Forstater v Information Commissioner and others
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wright |
| Neutral Citation | [2023] UKUT 303 (AAC) |
| Published date | 10 January 2024 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
Forstater v Information Commissioner and others
[2023] UKUT 303 (AAC)
1
IN THE UPPER TRIBUNAL UT ref: UA-2022-000248-GIA
ADMINISTRATIVE APPEALS CHAMBER
On appeal from First-tier Tribunal (General Regulatory Chamber) (Information Rights)
Between: Ms Maya Forstater Appellant
- v –
The Information Commissioner First Respondent
and
The Ministry of Justice Second Respondent
and
The Judicial College Third Respondent
Before: Upper Tribunal Judge Wright
Decided after a hearing on 19 July 2023
Representation: Naomi Cunningham of counsel for Ms Forstater
Katherine Taunton of counsel for the Information Commissioner
Ravi Mehta of counsel for the Ministry of Justice and the Judicial
College
Decision date: 14 December 2023
DECISION
The decision of the Upper Tribunal is to dismiss the appeal. The decision of the
First-tier Tribunal dated 30 November 2021 did not involve the making of any error of
law.
REASONS FOR DECISION
Introduction
1. This a somewhat unusual appeal because it concerns at its heart whether the
body to which the information request was made was a “public authority” for the
Forstater v Information Commissioner and others [2023] UKUT 303 (AAC)
2
purposes of the Freedom of Information Act 2000 (“FOIA”) at the time the request
was made to that body. If the body to whom the request was made was not a public
authority under FOIA then that is the end of the matter. This is because the general
obligation under section 1 of FOIA to provide the information requested only arises if
the request is made to a “public authority”.
Relevant background
2. The appeal arises from a request made by Ms Fostater to what was at the time
Her Majesty’s Courts and Tribunals Service (“HMCTS”) on 18 March 2020. The
request asked for information concerning training Ms Forstater understood had been
delivered by an organisation called ‘Gendered Intelligence’ on ‘Trans awareness’ to
judges of the employment and asylum and immigration tribunals. The request asked
for the costs of the training, the contract/agreement/terms of reference for the
commissioning of the training, the materials used at the training and the names of the
judges who had attended the training.
3. The request led to a response at the end of March 2020. As the First-tier
Tribunal (FTT) noted, the response was on Ministry of Justice (“MoJ”) notepaper and
was signed by an individual on behalf of the “Judicial College”. The substance of that
response was that the information was not held by the MoJ as:
““statutory responsibility for the provision and content of training for the
judiciary rests with the Lord Chief Justice as Head of the Judiciary in
England and Wales, and the Senior President of Tribunals, in line with the
Constitutional Reform Act 2005…. [and]…the Judiciary are not a public
authority for the purposes of FOIA…”
4. Ms Forstater sought an internal review of this decision by “HMCTS/the Judicial
College” on the basis that, although the judiciary is not a public authority for the
purposes of FOIA:
“the Judicial Studies Board is listed under Schedule 1 [of FOIA] The
Judicial College was formerly the Judicial Studies Board and there has
been no indication that it has been removed from the scope of the
Freedom of Information Act.”
5. The reply to this internal review request was also issued on MoJ headed
notepaper and was signed (electronically) by the Judicial College. The material parts
of that reply, as far as this appeal is concerned, read as follows:
“All information on judicial training that is held by the Judicial College, is
only held on behalf of the judiciary of England and Wales, who are exempt
from the provisions of the FOIA 2000 by not being cited as a public
authority in Schedule 1 of the FOIA. Which is why it is not held by the MoJ.
6. The above is sufficient to describe the central issue which arises on this appeal.
7. The FTT set out the issues it considered fell for its consideration in the following
terms:
“(1) Is the Judicial College a public authority for the purposes of FOIA?
(2) If yes, does the Judicial College hold any part of the requested
information?
(3) Irrespective of the answer to (1) above, does the Ministry of Justice
hold any part of the requested information?
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