Life for the CD Yet

May 14th, 2015

Does anyone remember compact discs? Isn’t everything downloadable from iTunes, or Napster, or whatever it is that young people are using these days? Well, to the joy of crotchety old people everywhere, the court system still uses CDs. Indeed, the Upper Tribunal records hearings before it on CD, and when a litigant wants access to those recordings the Upper Tribunal may take the view that it is interests of justice to disclose it to them. (We are not yet at the thrilling stage of having Upper Tribunal hearings filmed and made available online, as in the Supreme Court. One cannot imagine why.)

So it was in the case of Mr Edem – he of ‘is a name personal data?’ fame – who did not approve of being given his recordings but under terms which did not permit him to more widely disclose them. Instead, he sought them under FOIA and was met with the fairly predictable reliance by the Ministry of Justice on the absolute exemption for court records in section 32(1)(c). Aha, said Mr Edem, but a CD is not a “document” within the meaning of section 32(1).

This may come as something of a surprise argument to anyone looking at the broad definition of information in section 84, the approach of the Court of Appeal in IPSA (see here), the Upper Tribunal decision in Peninsula Business Services v ICO & Ministry of Justice [2014] UKUT 284 (AAC), and indeed common sense. It is less of a surprise to see the argument fail in Edem v ICO & Ministry of Justice [2015] UKUT 210 (AAC).

Judge Wikeley had little difficulty in accepting that the purpose of section 32(1), to enable the courts to control access to their own files and records, indicates a broader interpretation of document than merely paper files, and the effect of the distinction that an audio record would not be caught but a transcript would be was patently not intended to be the outcome. In any event, a document is simply something which contains information. It does not determine the form or mode of container. Various cases from different contexts (including of course the Kennedy litigation under FOIA) gave support for the conclusion that “document” naturally includes an audio recording which contains relevant information. In so concluding, Judge Wikeley reached precisely the same conclusion as Judge Williams had done in Peninsula. The Upper Tribunal also dismissed the argument that simply because the use of “document” in section 25 (on national security certificates) must mean a written document because of the specific context of a certificate did not require the same interpretation generally: a written document is a document but the reverse is not true. The strike out of the appeal was upheld.

Rupert Paines appeared for the ICO; Rachel Kamm was for the MoJ.

Christopher Knight

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