Closed proceedings in FOIA appeals – new FTT checklist

Posted on | by Anya Proops KC

The question of how far tribunals should go in terms of allowing evidence and submissions to be dealt with on a closed basis in FOIA appeals is one that looms large for all FOIA practitioners. Judge Nicolas Warren, the President of the First-Tier Tribunal (Information Rights) has now drafted and circulated to all FTT judges a checklist for dealing with closed proceedings under rule 14 of the Tribunal rules. Not being one to keep the public in the dark about such judicial guidance, Judge Warren has kindly agreed to the checklist being reproduced in full on the blog – see further below:

General Regulatory Chamber (Information Rights) – Rule 14 Check list

  1. Has Rule 14 been correctly applied so far?  Should any closed material be made open?
  2. Is it necessary to hold part of the hearing in closed or do the closed written submissions suffice?
  3. Explain purpose of closed hearing to requestor.
  4. Ask requestor if there are any questions he or she particularly wants the Tribunal to put.  If requestor legally represented then the questions should be in writing.
  5. Is the hearing recorded?  If so, the closed session must also be recorded but separately and with the cd sealed and a note that it must not be opened with the permission of the Tribunal or the UT.
  6. During the closed session, keep a running note of anything new that is said which could properly be said in open session.
  7. At the conclusion of the closed session, agree with the representatives what is to be said to the requestor on return to open by way of:- (a) a gist of what must remain closed. (b)anything new that could have been said in open.
  8. In draft decision include an account of the procedure adopted and indicate what use if any was made of the closed material.

It is clear that this guidance is intended to increase the rigour and care with which tribunals approach the issue of closed hearings and, hence, to intensify compliance with natural justice principles. For further discussion of closed procedures in the information tribunal see further my previous posts on the Court of Appeal case of Browning here and here.

Anya Proops