Edem GIA 3556 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 29 April 2015 |
| Neutral Citation | 2015 UKUT 210 AAC |
| Subject Matter | Information rights |
| Respondent | (1) The Information Commissioner, (2) Ministry of Justice |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 3556 2014 |
| Appellant | Edem |
DECISION BY THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to dismiss the appeal.
The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 17 April 2014 does not involve an error on a point of law. The appeal is therefore dismissed.
This decision is given under section11 of the Tribunals, Courts and Enforcement Act 2007.
REASONS
The legal issue that arises on this appeal
1. Is the audio-recording of a public oral hearing before an Upper Tribunal Judge (“the disputed information”) a “document” for the purposes of section 32 of the Freedom of Information Act 2000 (FOIA)?
2. If it is, then the disputed information is automatically exempt from disclosure under FOIA by virtue of section 32. In those circumstances the First-tier Tribunal Judge was right to strike out the requester’s appeal.
3. If the disputed information is not a document, then section 32 does not apply and on the face of it the First-tier Tribunal Judge was wrong to strike out the requester’s appeal. In those circumstances there may, of course, be some other exemption under FOIA that might apply.
4. To cut to the quick, I conclude that an audio-recording of a hearing before an Upper Tribunal Judge is a “document” for the purposes of section 32 and so dismiss the requester’s appeal.
The background to the appeal
5. The requester and Appellant is Mr Edem. The First and Second Respondents are respectively the Information Commissioner and the Ministry of Justice (as the public authority responsible for Her Majesty’s Courts and Tribunal Service [HMCTS]). The Ministry of Justice was joined as a party in the Upper Tribunal proceedings.
6. On 5 November 2012 Upper Tribunal Judge Jacobs held a hearing of an appeal by the Information Commissioner and the Financial Services Authority (FSA) (GIA/1598/2012) against a decision by the First-tier Tribunal on Mr Edem’s original appeal against a Decision Notice by the Information Commissioner. At the same time Judge Jacobs heard Mr Edem’s cross-appeal against aspects of the First-tier Tribunal’s decision. Judge Jacobs allowed the appeals by the Commissioner and the FSA and dismissed that by Mr Edem, who in turn appealed unsuccessfully to the Court of Appeal (Edem v the Information Commissioner & the Financial Services Authority [2014] EWCA Civ 92 [2014] AACR 19). I would simply add that the outcome of the appeal before Judge Jacobs and then the Court of Appeal is irrelevant to the issue I now have to decide. Rather, that case simply provides the context for what happened next.
What happened next: Mr Edem’s request
7. On 29 January 2013 Mr Edem e-mailed the Upper Tribunal office requesting “a copy of the audio-recording that HMCTS holds of the public appeal hearing that the UT (Judge Jacobs) conducted on 5th November 2012. HMCTS may provide the requested information on inter alia a CD(s) or DVD(s). I would ask HMCTS to treat this as a request for information under DPA 1998 and/or FOIA 2000.”
8. On 27 February 2013 Judge Jacobs issued a ruling to the effect that it was in the interests of justice for Mr Edem to be provided with a copy of the recording of the hearing in question. This was for the sole purpose of allowing Mr Edem “to refresh his memory of what was said in the course of the hearing and to use that information for the purpose of any legal challenge to the decisions of the Upper Tribunal in these cases”. In other respects the ruling was subject to the condition that Mr Edem did not alter, copy or publish the recording (or any transcript of it), or make it available to any third party, “without the express permission of an Upper Tribunal Judge”. The Upper Tribunal office sent Mr Edem the Judge’s ruling and 7 CDs.
9. On 9 March 2013 Mr Edem e-mailed the Upper Tribunal office asking for HMCTS to deal with the matter administratively as a FOIA request. He expressed the view that Judge Jacobs’s “unjustified and unreasoned restrictions on the use of the audio recording of the public appeal hearing in this matter are incompatible with both the principle of open justice and the proper administration of justice”.
10. On 21 June 2013 HMCTS confirmed that it held the information requested but refused to provide it, arguing that it was exempt from disclosure by virtue of section 32(1) of FOIA. Mr Edem lodged a complaint with the Commissioner.
The Information Commissioner’s decision
11. On 21 January 2014 the Commissioner issued a Decision Notice (FS50511429), which concluded that the public authority was entitled to rely on the exemptions in section 32(1)(c)(i) and (ii) of FOIA. Mr Edem appealed to the First-tier Tribunal. The Commissioner lodged a response resisting the appeal and inviting the First-tier Tribunal to strike out the appeal under rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber [GRC]) Rules 2009 (SI 2009/1976), on the basis it had no reasonable prospect of success.
The First-tier Tribunal’s decision
12. On 17 April 2014, the then First-tier Tribunal (GRC) Chamber President, Judge Warren, struck out Mr Edem’s appeal, explaining his decision as follows:
“3. ... the only rational argument open to Mr Edem on this appeal is whether the term ‘document’ includes a CD. In the days of short-hand note taking both the note and its transcription would obviously have been ‘documents’. Any transcript of a tape recording or digital recording would undoubtedly be a ‘document’. I have no doubt that any Tribunal would construe section 32 FOIA purposively and hold that, for the purpose of the Act, a ‘document’ is not limited to something written down on paper but extends also to a digital recording on CD. The CD is therefore to be treated no differently from a written transcript of its contents.”
13. On 23 May 2014 Judge Warren gave permission to Mr Edem to appeal to the Upper Tribunal on the sole ground as to whether his strike-out decision contained an error of law as to the meaning of “document” in section 32 of FOIA. Judge Warren refused permission to appeal on various other grounds (“the further grounds”).
The proceedings before the Upper Tribunal
14. On 3 September 2014 I issued preliminary observations drawing attention to the subsequent decision of Judge Williams on 13 June 2014 in Peninsula Business Services Ltd v Information Commissioner and Secretary of State for Justice and the Lord Chancellor (FOIA) [2014] UKUT 284 (AAC) (“Peninsula Business Services Ltd”). I suggested that in the light of that decision Mr Edem “may be in some difficulty in making good and pressing home the ground of appeal on which permission has been given by Judge Warren.”
15. On 1 December 2014 I held an oral hearing at which Mr Edem renewed his application for permission to appeal on the further grounds. In a detailed ruling dated 2 December 2014 I refused permission on those further grounds and confirmed that the appeal was limited to the sole ground on which Judge Warren had given permission, on which I made a number of further observations. Since then all three parties have made detailed written submissions on the appeal.
16. I have a discretion as to whether to direct an oral hearing of this appeal, having considered the parties’ views (Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698; “the UT Rules”), rule 34(2)). Mr Edem sees no reason why I should not determine the appeal on the papers if I and the Respondents accept certain factual matters which he enumerates. The Respondents both argue that the appeal can be resolved on the papers.
17. It is fair and just to determine this appeal on the papers. The appeal concerns a narrow point of statutory construction and the arguments have been fully canvassed in the written submissions. I can see no added value from an oral hearing. Whether I (or the Respondents) agree with various factual assertions made by Mr Edem is immaterial given the appeal is confined to a well-defined issue of law (see paragraph 1 above).
The Upper Tribunal’s analysis
Introduction: the legislative scheme and the parties’ submissions in outline
18. Section 32 of FOIA is an absolute class-based exemption (see section 2(3)(c)), so no issue of weighing the respective public interests arises. Section 32(1) provides as follows:
“32 Court records, etc.
(1) Information held by a public authority is exempt information if it is held only by virtue of being contained in—
(a) any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter,
(b) any document served upon, or by, a public authority for the purposes of proceedings in a particular cause or matter, or
(c) any document created by—
(i) a court, or
(ii) a member of the administrative staff of a court,
for the purposes of proceedings in a particular cause or matter.”
...
To continue reading
Request your trial