Appeal Number: EA/2005/0002
Freedom of Information Act 2000 (FOIA)
Decided on papers
Decision Promulgated 10/10/2005
David Farrer QC
and LAY MEMBERS
Jenni Thomson and Henry Fitzhugh
THE INFORMATION COMMISSIONER
The Factual Background
"the information in question held at the time when the request is
The subsequent proviso is inapplicable to this case.
"If on an appeal under section 57 the Tribunal considers:
(a) that the notice against which the appeal is brought is not in accordance with the law,
the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal."
The Decision Notice
"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."
(i) That whatever the status of the original tapes, a printed transcript or a copy of the first transcript, produced at the behest of a third party, the Council is not, itself, a "document created by (i) a court …for the purposes of proceedings in a particular cause or matter".
(ii) That the Council, by its letter of 12th December 2002, in which it acknowledged that it held the transcript, conceded that it did not enjoy exempt status since, if it did, no duty to disclose that fact arose.
The Application of S.32(1)
s.32 exemptions or the wording of the section nevertheless require the construction for which the Respondent contends.
"For the purposes of this section, the following provisions of Part II (and no others) are to be regarded as conferring absolute exemption [Diagram or picture not reproduced in HTML version - see original .rtf file to view diagram or picture]"
The emphasis is ours. It may be helpful to identify the broad categories of information identified by s.2(3) and consider, in summary form, in each case, the possible rationale for exemption.
• Information reasonably accessible by other means (s.21);
• Information supplied by the Intelligence Services (s.23);
• Information, disclosure of which might breach Parliamentary Privilege (s.34);
• Information held by either House of Parliament, disclosure of which would interfere with the effective conduct of parliamentary business (s.36(7));
• Personal information (s.40(1) and (2) (Part II));
• Information provided in confidence (s.41);
• Information, disclosure of which is prohibited by statute, community obligations and court orders (s.44).
A brief review of the classes of sensitive information identified in Part II of the Act, to which absolute exemption is denied, strengthens the impression that Parliament intended to confer absolute exemption only where there was an obvious overriding need for it or common sense demanded it.
• Ready availability of information from other sources, hence no practical justification for imposing the statutory duty on the authority;
• Serious national interest in security and effective governance;
• Public interest in respecting undertakings to preserve confidence;
• Regulation of access to particular information by other pre-existing statutory schemes (eg, the Data Protection Act 1998) and/or by the courts.
a court". That depends on the meaning to be given in this context to "a court". We have no doubt that the tapes were created for the purposes of the relevant proceedings, not least as a record for the purpose of any appeal.
The Decision of the Tribunal
David Farrer QC
19th September 2005