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 about court processes and procedures and highlighted a specific case as an example. The Ministry of Justice (the MOJ ) refused to confirm or deny whether it held the requested information, citing section 32(3) court records and 40(5) personal information. Although following its internal review, the MOJ provided some of the requested information in a general non-case specific basis, it maintained that sections 32(3) and 40(5) applied. 2. The Commissioner s decision is that neither exemption is engaged because the request is not about a particular court case. 3. The Commissioner requires the MOJ to take the following steps to ensure compliance with the legislation: issue a fresh response under the FOIA to all parts of the request detailed in paragraph 5 (apart from part 9) which does not rely on sections 40(5) or 32(3). 4. The MOJ must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court. 1
Request and response 5. On 19 December 2016 the complainant wrote to the MOJ and requested information in the following terms: Please supply me with any documentation, paper or electronic, relating to processes & procedures for: 1. Recording the results of a hearing & communicating them through the organisation(s) 2. Investigating and correcting errors in the recording & communication of judgements 3. Identifying serious errors within the handling of cases and investigating them 4. The sending out of letters to litigants: parties involved (both internal and outsourced);fact-checking and proofreading of communications to litigants. 5. Identifying shortfalls in procedures & training, and rectifying them 6. Removing erroneous CCJ s from your databases and... 1. Ensuring they do not harm the affected individuals during a credit check 2. Taking responsibility for problems ensuing if they have 7. Note-taking on calls with litigants plus the retention and communication of those notes 8. Internal handling of complaints at County Courts, particularly including the process for recording them & commencing an investigation once the court user expresses a wish to complain 9. Statistics (ideally broken down by month & year) for the waiting time for court hearings within: 1. The County Court at Staines 2. County Courts in general, for comparison 10. Statistics (ideally broken down by month & year) for complaints: 1. Against the County Court at Staines 2. Against County Courts in general, for comparison 2
Treat the request as applying to any level of the court service involved in case [case reference number redacted] i.e. the County Court at Staines, the Guildford Hearing Centre, Surrey County Courts & other related bodies. 6. On 6 January 2017 the MOJ responded. It refused to confirm or deny whether it held the requested information, citing the neither confirm nor deny provision in sections 32(3) and 40(5) of FOIA. 7. The complainant requested an internal review on 6 January 2017 which the MOJ provided on 13 February 2017. It responded to all but one question in what it described as a general, non-case specific basis. For part 9 of the request the MOJ cited section 21 (information reasonably accessible by other means) and provided a weblink to that information. Scope of the case 8. The complainant contacted the Commissioner on 20 March 2017 to complain about the way his request for information had been handled. He said he had not asked for case (ie court) records or any form of personally identifying information, so did not agree with the MOJ s reliance on the associated exemptions. 9. The complainant confirmed he is satisfied with the MOJ s response to part 9 of his request (where it cited section 21 and provide a weblink to that information), so this part of the request has been excluded from the Commissioner s investigation. 10. The Commissioner set out to consider whether the MOJ was entitled to rely on the neither confirm nor deny provision in sections 40(5) and 32(3). Reasons for decision Section 40 - personal information 11. Section 1 of FOIA provides two distinct but related rights of access to information that impose corresponding duties on public authorities. These are: (a) the duty to inform the applicant whether or not requested information is held and, if so, (b) the duty to communicate that information to the applicant. 3
12. Section 40(5) of the FOIA sets out the conditions under which a public authority can give a neither confirm nor deny response where the information requested is, or would be, personal data. It includes provisions relating to both personal data about the requester and personal data about other people. 13. There may be circumstances, for example requests for information about investigations or court cases, in which simply to confirm whether or not a public authority holds personal data about an individual can, in itself, reveal something about that individual. To either confirm or deny that the information is held could indicate that a person is or is not the subject of, for example, disciplinary action or a court sanction. If to do so would contravene data protection principles, for example because it would be unfair, then the public authority is not obliged to confirm or deny that it holds the information. 14. In this case, the MOJ has relied on section 40(5) because it considered the request to be for information about the complainant himself. 15. It is important to note that section 40(5) is a class-based exemption. This means there is no need to demonstrate that confirmation under FOIA would breach an individual s rights under the DPA when engaging this exemption. 16. Consideration of section 40(5) involves two steps: first, whether providing the confirmation or denial would involve the disclosure of personal data, and second, whether disclosure of that personal data would be in breach of any of the data protection principles. If held, is the information personal data? 17. The definition of personal data is given in section 1(1) of the Data Protection Act ( DPA ): personal data means data which relate to a living individual who can be identified: (a) from those data, or (b) from those data and any other information which is in the possession of, or is likely to come into the possession of, the data controller. 18. The Commissioner has first considered whether the requested information would be the personal data of any person. The DPA categorises personal data as data that relates to a living individual from which that individual can be identified. 4
19. In the MOJ s view, if held, the information would confirm whether or not the complainant had attended court under the case reference he gave. 20. To clarify whether or not the request did relate to this specific case, on 15 August 2017 the Commissioner wrote to the complainant to ask him why he had cited a case reference if his request is for general court processes and procedures. In reply, the complainant said: I cited the case reference because without a detailed understanding of the many Court Service departments who had been involved in my case, it was simplest to specify that the request applied to any that had been involved in its handling. 21. Given the complainant s comments at the internal review stage, the Commissioner s view of his later clarification is that he had not requested any information specific to the case and gave its number solely as a means of specifying the correct parties for his request to cover ie those courts/parties he was interested in in relation to the processes and procedures. 22. The Commissioner appreciates that the MOJ has not had the benefit of the further clarification; however, she is satisfied that the complainant made it clear as part of his internal review that he was not seeking the requested information in relation to a particular case. Section 32 court records 23. Section 32(3) of FOIA provides that it is not necessary to confirm or deny whether the information requested is held in circumstances where any such information would fall within any of the types of information specified in section 32(1). If the information requested would be covered by section 32(1), section 32(3) will apply. 24. Section 32(1) of FOIA states that information which is held only as part of a court record is exempt from disclosure where the information is held only by virtue of being contained in documents which have been: filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter, any document served upon, or by, a public authority for the purposes of proceedings in a particular cause or matter, or any document created by a court, or a member of the administrative staff of a court for the purposes of proceedings in a particular cause or matter. 5
25. At the internal review stage, the MOJ said section 32(3) was cited to preserve the court s control over court records which are exempt from disclosure because the control and preservation of court records is more important than public access to those records, stating: It is not the intention of the FOIA to provide indirect access to court records. 26. The MOJ told the Commissioner: The FOIA request is specifically relating to case number [case reference number redacted]. Civil cases are handled according to the Civil Procedure Rules. The Civil Procedure Rules do not include any guidance on the court's exercise of its discretion but the court will take account of all the circumstances of the case and the competing principles of open justice and the right to privacy of persons who may be mentioned in court documents. A full explanation was provided to [the complainant] in our letter of 6 January 2017. 27. However, as explained above, the Commissioner is satisfied that the complainant was not asking about any specific court case, and this was made clear to the MOJ when he asked for an internal review. For this reason, the Commissioner finds that his request is not about a court record per se; instead it relates to court processes and procedures. 28. The Commissioner considers that the MOJ has not persuaded her that section 32 would apply given that the request does not relate to a particular court case. She therefore finds that section 32(3) is not engaged. Conclusion 29. In considering all the circumstances of this case, the Commissioner finds that the complainant confirmed to the MOJ at the internal review stage that he was not interested in securing the information in relation to a particular court case. He reaffirmed this during the Commissioner s investigation. 30. As the complainant s request is not related to a specific court case, the Commissioner finds that the MOJ is not entitled to rely on either section 40(5) or 32(3) for the reasons set out above. She therefore requires the MOJ to issue a fresh response to the request as detailed in paragraph 3 of this notice. Other matters 31. During the investigation the MOJ provided the Commissioner, in what it described as being in the spirit of further co-operation, with some additional information relating to the specific questions contained in the 6
FOIA request; this has not made available to the complainant. The Commissioner has not reached a determination on this information as it is not clear whether this is something it wished to provide to the complainant or not. However, as she requires the MOJ to issue a fresh response, she would suggest that it considers this additional information as part of that response. Internal review 32. 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 27 working days for an internal review to be completed, despite the publication of her guidance on the matter. Subject access 33. Although he has stipulated that his request is generic, the Commissioner would like to advise the complainant that if he requires information in relation to any court case involving him personally, he can make a separate request to the MOJ under the subject access provisions of the DPA. 7
Right of appeal 34. 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: 0300 1234504 Fax: 0870 739 5836 Email: GRC@hmcts.gsi.gov.uk Website: www.justice.gov.uk/tribunals/general-regulatory-chamber 35. 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. 36. 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 8