Upper Tribunal (Administrative Appeals Chamber)

Peninsula Business Services Ltd v Information Commissioner and SoS for Justice and Lord Chancellor (Information rights : Freedom of information - absolute exemptions) [2014] UKUT 284 (AAC) (12 June 2014)



THE UPPER TRIBUNAL Appeal No. GIA 1528 2013 

ADMINISTRATIVE APPEALS CHAMBER

 

Peninsula Business Services Ltd v Information Commissioner and Secretary of State for Justice and Lord Chancellor (FOIA)

 

Oral hearings were held of this appeal on 14 01 2014 and 11 06 2014.

The appellant was represented at both hearings by Ben Hooper of counsel, instructed by Mark Owen, solicitor.

The first respondent was represented at the first hearing by Holly Stout of counsel, and at the second hearing by Tom Cross of counsel, both instructed by the solicitor to the Information Commissioner.

The second respondent was represented at the second hearing by Gerry Facenna of counsel, instructed by the Treasury Solicitor.

 

DECISION

 

The appeal is dismissed.

For the reasons below, the decision of the First-tier tribunal is not in error of law.  

 

REASONS FOR DECISION

 

1 This appeal concerns how section 32 of the Freedom of Information Act 2000 (FOIA) applies to information that the appellant (Peninsula) requested Her Majesty’s Court and Tribunal Service (HMCTS), an executive agency of the Ministry of Justice, to release to it about parties before Employment Tribunals. I refer throughout to HMCTS as the recipient of the request and one of the respondents, rather than the Ministry of Justice (or more correctly the Secretary of State for Justice and Lord Chancellor) to reflect the reality of the request.

 

2 There is no closed part of the appeal or this decision.

 

Background

3 The specific request made by Peninsula’s solicitor on its behalf was for:

 

“the names and addresses of all employing organisations that are   respondents in receipt of Employment Tribunal claims, for England, Wales and Scotland from 1^st April 2011 to 1^st August 2011.”

 

The request specifically excluded a request for the details of claimants.

 

4 This was not the first time that Peninsula had asked for such information. A previous request had been made to the relevant government department in 2005 for information about respondents before the Employment Tribunals from 1 October 2004 onwards. Matters were then being handled by the Department for Business, Enterprise and Regulatory Reform for the tribunals. That request was refused. In due course it came before the then Information Tribunal in Department for Business, Enterprise and Regulatory Reform v Information Commissioner and Peninsula Business Services Ltd, case EA 2008 0087, decided by that tribunal in 2009 (the DBERR case).

 

5 That decision usefully sets out the background to the request by Peninsula, which I do not need to repeat here. It is sufficient to note that the information requested by Peninsula had previously been published routinely for some decades by the relevant public authority. That practice was ended under the authority of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) with effect from 1 October 2004. The request was designed to use FOIA to provide what those regulations had caused to be withheld from the public record from that date.

 

6 The outcome of that request was the decision of the Information Tribunal that the information requested was covered by the absolute exemption in section 32 of FOIA. It was therefore refused. In so deciding, the tribunal overruled a decision of the Information Commissioner directing release of the information. I deal with the reasons for those decisions below.

 

7 Peninsula felt that it had to accept that decision so did not take any further action in the appeal. Its view changed when it received legal advice following the issue by the Court of Appeal of its decision in Kennedy v Information Commissioner [2011] EWCA Civ 367, [2012] 1 WLR 3542. It was also triggered by the way in which HMCTS held the information requested by Peninsula, namely on an electronic database called ETHOS. I describe that below. 

8 Peninsula therefore made in 2011 what was in effect a renewal of its earlier request but with reference to more contemporary information. That was refused by the Ministry of Justice. The refusal was endorsed by both the Information Commissioner (in decision FS50427263 issued on 23 05 2012) and the First-tier Tribunal, in each case relying on section 32.

 

9 Counsel for Peninsula requested permission to appeal on the grounds that the tribunal had erred in its interpretation of both section 32(1)(a) and section 32(1)(c)(ii) of the Act. The grounds of appeal relied in part on the Court of Appeal decision in Kennedy. A First-tier Tribunal judge granted permission.

 

10 The final background point is that a late stage in consideration of this appeal in the Upper Tribunal the Supreme Court issued its decision in the Kennedy case: Kennedy v The Charity Commission [2014] UKSC 20. I had at that stage already held an oral hearing but, exceptionally, directed a second hearing so that all parties could deal with the implications for this case of that important decision. That hearing clarified and focussed the issues in dispute in this appeal, and I am grateful to counsel for all three parties in assisting that process.

 

The relevant legislation

11 The appeal involves detailed consideration of only one section in FOIA, section 32. That section was the focus of consideration at each of the four judicial levels in the Kennedy case. The relevant legislation is set out fully in the judgment of Lord Mance in the Supreme Court (from paragraph [16]) in Kennedy. I adopt that structure and need to set out here only section 32.

 

12 Section 32 provides:

 

“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.

 

(2) Information held by a public authority is exempt information if it is held only by virtue of being contained in-

(a) any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or

(b) any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration.

 

(3) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of this section.

 

(4) In this section-

(a)“court” includes any tribunal or body exercising the judicial power of the State,

(b)“proceedings in a particular cause or matter” includes any inquest or post-mortem examination,

(c)“inquiry” means any inquiry or hearing held under any provision contained in, or made under, an enactment, and

(d)except in relation to Scotland, “arbitration” means any arbitration to which Part I of the Arbitration Act 1996 applies.”

13 This appeal is concerned with section 32(1) read with section 32(4), as it concerns records held by or for Employment Tribunals. The Kennedy case was concerned with section 32(2). However, it is common ground that the two subsections 32(1) and 32(2) are to be interpreted in the same way. See paragraph [25] of the decision of Lord Mance in the Supreme Court. Consequently I am bound to adopt the interpretation of section 32(2) by the Supreme Court when applying section 32(1). The reason for the two subsections being in parallel is that subsection (2) applies to inquiries while subsection (1) applies to courts and, when read with subsection (4), tribunals. Limited reference was made in Kennedy to the application of the section to tribunals.

 

14 It is common ground that the definition in subsection (4) has the effect of applying subsection (1) to Employment Tribunals. It is also common ground that, having taken in that point, I am concerned only with section 32(1)(a) and section 32(1)(c)(ii). To repeat those provisions, with subsection (4) read in:

 

  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 tribunal for the purposes of proceedings in a particular cause or matter,

… or,

(c) any document created by-

…

(ii) a member of the administrative staff of a tribunal,

for the purposes of proceedings in a particular cause or matter.

 

That language was subject to close analysis by the parties. Were I to embolden all the phrases on which a party put reliance, most of that text would be emboldened. But it is at the same time important not to take individual phrases out to the context of the section as a whole when interpreting them. 

 

 

The Tribunal’s records: information and documents

15 The first issue that has emerged in this appeal is a practical one: how is the information sought by the appellant held by HMCTS? This arises because Peninsula is not seeking any documents produced by tribunal judiciary, but the names of parties who have filed documents with the tribunal at a stage when no judiciary have yet been involved.

 

16 The way in which information was gathered and held by HMCTS for the Employment Tribunals is set out at paragraphs [18] to [29] in the First-tier Tribunal decision. That was not questioned by any party in this appeal, and I adopt that description. In summary, the way in which HMCTS received and held details about parties in Employment Tribunal cases is provided for or authorised under the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.  (I put that in the past tense as there are ongoing changes taking place in the way HMCTS held and holds information and no attempt was made at this stage to update the details).  Parties filled in standard forms to provide the Employment Tribunal and HMCTS with relevant details. Those forms were (and are) forms ET1 and ET3. The current forms are on the GOV website: https://www.gov.uk/government/publications/employment-tribunal-claim-form.

and

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/301437/ET3__-_Response_Form_-_for_Transitiional_Period.pdf 

The website makes it clear that these forms must be used. In so doing it echoes the 2004 Regulations. It is not disputed that the information in those forms is within the exemption provided by section 32(1)(a).

 

17 On receipt in an Employment Tribunal office, the information in the forms is fed into a local electronic case management database known as ETHOS. As the First-tier Tribunal stressed, this is maintained locally, not nationally. The database (or the information in it) is not public. Further, as forms ET1 and ET3 can be and are returned electronically, the information in them may be migrated electronically into the database. Otherwise that migration would have been undertaken by HMCTS staff. As a matter of practice, therefore, the information held in ETHOS is derived from information that parties are required to provide at the start of their claims or defences, that requirement being imposed by the relevant regulations.

 

The appellant’s arguments

18 Nonetheless, it is argued for Peninsula that ETHOS is to be regarded for these purposes as a separate document or documents. That takes them outside the scope of section 32(1)(a). It is also argued that they are outside the scope of section 32(1)(c). This is because ETHOS is not a “document created …for the purposes of proceedings in a particular cause or matter”. As a consequence, the argument is that HMCTS is not entitled to rely on section 32 in refusing the information.

 

19 Behind that argument are a series of arguments based on the precise wording of section 32. It is submitted that, uniquely in FOIA, section 32 depends for its operation on the type of document in which the information in question is stored. The section applies to “information …contained in … any document”. The focus, it is argued, is on the type of document not the information itself. It is the document to which the exemption applies, not the information.

 

20 Applied to the facts of this case, it is argued that ETHOS is a document or a series of documents (one document at each of the locations holding the database system).  The point that then arises is how and why that document, or those documents, is or are created. It is only if a document is created by a member of the administrative staff of a tribunal, and that this is done for the purposes of “proceedings in a particular cause or matter” that it is within the section 32 exemption.

 

21 It is submitted that on the facts it cannot be said that ETHOS exists as a document produced for the purposes of the proceedings in a particular cause or matter. On the contrary, it is a dataset about all the current cases in an office or region. This is emphasised by the fact that it is not a “court document” under judicial control.

 

22 It is further argued for Peninsula that the meaning of “document” in section 32 is to be read as consistent with that used in the Civil Procedure Rules. Those Rules operate at the level of documents, not the level of items of information. Counsel submitted that there is no case to show that databases can be divided up for these purposes.

 

23 Mr Hopper also submits that even if that argument does not hold good and ETHOS can be regarded as a series of documents even when held at one location as part of one dataset it still does not meet the full requirements of section 32(1)(c). This is because the datasets in ETHOS are, on the admitted facts, held for multiple purposes. They are used to manage the tribunals and produce relevant statistics as well as for individual cases. These multiple purposes took ETHOS outside the section. It would be protected only if the sole purpose of holding the information in the document was that of conducting the specific proceedings.

 

24 Support was offered for that approach to “purpose” by reference to the decision of the Supreme Court in BBC v Sugar (No 2) [2012] UKSC 4, [2012] 1 WLR 439. That case concerned the terms in which the BBC was listed in Schedule 1 to FOIA. The BBC is one of several authorities listed as a public authority within the scope of FOIA only “in respect of information held for purposes other than those of journalism, art or literature”. The Supreme Court debated fully how that listing dealt with cases of multiple purposes. Its conclusion (with a dissent) was that information held to any significant degree for a relevant purpose was within the scope of the provision even if it were also held for other purposes. I was taken by Mr Hooper to the short judgment of Lord Phillips (paragraphs [61] to [67] of the decision) and in particular to paragraph [67]. However, I not that the operative decision in that judgment is in paragraph [61] and that the discussion that follows “is academic but nonetheless of importance”. It stresses the need for a purposive construction in context of any provision that is ambiguous. It is that approach, rather than its specific application to the provision in issue there, which I take to be the approach to be adopted here.

 

25 The appellant’s argument was resisted by the Information Commissioner, who relied on both the decision of the First-tier Tribunal in this appeal and that of the Information Tribunal in the DBERR case as being correct. The argument for HMCTS agreed with this approach. The concern was not with the precise document in which something is held at a particular time but how that information came to be held at all. That argument turned on interpretation of the whole of the test applicable in section 32, not individual parts of it. And the argument was advanced both to the First-tier Tribunal and discussed by it, by reference to various levels of decision in the Kennedy case.

 

26 As both the appellant and the respondents argued that they found support in their arguments in that case before the Supreme Court as well as at lower levels, I turn to that case before taking the various arguments further.

 

The Kennedy case

27 The case started in the Information Tribunal (Case EA 2008 0083) and then went on appeal by the appellant to the High Court ([2010] EWHC 475 (Admin), [2010] 1 WLR 1489, the Court of Appeal - see [2011] EWCA Civ 367 (following which it was remitted to the tribunal) and again at [2012] EWCA Civ 317 - and finally to the Supreme Court [2014] UKSC 20.

 

28 I do not need to set out the facts here beyond the barest outline as the recent Supreme Court decision tells the whole story. The case is important because it concerned the proper interpretation of section 32. The specific application in question in that litigation was the application of section 32(2) to inquiries held by the Charity Commission made by reference to a request under FOIA from a leading journalist. The Charity Commission had refused to grant the journalist access to the bulk of material it held in connection with a series of high profile inquiries the Commission had held. The journalist appealed, seeking to use the FOIA procedure to obtain all the information available.

 

29 All parties accepted before me that the main part of the decision of the Supreme Court in that case was not of direct assistance because it was about the interaction of the FOIA provisions both with human rights legislation and with alternative remedies in the specific context of reports of inquiries held by the Charity Commission. But, as noted, all parties found support in various aspects of the argument - and indeed in what was not argued - so the case requires close attention at that more general level.

 

30 I start by agreeing with the common ground that was clear at the second hearing in the Upper Tribunal. The appellant has at no point argued, and does not seek to derive any support from, any issue of human rights. That was the main focus of the later stages in the Kennedy litigation. I need comment on it no further.

 

31 The Supreme Court also devoted considerable attention to the question where there were alternative means by which the appellant in that case could pursue its objective rather than by the FOIA request, for example by using the courts. It was common ground before me that I was not asked to consider those issues in this context. I therefore take discussion of the issue of any further remedy by judicial review or other routes no further. In that, I take the same approach as did Mr Cross for the Information Commissioner in argument. That may be a concern for the appellant and HMCTS but it is not a concern for me.   

 

The steps identified

32 The key questions in the majority decisions in Kennedy before the Supreme Court were summarised by Lord Wilson (at paragraph [171]) as follows:

 

“But the argument which finds favour with the majority of the members of this court is that section 32(2) of the FOIA provides an absolute exemption from disclosure - at any rate under the FOIA - of any of the information in any of the documents held in the lever-arch files, apart from that contained in about seven documents which the Commission received or created following the end of the third inquiry and which have therefore already been disclosed. The four steps in the argument are (1) that all the other information is contained in documents placed in the Commission’s custody, or created by it, for the purposes of the three inquiries; (2) that the Commission holds the information only by virtue of its being so contained; (3) that, on the application of   section 32(2) of conventional canons of construction, facts (1) and (2) satisfy the requirements; and (4) that the rights of Mr Kennedy under article 10 of the European   Convention on Human Rights ….are not such as … to require that, so far as possible, section 32(2) be construed differently so as to be compatible with them.”

33 My concern in this case is with steps (1) to (3), but not with step (4). Mr Facenna argued that if I followed those steps, I must reach the same conclusion as did the First-tier Tribunal and reject Peninsula’s argument. He pointed out that in the following paragraph ([172]), Lord Wilson commented that step (4) was the only debateable step. Mr Hooper did not agree. So I must take matters more slowly. Before taking each step I remind myself that on the clearest authority the arguments applying to subsection (2) are exactly those to be applied to subsection (1).

 

34 The first step is that the information requested is contained in documents placed in the tribunal’s custody, or created by it, for the purposes of a particular case or cases. Lord Mance considered this step in his judgment when considering the interpretation of section 32. As he noted at paragraph [24], the purpose test found in the same terms in both section 32(1) and section 32(2) is ambiguous. It could refer to the purpose at the time a document or information was filed or placed in the custody of the court or created by or for it, or a later time when the request for disclosure was made. He noted that the Court of Appeal accepted the historical rather than current purpose as determinative. On careful analysis he concluded at paragraph [28] that the reference to purpose was to the purpose when documents were “placed” and “created” not to the time when they are held. That was consistent with the approach taken on the issue immediately before the court, namely whether the absolute exemption could become time-expired when a case or inquiry ended rather than after the general period of 30 (or fewer) years. He could see no ordinary construction that would have the effect of allowing early expiry of the exemption rather under the general rule for releasing public records.

 

35 Applied to this case, the question of purpose is to be determined when the relevant information came to be filed with or placed with the tribunal.

 

36 The second step is that the tribunal holds the information only by virtue of it being in the documents in step (1). This point was addressed specifically by the Information Tribunal in its decision in Kennedy at paragraph [87]:

 

“The words “held only by virtue of being contained in” simply provides a causal connection between the presence of the document in the public authority’s records   and the placement with the person conducting the inquiry. However we find it does limit the exemption. If that information was also received independently from some   other source it may not be exempt.”

 

37 That reasoning was expressly adopted by Calvert-Smith J in the Administrative Court (at paragraph [70] of his judgment). It was also subject to quotation and consideration by Ward LJ in the Court of Appeal. At paragraph [25] he commented:

 

“The natural meaning of section 32(1) is that the conditions set for the exemption to apply are that: (i) the information is contained in a document filed with the court or served upon or by public authority or created by the court in each case for the purposes of the proceedings in the particular cause or matter; and (ii) the information was held by the public authority at the time of the request for its disclosure only by virtue of being contained in such a document.”

After further consideration he concluded that this applies also to section 32(2), which was the matter before the court for decision.

 

38 I agree with the view taken by the Information Commissioner in this case about the relevance of that passage and the judgment of Ward LJ generally (at paragraph [19] of the Commissioner’s decision FS 50427263)

 

“Although the complainant quotes from paragraph 25 of the Kennedy case, Ward LJ’s conclusion is provided at paragraph 43 of the case. In the Commissioner’s view, in dismissing the appeal Ward LJ accepted that the reference in section 32(1) to information being held only by virtue of it being contained in documents filed for the purposes of court proceedings, refers to the reasons why such documents were originally acquired, rather than any purposes for which they may continue to be held by a public authority.”

 

I read the judgement of Lord Mance as endorsing the reasoning of Information Tribunal as well, although the particular passage is not quoted. That provides a ready base for Lord Wilson’s comment, for this step at least, that this is no longer debateable.

 

39 The third step is that of applying those matters to the specific case. This brings the analysis to, or back to, the question of the specific focus of this application, namely the information required and the document or documents in which that information is located.

 

To what does this request relate?

40 Mr Hooper’s argument for Peninsula picks up a point that, certainly at first sight, is not without difficulty. The parties to a case before the Employment Tribunal, it is accepted, must fill in the relevant details in the forms ET1 and ET3. And it may be that those forms continue to be available for case management of the individual appeals. But the standard practice is to move those details to the relevant local ETHOS database. At that point the information is removed from the context of the individual case and forms a small part of the dataset in the ETHOS database. Further, that dataset is accepted as one being used for a variety of purposes, many are not specific to “a particular cause or matter”.

 

41 If this point is linked with the contention that ETHOS is a document separate from the forms ET1 and ET3 (which in one sense is obviously the case) and the further contention that section 32 applies to documents not information, then an arguable case is established.

The critical points in this argument are the contention that ETHOS is a separate document or, rather, a separate series of documents and that section 32 applies to those documents rather than the information in them.

 

42 As was rightly pointed out in argument, “information” in FOIA is defined as meaning information recorded in any form (section 84). If the information is not recorded, then it is normally beyond the scope of the Act. That is the nub of the oft-recurring argument about the difference between information and documents, an issue I discussed at some length in Innes v Information Commissioner [2013] UKUT 188 (AAC), adopting other authority. I do not need to repeat that analysis here. Like this case, that case considered problems with information held on databases and, to use the language of the 2012 amendment to FOIA examined in that decision, in datasets that are echoed to some extent in this case.

 

43 As Mr Facenna pointed out in argument, the issue of identifying the relevant documents surfaced at earlier stages in the Kennedy appeal. The matter was discussed in some detail by the Information Tribunal at paragraphs [49] to [60] of its decision. The Tribunal took an expansive approach to the definition, rejecting a narrower meaning advanced for Mr Kennedy by Mr Coppel QC. It saw no basis to confine the term to hard copy rather than electronic records or the form in which information was lodged. The point was taken up before the Administrative Court but with an equal lack of success. At paragraph [72] Calvert-Smith J asks himself “what is the meaning of the word “document” in section 32 of the 2000 Act?”.  After rehearsing the arguments the judge decided (at paragraph [79]) that:

 

“It seems to me that for the Act to work at all - and in particular for section 32 to work at all - the word “document” must mean what everyone now thinks it means and includes both and electronic copies of documents”.

 

Mr Facenna pointed out that that was where the appellant in that case left the argument. It did not resurface in the higher courts.

 

44 My view is that this is no longer a problem. The time has now passed when a look at the current usage of the terms “document” and “information” can be confined to printed or written matter only even in the context of the operation of courts and tribunals. I have no hesitation in saying that an electronic record can be regarded as a document in an appropriate context. Whether, on that basis, ETHOS is one document or a small series of documents or - the practical reality - a series of large datasets held in a common form software programme accessible in different ways to produce different screened results, must be a matter of evidence and fact as much as of law. What matters, in my view, is the content - the information - not the form.

 

45 That is emphasised in the common drafting of the sections in Part II of FOIA, detailing each of the exemptions. Nearly all the operative sections in that part (sections 21 to 44) start with the word “information” in exactly the same way as section 32 starts despite that fact that some purists might regard this as a twist in the grammatical presentation of the text of the relevant sentence. Those few sections that do not (for example section 36) also rely on the term as the first word in the relevant operative subsections. That is no accident. It is  a deliberate emphasis by the drafter which Parliament has accepted in full. The concern in each of these sections, as in the Act as a whole, is with information not documents. I see nothing in the drafting of section 32 when read alongside those other sections that supports the argument that in some way that section is unique in its focus on documents rather than information.   

 

46 If the focus is placed on the need for recorded information to be present for any of the provisions of FOIA to become engaged, the contended uniqueness of section 32 melts away. As the title to the section itself states, the concern is with “court records, etc.” but, put the long way round, this is a concern with information recorded by or for a court. That recording can be achieved in any appropriate way. In my view the term “document” in section 32 means no more than the form or format (paper, electronic, audio, video or otherwise) in which the information is recorded. I agree with the submissions for the Information Commissioner that the fact that the “court record” in question is a local database rather than a form filled in a claimant or respondent makes no difference to the application of section 32 if the recorded information is the same. 

 

47 On that basis, the third step is largely a matter of fact. How and where did the recorded information come from? The answer, on the accepted factual basis on which this case came to the Upper Tribunal, is that the parties completed the relevant forms ET1 and ET3 (or their previous equivalent) as they were required to do. Did the tribunal hold the information only by virtue of that? The evidence is that these forms are the sources of the data migrated either automatically or by an individual officer of HMCTS staff to the relevant ETHOS. Why did HMCTS acquire that information? The answer is that the parties were required to provide that information by regulation so that they could start, or in the case of the respondent defend, an action.

 

48 It has been accepted in argument for the purposes of this appeal that the information in the forms ET1 and ET3 is protected by section 31(1)(a) from disclosure by use of the FOIA procedures. Given that that is the source, and on the evidence before the tribunal the only source, of the information that is migrated to ETHOS, then it must follow that the information is also protected from disclosure by section 32(1)(c).

 

The DBERR case

49 I have not in this analysis paid attention to the decision of the Information Tribunal in the DBERR case in which Peninsula sought unsuccessfully to seek similar information. It is of course not binding on me. But it is useful to note whether any of the above reasoning questions that decision or reaches the same conclusion. I note that all three members of counsel before the Information Tribunal in that case were also involved in this appeal, so I did not expect any surprises.  That decision emphasises one point relied on in the Kennedy appeal and in argument in this case but on which I have not focussed in my approach. Courts and tribunals are not public authorities within the scope of the FOIA. But the ETHOS database is maintained not by the tribunal but by HMCTS, part of a public authority that is within the scope of FOIA. As was observed by the tribunal in the DBERR case, the relevant records were being held for tribunal purposes. To allow the absolute exemption in section 32 to be sidestepped because documents or information were handled for the tribunal by a public authority, rather than by the tribunal itself would limit the authority of tribunals and was not what Parliament intended by the section 32 exemption. I have no hesitation in agreeing with that. The tribunal then considered, as is considered above, whether ETHOS is a document. This was rejected in short form by the tribunal. So was the argument as to the purpose for which information was held on ETHOS. The tribunal’s conclusion, after hearing much the same arguments as surfaced in this appeal, was that:

 

[57] We find, having considered all the evidence and arguments in this case, that the requested information is held only by virtue of being contained in a court record and is therefore exempt under s. 32(1) and therefore the appeal succeeds.”

 

50 For completeness, I must add the explanation that this was an appeal by DBERR against a decision of the Information Commissioner supporting the application by Peninsula. One of the issues in that appeal was that DBERR had not claimed the benefit of section 32 when the matter was considered by the Information Commissioner. The Commissioner therefore did not take that into account when directing disclosure. The first issue to be decided in DBERR by the Tribunal was whether the section 32 exemption could be claimed for the first time before the Tribunal. The Tribunal found that in the particular circumstances of the case the exemption could be claimed late. Having admitted the late claim, the Tribunal found it decisive and hence allowed the appeal.

 

Conclusion

51 I therefore do not agree that section 32 is in any way a unique section. Its focus is on recorded information. If that recorded information came to be held within the Employment Tribunals in ways within the scope of section 32 then HMCTS is entitled to claim an absolute exemption from having to comply with a request for disclosure under FOIA, whatever other courses of action might be open to seek disclosure. In my view the Information Tribunal in DBERR was correct in reaching that conclusion in law on Peninsula’s earlier request. My conclusion in this appeal is that, while the matter is not free from difficulty, the First-tier Tribunal was right in reaching the same conclusion with regard to Peninsula’s new application. I must dismiss the appeal.

 

 

David Williams

Upper Tribunal Judge

13 06 2014

 

[Signed on the original on the date stated]