 153 (AAC), Information Commissioner v Malnick and the Advisory Committee on Business
Appointments [2018] UKUT 72 (AAC), McInerney v Information Commissioner and the Department for Education [2015] UKUT 0047 (AAC)).

But can a public authority, having received a preliminary decision from the FTT that an exemption is not engaged, and after the FTT has invited further submissions on the other exemptions said to be engaged, adduce new grounds for the rejection of the first exemption? Perhaps surprisingly, the FTT has answered “yes”.

In Finch v IC & HMT EA/2023/0303, the FTT had rejected HMT’s reliance on the section 12 costs exemption, in a preliminary decision of 12 January. HMT had argued that its IT supplier would charge more than £600 to retrieve the requested information from storage, and so the s12 exemption was engaged. However, the FTT held that no evidence was provided as to this, and so rejected the argument. As the ICO’s decision under appeal had only considered the s12 issue, the other exemptions said by HMT to be engaged (s40(2), s41, s43(2)) required further submissions from the parties, and so the FTT directed that these be provided and heard at a subsequent hearing.

HMT then submitted that it wished to rely on s12 on different grounds because a “new factual matrix” needed to be considered – in fact it did have access to repository of information, but the searches would take c.46.5 hours (and so exceed the s12 costs limits).

The FTT determined (Birkett, Malnick and – oddly – Browning v Information Commissioner [2013] UKUT 236 considered) that the broad case management powers under rule 5 of the Tribunal Rules allowed it to set its own procedure and that, accordingly, it would permit this “pivoted” reliance on new s12 grounds.

Those new grounds then prevailed, the s12 exemption applied (as would have, if necessary, the s40, 41, and 43 grounds) and the appeal failed.

Even though the ICO did not appear at the hearing, they did make submissions suggesting they opposed the late reliance. It will be interesting to see if they seek to appeal, as the idea that public authorities can as a general rule shift their grounds for relying on an exemption after it has been – in a preliminary decision – rejected, is not a particularly attractive one.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under access to information, Environmental Information Regulations, FOIA, Freedom of Information, Information Commissioner, Information Tribunal, judgments

Tagged as

November 22, 2024 · 7:29 am

Yes, Ok, I can be vexatious

[reposted from LinkedIn]

Until a few days ago, I had never, in almost twenty years of making FOI requests, had one refused on the section 14(1) grounds that it was vexatious. But this one broke that streak.

A request can be vexatious for a number of reasons, most of which go to the motives or behaviour of the requester (see the leading case of IC v Dransfield [2012] UKUT 440 (AAC)), but the law has also developed to encompass requests which, by nature of the work which would be required to assess and redact exempt information, are simply too onerous to respond to (see Cabinet Office v Information Commissioner and Ashton [2018] UKUT 208 (AAC)).

As I try to have, and show, no bad motive or behaviour, and as I try very hard not to make requests that are too broad, I’d managed to avoid such a refusal until now.

I asked for the full dataset of Tribunal cases which the Information Commissioner has been involved in. In a previous disclosure an extract from this dataset had been provided to someone. I didn’t know that that full dataset had potentially exempt fields in it. Having had this explained to me I don’t doubt that these fields would be exempt, and I don’t doubt the onerousness of the work which would be required to redact it all. So on the face of it, the refusal is fine, and I’ve submitted a follow up request for narrowed-down information.

But I think this was a good example of how the public authority could have dealt with this differently. They knew that I’d seen the previous extract, and should reasonably have surmised from that that I only wanted those fields, but across the whole dataset. An email or phone call to clarify this would have resolved the issue straight away (and I wouldn’t be writing this now). The case officer does acknowledge this (“we apologise that we did not contact you sooner to advise that we would be unable to respond to this request and advise on how it could be revised”), and I’m not going to whinge (unless this is a whinge (it probably is, isn’t it?)) – everyone is busy, and I’ve certainly handled requests as a practitioner where I’ve realised I could done things differently and better earlier in the process.

But it’s a good example of how a small gap in understanding between requester and public authority can lead to more (and unnecessary) work for both.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

1 Comment

Filed under access to information, Freedom of Information, Information Commissioner, vexatiousness

Tagged as ,

November 16, 2024 · 6:56 am

Non-party access to court documents

The issue of non-party access to information from court cases, such as parties’ skeleton arguments and other case documents, continues to exercise the courts. In a recent judgment (Moss v The Upper Tribunal [2024] EWCA Civ 1414), the Court of Appeal has ruled that the president of the Administrative Appeals Chamber of the Upper Tribunal had been wrong to refuse an application for parties’ written submissions from a Freedom of Information Act case.

Following the Supreme Court’s judgment in Dring, it is clear that there is no presumptive right to such documents. Instead, as Baroness Hale put it, “it is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle” (at para 45 of the SC judgment), and if that test is met, the court must consider any countervailing factors (at 46-47).

Here, the AAC President had rejected the applicant’s stated reason (“I am a campaigner and writer with a particular interest in information and rights law and certification/contempt proceedings, and I need copies of the skeleton arguments to see what arguments were deployed in these cases, to enable me to write about them from an informed point of view”) but did not explain why. This was an error of law, and Coulson LJ, reconsidering the material which had been before the President, decided instead that stated reason (just) met Baroness Hale’s first test. There were no countervailing factors, and so the appeal succeeded.

All three appeal court judges note that the Civil Procedure Rules Committee is in the process of considering how to deal with non-party information requests – something Baroness Hale had called for in a postscript to Dring.

However, as happened here, such requests are often made in relation to tribunal proceedings, which are not covered by the CPR. Tribunal rules are notably silent on such issues, and Underhill LJ wisely calls on the Tribunal Rules Committee also to consider the matter.

Aidan Wills of Matrix Chambers acted for the appellant, and Eric Metcalfe of Monckton Chambers for the Information Commissioner’s Office, as an interested party.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

2 Comments

Filed under access to information, Article 10, Freedom of Information, judgments, Open Justice

Tagged as