Freedom of Information Act 2000 (FOIA) Decision notice

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1 Freedom of Information Act 2000 (FOIA) Decision notice Date: 11 September 2017 Public Authority: Address: Ministry of Justice 102 Petty France London SW1H 9AJ Decision (including any steps ordered) 1. The complainant requested information from the Ministry of Justice (the MOJ ) about courts cases involving children who have been, or are at risk of, being radicalised or involved in terrorist activities. The MOJ provided some information but withheld the remainder, citing section 32(1) court records and 40(2) personal information of FOIA. Following an internal review, the MOJ revised its position; it refused to disclose this information under section 12(1) of FOIA as it estimated that the cost of compliance with the request would exceed the appropriate limit. 2. The Commissioner s decision is that the MOJ applied section 12(1) of FOIA correctly and so it was not obliged to comply with the complainant s information request. No steps are required. Request and response 3. On 30 January 2017 the complainant wrote to the MOJ and requested information in the following terms: In October 2015, the President of the Family Division issued this 1 guidance about how cases concerning potential radicalisation should be handled within the family court in light of the 1 1

2 increasing numbers of children cases coming before the Family Division and the Family Court where there are allegations or suspicions: that children, with their parents or on their own, are planning or attempting or being groomed with a view to travel to parts of Syria controlled by the so-called Islamic State; that children have been or are at risk of being radicalised; or that children have been or at are at risk of being involved in terrorist activities either in this country or abroad. How many cases have been referred to High Court under the above guidance, from December 2015 to December 2016? Please list each judgement and where known, the age of each child and the outcome of each judgement. If possible, please state where a care order or wardship application has been made multiple times in relation to the same child. 4. The MOJ advised that the request was handled by Her Majesty s Courts and Tribunal Service ( HMCTS ) London Regional Support Unit on its behalf. As HMCTS falls under the MOJ s umbrella, and for ease of reference, the MOJ is referred to throughout this notice. 5. The MOJ responded on 27 February 2017 and confirmed that statistics on the number of cases considered as a result of the guidance cited by the complainant was not held. It also confirmed that it held the remaining information but refused to provide it, citing the following exemptions as its basis for doing so: section 32(1) court records and section 40(2) personal information. 6. The complainant requested an internal review on 27 February 2017 which the MOJ provided, late, on 13 April It revised its position, explaining that its original statement that the High Court does not collate statistics on the number of cases referred to under the President of Family Division s Guidance: radicalisation cases in the Family Courts was incorrect as radicalisation cases in the Family Court are all dealt with in accordance with the guidance above and therefore the MOJ would be able to collate the number of cases referred. However, it determined that the length of time needed to locate and review the files would far exceed the cost and resource limits set by section 12(1) of FOIA. Scope of the case 7. The complainant contacted the Commissioner on 13 April 2017 to complain about the way her request for information had been handled. 2

3 8. The MOJ has explained that the withheld information relates to the number of cases that have been referred to the High Court under the President of the Family Division s guidance about how cases concerning potential radicalisation should be handled within the family court. 9. The Commissioner has considered whether the MOJ is entitled to rely on section 12(1), the cost exclusion, in relation to this request. Reasons for decision Section 12 cost of compliance 10. Section 12(1) of FOIA states that a public authority is not obliged to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit. 11. The appropriate limit in this case is 600, as laid out in section 3(2) of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 ( the Fees Regulations ). This must be calculated at the rate of 25 per hour, providing an effective time limit of 24 hours work. 12. When estimating whether disclosing the requested information would exceed the appropriate limit, a public authority may take into account the costs it reasonably expects to incur in disclosing the information. The estimate must be reasonable in the circumstances of the case. It is not necessary to provide a precise calculation. 13. The Regulations allow a public authority to charge the following activities at a flat rate of 25 per hour of staff time: determining whether the information is held; locating the information, or a document which may contain the information; retrieving the information, or a document which may contain the information; and extracting the information from a document containing it. 14. Below is the MOJ s estimate of the time and cost that would be taken to provide the information falling within the scope of the request: 3

4 Estimated minutes needed to assess each file/record Total Minutes Total Hours Estimated Number of Manual Files , Estimated Number of Electronic Files Estimated Number of Business Units to contact Cost Total Cost , The MOJ said that, in order to determine whether the information was held, it checked its Management Information System and identified 630 children files with a flag to indicate that they have been transferred from the Family Court to the High Court. The MOJ explained there are many reasons why a case would be transferred but that the system does not go into detail. Some of these cases would fall under the President s guidance. The only means of finding out the reason(s) for transfer would be to inspect each file. 16. In addition the files are not held in one location and are spread across England and Wales in a number of different courts. The MOJ estimated that to identify the location of each file would take approximately five minutes per file. With 630 files potentially in scope, this would take an individual staff member 52.5 hours. 17. Further, the MOJ said that not all the files will be easily accessible and some may be archived. To retrieve each court file would take an estimated 10 minutes, meaning it would take 105 hours to collect the files. 18. Once all the files have been retrieved the MOJ said they will need to be inspected to extract the information necessary to determine the reasons for the transfer to the High Court. To identify these reasons would take an estimated 15 minutes per file equating to 57.5 hours to extract the data. 19. For the four listed activities the MOJ estimated it would take 315 hours (as set out in the above table), which exceeds the appropriate limit set by FOIA. It confirmed that as the data is only held in individual court files this would be the quickest and only method of gathering the information. 4

5 20. The Commissioner has considered the arguments submitted by the MOJ and is satisfied that its estimate is reasonable. Even at five minutes per file the cost limit would be significantly exceeded. Conclusion 21. From the information provided, the Commissioner has concluded that the MOJ was correct to rely on section 12 in relation to this request. Section 16 advice and assistance 22. If a public authority estimates that the cost of determining whether or not information is held would be above the appropriate limit, it is not required to conduct searches but should consider providing advice and assistance with a view to helping the requester bring his/her request under the cost limit. 23. Under section 16 of FOIA, therefore, public authorities have an obligation to advise what, if any, information may assist requestors with their requests. 24. In this case the MOJ suggested that any future request should shorten the time period for which the information is sought. It also advised the complainant that as the data sought is contained in court records (eg the age of the child, and where a care order or wardship application has been made), section 32, court records would apply. Other matters 25. Part VI of the section 45 Code of Practice makes it desirable practice that a public authority should have a procedure in place for dealing with complaints about its handling of requests for information, and that the procedure should encourage a prompt determination of the complaint. As she has made clear in her Good Practice Guidance No 5, the Commissioner considers that these internal reviews should be completed as promptly as possible. While no explicit timescale is laid down by FOIA, the Commissioner has decided that a reasonable time for completing an internal review is 20 working days from the date of the request for review. In exceptional circumstances it may be reasonable to take longer but in no case should the time taken exceed 40 working days. The Commissioner is concerned that in this case, it took over 33 working days for an internal review to be completed, despite the publication of her guidance on the matter. 5

6 Right of appeal 26. Either party has the right to appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from: First-tier Tribunal (Information Rights) GRC & GRP Tribunals, PO Box 9300, LEICESTER, LE1 8DJ Tel: Fax: Website: If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website. 28. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent. Signed Carolyn Howes Senior Case Officer Information Commissioner s Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF 6

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