2 new decisions from the Information Tribunal

Two new decisions have been issued by the tribunal - both overturn the Information Commissioner's decisions.

Mr P Harper v The Information Commissioner (PDF 90KB)

This case involved an information request to the Royal Mail. The Tribunal upheld the Commissioner's decision and also considered the matter of deleted electronic records: if a public authority has information that has previously been held on a computer but has been deleted, that does not necessarily mean that the information no longer comes within the scope of the Act.

"The extent of the measures that could reasonably be taken by a Public Authority to recover deleted data will be a matter of fact and degree in each individual case. Simple restoration from a trash can or recycle bin folder, or from a back-up tape, should normally be attempted, as the Tribunal considers that such information continues to be held. Any attempted restoration that would involve the use of specialist staff time, or the use of specialist software, would have cost implications, which could be significant. In that event, the exemption arising from exceeding the appropriate limit , set from time to time under Section 12 of the Act, might be relied upon by an authority. Also it is relevant that the 20 day time limit itself gives an indication of the period for which an authority should strive diligently to comply with a request."

Mr A Mitchell v The Information Commissioner (PDF 98KB)

This case involved a request for a transcript of proceedings in a criminal trial of a member and two officers of Bridgnorth District Council at Wolverhampton Crown Court. Those proceedings, so far as recorded in the transcript, were conducted in public. The Council refused the request which had been lodged before the Freedom of Information Act 2000 came into force, acknowledging its possession of the transcript but stating that there was no authority to release it to members of the public.

By February 2005, when the written request which complied with s.1 was received by the Council, the transcript was no longer held; it had been shredded. The Council had claimed the information was exempt under s.32(1)(c) because it was a document created by a court.

"The whole thrust of the Act is to confer a general right to information held by public authorities, subject to specified exemptions, either absolute or qualified. Standing back from the detailed provisions of the Act, it is far from clear to us why, as a matter of policy, anybody wishing to read a transcript of court proceedings, which took place in public, should not be able to do so (subject to reasonable notice and the defraying of reasonable costs)...

Where the transcript is held, not by the court but by a public authority, subject to the Act, neither a party to the litigation nor subject to any order of the court, the reason for granting exemption to the information which it contains is still less obvious...

...we find no indication that the courts themselves seek to restrict the dissemination of transcripts of public hearings; nor do we see why they should. The fact that the Council, not itself a party to the criminal proceedings at Wolverhampton Crown Court, could readily obtain a copy on payment of a substantial fee suggests the opposite...

We are nevertheless driven to the conclusion that s.32(1)(c)(i) must refer to judicially created documents, though the drafting could have been clearer. Such a construction plainly excludes a transcript from the application of s.32(1)(c), not because the person recording proceedings is employed by an outside agency but because he is not the judge."

The Tribunal found that the Commissioner's decision was not in accordance with law. Since the information was no longer held by the Council the Tribunal could not require the authority to reacquire the information: "a bizarre concept which seems at odds with the purpose of the Act." The Tribunal accordingly allowed the appeal but substituted no notice requiring action by the Council.

See all the decisions on the Information Tribunal website: