Author: Christopher Knight

Courting Disclosure under Section 32

Posted on | by Christopher Knight

The Institute of Chartered Accountants (“ICA”) has a policy of seeking the Certificate of Conviction of any of its members who have been found guilty of an offence which may relate to their appropriateness to act as a chartered accountant. However, the Courts Service (“HMCTS”) refused to confirm or deny holding an individual’s Certificate under section 32 FOIA because it was a document created by the court for the purpose of proceedings. A Certificate of Conviction is currently governed by section 73 of the Police and Criminal Evidence Act 1984, but has existed since the mid-nineteenth century. It acts as conclusive proof of conviction.

In ICAEW v IC & Ministry of Justice (EA/2011/0148, judgment of 8 December 2011) the Tribunal upheld the Commissioner’s decision notice that the HMCTS was not required to confirm or deny holding the information. The Tribunal followed the decision of the Court of Appeal in Kennedy v IC [2011] EWCA Civ 367 that the protection of section 32 was ongoing after the conclusion of proceedings, and that it could not logically matter whether the court created the document before or after the verdict because it was for the purpose of the proceedings. The ICA’s attempt to construe “proceedings” as excluding the issuing of a Certificate of Conviction was said to be “narrow and artificial” by the Tribunal: at [42].

The Tribunal also reiterated the section 32 jurisprudence that the purpose of the exemption is to ensure that the court can regulate access to its own files. Access to court records can be sought under the Civil Procedure Rules, but the Criminal Procedure Rules do not provide for access to a Certificate and the Tribunal considered this to be very relevant. A Certificate is not itself publicly accessible, even if the information it contains may be reported publicy elsewhere. (Section 32 being an absolute exemption, this fact provided the ICA with no assistance.)

There is not a large amount of case law on the application of section 32 – and my involvement on behalf of the Commissioner precludes analysis of the Tribunal’s judgment – but the ICAEW case does provide some helpful reiteration of the purpose and scope of the absolute exemption, stressing that access to court records is very much a matter for that court and is not to be circumvented by FOIA.

Christopher Knight

Section 11 and the Form of a Request

Posted on | by Christopher Knight

Although not a decision which is likely to make front-page news anywhere, the Tribunal’s recent decision in Innes v Information Commissioner (EA/2011/0095) does contain a couple of points of practical utility. The request was for information relating to 11+ results and the appellant objected that he had requested that the information be supplied to him in the form of a Microsoft Excel spreadsheet file (other software is available). The public authority declined to do so on the basis that it was not obliged under s.11 FOIA to provide information in a particular format, and that in any event, the clarification that Excel was wanted was made after the request and so did not fall within s.11 on that basis either.

The Tribunal dismissed the appeal. It upheld the Commissioner’s practice of distinguishing between a “form” (as specified in s.11) and a ‘format’ (not specified). Requesting information be supplied electronically is a form, but requesting it in an Excel spreadsheet is a format, and a step too far. The Tribunal considered that this was the clear effect of the language of s.11(1) and that reference to Hansard was unnecessary. The Tribunal accepted that the Inner House of the Court of Session had come to a persuasively similar view in respect of the equivalent Scottish provisions: Glasgow City Council v Scottish Information Commissioner [2009] CSIH 73. The distinction is between permanent (i.e. paper) and another (i.e. electronic) form and not more specific than that.

The Tribunal confirmed that any preference must be expressed at the time of request, as clearly set out in the wording of s.11. The reasonable practicability test does not apply to this.

The Tribunal also reiterated its position that the requirements of s.16 FOIA and the accompanying Code of Practice do not extend to the public authority explaining the information it has provided to the requestor.

As noted at the outset, the case hardly sets the world alight, but it does provide a welcome clarification on what is covered by a preference for “form” in s.11(1) which is likely to be practically useful to public authorities faced with demands to supply information in a particular electronic format. The Commissioner’s public position on the point remains the clearest guidance. There is, of course, nothing to stop an authority complying with that request if it wishes to do so, but FOIA does not impose any obligation.

Judicially Reviewing the Information Rights Tribunal

Posted on | by Christopher Knight

The Supreme Court today handed down its long-awaited (at least by some) judgment in R (Cart) v The Upper Tribunal [2011] UKSC 28. The case concerns the circumstances in which the ordinary courts will entertain an application to judicially review a decision of the First-Tier or Upper Tribunals. Although the case did not directly involve a challenge to the Information Rights division of the Tribunals, the judgment is of general application.

The Upper Tribunal is a “superior court of record” by virtue of section 3(5) of the Tribunals, Courts and Enforcement Act 2007. Under section 13, there is a right of appeal to the Court of Appeal from the Upper Tribunal, subject to permission being granted by either body, unless the decision falls within the category of excluded decisions. The most generally relevant excluded decision is a refusal of permission to appeal from the First-Tier Tribunal to the Upper Tribunal by the Upper Tribunal. Where permission is refused that is, in the eyes of the 2007 Act structure, the end of the line. Unless one can judicially review the decision to refuse permission.

The Divisional Court roundly rejected the argument that the designation of the Upper Tribunal as a superior court of record rendered it immune from judicial review ([2009] EWHC 3052 (Admin); [2010] 2 WLR 1012) and the absolutist position was not resurrected on appeal. The Court of Appeal agreed with the Divisional Court that judicial review should be available only in circumscribed cases ([2010] EWCA Civ 859; [2011] 2 WLR 36). The Supreme Court unanimously dismissed the appeal, but for different reasons.

The leading judgment of the Supreme Court was given by Lady Hale, with whom the rest of their Lordships more or less completely agreed, albeit in their own words. Rejecting the application of an unrestricted judical review jurisdiction over all decisions in the Tribunal structure, and the application of an exceptional circumstances test limited to an excess of jurisdiction and denial of fundamental justice, the Court settled on a more easily described approach. Where an application is made for judicial review of a Tribunal decision the High Court should apply the second appeals criteria, namely that (a) the proposed case would raise some important point of principle or practice, or (b) there is some other compelling reason for the court to hear the case.

It was considered by Lady Hale and the other members of the Court that this test was a proportionate and rational restriction on the availability of judicial review which nonetheless recognised the importance of correcting errors in the Tribunal’s case load. The exceptionality test would have been too narrow, and applying judicial review without limitation would have lead to the courts being swamped with applications in respect of a system designed to make the process easier, quicker and cheaper (especially in the light of its application to immigration and asylum cases).

Interestingly, there were a number of comments from Lady Hale, Lord Phillips, Lord Clarke and Lord Dyson to the effect that the situation would be made clearer by an amendment to the CPR remove the potential four stages of judicial review permission applications in these quasi-second appeal cases. Whether the Rules Committee is paying attention remains to be seen.

The upshot of the decision in Cart is that if the Upper Tribunal refuses permission to appeal to it, that decision can be judicially reviewed, but only on the restrictive second appeals criteria. The tenor of the judgments as a whole do not provide much appetite for leave to be readily granted, and in both cases under appeal the Supreme Court roundly rejected their compliance with the second appeal test.

For those reading north of the border, the Supreme Court applied the same approach to the Tribunal structure in Scotland in Eba v Advocate General for Scotland [2011] UKSC 29.