Derek Moss v Information Commissioner & Anor

“I wish to may a FOI request.

I've been told that the courts have a policy or practice whereby any claims filed by a litigant in person which raise claims for breach of Human Rights Act 1998 are referred to a judge for review before being served. Please provide any records relating to this policy or practice, including but not limited to records showing which statute, rule or practice direction provides for this departure from the normal process of serving claims; records showing what the purpose of this policy or practice and what options are available toa judge when such a claim is referred to them, other than to direct that the claim be served.

I've been told that the courts have a policy or practice of disregarding CPR [Civil Procedure Rules] 10.2 and CPR 12.3 and not actioning valid Requests for default judgment (which are ordinarily granted automatically by the court staff as an administrative decision if no acknowledgment of service or Defence has been filed and the time for doing so has expired) where a claim has been referred to a judge because it includes claims for breach of Human Rights Act 1998 and the judge has directed that it be transferred from the CCMCC [County Court Money Claims Centre] to another court office. Please provide any records relating to this policy or practice, including but not limited to records showing which statute, rule or practice direction provides for this policy or practice; records showing the reason for this policy or practice; records showing how a claim is expected to be dealt with if the court staff can't process a Request for default judgment because of this policy or practice but the claim can't be heard because the Defendant has decided to ignore the proceedings”

Please also provide the following:

any records relating to DDJ [redacted] decision on [redacted] to transfer claim [redacted] to the County Court at [redacted] for the application to be listed for hearing (on notice) and served, including any records showing which application the learned judge was referring to and any records showing what was served on the Defendant as a result of this Order;

any records relating to DDJ [redacted] decision on [redacted] to "list for hearing for further directions and case management", including any records showing why the learned judge directed this hearing when no acknowledgment of service or Defence had been filed, the time for doing so had expired on [redacted] and a Request for default judgment had been filed on [redacted] ;

any records relating to DDJ [redacted] decision to stay the claim on [redacted], including any records showing why the learned judge had "concerns about whether service has been effected on the Defendant".

[ tribunal note -The redacted information identifies the judge, the court, the case number and the relevant dates, it did not identify the parties to the litigation]

“I can neither confirm nor deny if the MoJ holds the information that you have requested. Under sections 32(3) and 40(5) of the FOIA we are not obliged to confirm or deny whether we hold information that relates to court records and to do so would contravene any of the principles set out in Article 5(1) of the General Data Protection Regulation and section 34(1) of the Data Protection Act 2018.”

“The first two parts of my request are for records relating to matters of policy or practice, not for court records relating to a specific cause or matter which would identify any individuals. So s32(3) and 40(5) of FOIA which you have relied on are inapplicable.

I also requested records relating to the decisions by three judges in a specific case where I am the claimant as such this was a request for data that relates to me and should have been processed as a subject access request as per the Data Protection Act 2018 and GDPR. … in any event the ICO’s guidance explains that a request does not have to include the phrase “subject access request” as long as it is clear that the individual is asking for the only legal own personal data”

On 3.9.20, it refused all of my requests, relying on s32(3) (court documents relating to a specific case) and s40(5) (personal information).

…

On 1.10.20 I received the internal review response, upholding the decision to rely on s32(3) and s40(5) to refuse my request for the documents relating to general policy or practice.

My complaint is that these reasons are inapplicable, as I explained in my internal review request on 3.9.20, as the documents relating to general policy or practice that I requested do not relate to a specific case or identify any individuals. I am not complaining about the mistake in treating the latter part of my request as a FOIA rather than a SAR on 1.9.20 and refusing to provide that information.

The focus of my investigation will be to determine whether the MoJ handled the first two parts of your request in accordance with the FOIA. Specifically, I will look at whether the MoJ is entitled to rely on exemptions as a basis for refusing to confirm or deny whether it holds the requested information.

You have clarified the scope of your complaint is that you require only general policy

documents, and not any specific details of specific cases or any personal data. Therefore, we can confirm that for general policy information the MoJ previous Neither Confirm Nor Deny exemptions S32(3) and S40(5) of the FOIA no longer applies to that specific data.

Your clarified FOIA request has been handled under the FOIA.

I can confirm that the MoJ holds the general policy information that you have requested, and I have provided it below.

The MoJ has still not complied with my request.

Contrary to what you have said, my complaint was not about "the MoJ's refusal to confirm or deny holding information" within the scope of the first two parts of my request. It was a complaint about their failure to comply with FOIA and provide the requested information. They have now confirmed that they hold that information and that it is not subject to any exemptions but they haven't provided any of the documents or records which I requested.

Their letter discusses the ways in which a claim can be started and confirms that the MoJ has a policy whereby claims which raise issues under the Human Rights Act 1998 and are filed on paper AND the claimant is a litigant in person, are referred to a judge before being served on the defendant, but not where the claim is filed electronically by a litigant in person, or where it is filed on paper by a solicitor.

I already knew this, because the court staff had told me about this policy. Hence my request, which the MoJ has quoted in its letter dated 30 April 2021

…

My request clearly requested records relating to "a policy or practice" and no-one could have reasonably read those parts of my request as requesting records about a specific case. [tribunal’s emphasis]

….

So I reject the MoJ's assertion that I clarified my request in my complaint to the ICO and that prior to that, it wasn't apparent that I was seeking documents relating to a general policy or practice.

I'm disappointed that you think that the MoJ has complied with my request, despite having not provided me with any of the documents that I requested. [tribunal’s emphasis] Please proceed to investigate my complaint.

The ICO in an e-mail dated 7th July, advised MoJ you were dissatisfied with MoJ's response to your FOIA request. This reply from the MoJ provides further information, and clarification, regarding your Freedom of Information (FOIA) request 200811013, and Internal Review (IR) 200903026, which we hope will help to informally resolve this case.

In order to provide context to the information that was disclosed, I can confirm how the information that the MoJ disclosed is held. The information that was provided in our previous response to you, was an amalgamation of advice given to a previous responder, by the Court managers, at each of the three different sites, listed in the response, in order for us to provide an overview of the process. The information on court processes, and procedures, are held within Job Cards, Standard Operating Procedures, and Knowledge Banks.

For your advice and assistance, I can advise that general information about how and where to start claims can be found below.

….

MoJ can advise that the authority to diverge from any administrative process, and involve a judge, is held within the Civil Procedure Rules (CPR 3.2). MoJ has to advise that the we do not hold anything that specifies what those situations might be, just that it is within the general Case Management powers for a court officer to refer.

No further information is held that can be disclosed to you. The searches that were previously undertaken by the original FOIA response to check this still stand. There may be some court level processes only, held by each individual court, but searches for that information instead, would fall under Section 12(1) (costs) exemption of the FOIA. [tribunal’s emphasis]

For your information MoJ can advise that Section 12(1) of the FOIA means a public authority is not obliged to comply with a request for information if it estimates the cost of complying would exceed the appropriate limit. The appropriate limit for central government is set at £600. This represents the estimated cost of one person spending 3.5 working days determining whether the department holds the information, and locating, retrieving and extracting the information.

A search of the MoJ/HMCTS Intranet did not provide any other further information we could provide you to assist, or answer your request. Another, search of the civil procedure rules, was also undertaken, but did not provide any further information, other than that previously disclosed to you about section 3.2.

it must hold documents relating to a policy or practice which the CCMCC, HMCTS and the MoJ have all confirmed exists, of referring certain claims filed by litigants in person on paper to a judge before serving them,

…

The MoJ has been in breach of Part 1 FOIA in respect of both parts of my request since it

first refused it, in its letter dated 1 September 2020, by relying on inapplicable exemptions

and the Commissioner should find it in breach of Part 1 FOIA for failing to either comply

with my request or provide a valid reason for refusing it within 20 working days and she

should order it to comply with both parts of my request and provide the relevant documents

now.”

Where section 12 applies to one part of a request we refuse all of the request under the cost limit as advised by the Information Commissioner’s Office. In this instance to determine if all of the information requested is held, including any local policies, and answer a question on how the general overarching processes, are specifically interpreted in each court, that would require contacting 95 county courts. Each court would need to identify if there are any local practices in place for processing a claim under the Human Rights Act. Staff would have to conduct searches of their local computer and paper documents if necessary. They would then need to extract and collate the information before returning it which would exceed the appropriate limit. MoJ therefore do not know whether we hold the information, but to determine that fact it would exceed the appropriate cost limit under s12 (2) FOIA. Consequently, we are not obliged to comply with your FOI request.

Although MoJ cannot answer your request at the moment, we may be able to answer a refined FOI request within the cost limit. You may wish to consider, for example submitting a new FOI request, asking for information on local policies, but from only a few specific courts, and during a specific and short time period, which could reduce the volume of the request. Please be aware that we cannot guarantee at this stage that a refined request will fall within the FOIA cost limit, or that other FOI exemptions will not apply.

The Appeal

“That the Tribunal find the MoJ breached my rights to access information under FOIA and orders it to provide the information requested, or to provide s.16 advice and assistance to enable me to reformulate my request to come within the s.12 cost limit.”

“there was also a breach of section 1, as having failed to identify an applicable exemption in its response dated 1 September 2020, the MoJ was obliged to notify me whether it held the requested information and if so, to provide that information, within 20 working days of the request, which it failed to do. It admitted in its letter dated 30 April 2021, after I complained to the ICO on 2 October 2020, that it held the requested information and the ICO should have made a decision at that point, as per his policy.”

“…where a request is received with more than one possible meaning, the public authority must ask the requester to clarify which interpretation is correct; that it should never attempt to guess which meaning the requester intended; that where background and context is referenced in the request, including ongoing dealings or correspondence between the authority and the requestor, and it has the potential to alter the request’s objective meaning, the authority must take it into account; that if having done so, the request is unclear or ambiguous, or it is apparent there is another possible interpretation, the authority must seek clarification from the requestor.

This is applicable to my request, because my email also contained a SAR referring to details of a specific case, so it should have been apparent that my two FOI requests, which both started “I’ve been told that the courts have a policy or practice…” related to what I had been told by the court staff at the courts that I’d had dealings with, i.e. the CCMCC and Kingston County Court.

Even if that hadn’t been apparent from my request email, my internal review request referred to a letter from Richard Redgrave, Head of Customer Investigations for HMCTS, dated 7 August 2020, in which he told me I would need to make a FOI for information about the specific case. This was a “reference to ongoing dealings” between myself and the authority and the MoJ should have taken this background and context into account.”

The Appellant advances two grounds of challenge. Notably, no challenge is made in respect of the MoJ’s reliance on the s.12(2) exemption, and that substantive issue is therefore not considered further here.”

“S.1(1), including the duty to confirm or deny, is disapplied by ss.12(1)-(2). In particular, by virtue of s.12(2), there is no obligation to comply with the s.1(1)(a) duty to confirm or deny where the estimated cost of such compliance would exceed the appropriate limit. The MoJ maintains (and the Commissioner agrees) that s.12(2) is made out on the facts of this case – importantly, the Appellant does not challenge this finding.”

At the initial stage, the MoJ reasonably construed the Request as a request for information relating to specific cases, given that it was plainly interlinked with requests about decision-making in specified claims. At that stage, the MoJ did not consider that there was ambiguity, based on the wording of the Request, and did not therefore need to clarify the Request.

During the course of the ICO investigation, the MoJ properly understood the nature of the Request, as described by the Appellant, to identify the information sought and responded accordingly. There was no ostensible confusion at this stage as to national versus local policy, and there was therefore no requirement to seek any clarification.

No reasonable person could interpret the request as asking for local policy information held by 95 courts. The only reasonable interpretation was that it was requesting national guidance / polices, or if that didn’t exist, the policies or practices of the courts which the Appellant had dealings with and had complained about.

However, there was nothing in these paragraphs limiting the scope of the Request in the manner that the Appellant now claims. It is also notable that the Appellant appears to be stating, on the one hand, that regard should have been had to his subject access request (“SAR”) in limiting the scope of his FOIA Request. On the other hand, he maintains that his SAR was a “quite separate and completely different request… for records in a specific case” and it should not have been taken into account in interpreting the first half of the Request letter (see Appellant’s Reply, paras.5-6 [44]). The Appellant cannot have it both ways: he cannot require the FOIA Request to be treated as entirely separate from the SAR, but insist that the SAR should have been taken into account when assessing the scope of the FOIA Request.”

The internal review was carried out by a member of the Civil and Family team who had not been involved or engaged in responding to the initial Request. Their role is to review the FOIA request and decision again.

In line with department practice, the reviewer consulted with the author of the original response to discuss how the initial decision was reached. Following this the reviewer considered the question of whether the initial interpretation and response to the Request, given the wording of the Request itself, had been reasonable. Upon completion of the internal review, the reviewer decided that the application of the exemptions in s 32(3) and 40(5) FOIA for court records and personal data had been reasonable.

The Second Respondent reconsidered the Request and its response upon receiving the ICO’s letter of investigation. This request was handled by a different member of the Civil and Family Service team to review the first two parts of Mr Moss request.

It was only at this stage that the Second Respondent fully appreciated the exact nature of the parts of the Request relating to general policy documents, which had previously been construed as being interlinked with the specific cases referred to in the Request, as set out above.

47…These included:

1) A search of the MOJ/HMCTS Intranet using the following search terms ‘Human Rights Act’, ‘HRA’ and ‘referring claims to judges under HRA’. These did not provide any other further information. Any policies, or procedures, in relation to the original request, if available, would be within the HMCTS and/or MOJ intranets, which is accessible by all MOJ/HMCTS staff.

2) Another search of the civil procedure rules terms ‘CPR 3.2’, ‘CPR 10.2’ and ‘CPR 12.3’ was also undertaken and did not provide any further information, other than that previously given around section 3.2.

3) A search of the HMCTS Civil Knowledge Bank which contains guidance for Courts and Tribunals Support Centres (CTSC) was conducted using the terms ‘Human Rights Act’ and ‘HRA’ and did not provide any further information.

4) Enquiries were made with the London Knowledge and Information Liaison Officer team, County Court Money Claims Centre, County Court Business Centre and Online Civil Money Claims service for details of any guidance or policies in relation to Mr Moss’s request. The keywords used included, ‘national guidance, ‘local practice’, ‘agreed protocol’ ‘N1 Part 7 Claim Form’, ‘HRA box’, ‘HRA field’, ‘validation’, ‘case management powers’, ‘eligibility questions’ and ‘Human Rights Act’.”

The Second Respondent also clarified in this letter that, although no further general information was held centrally or in a readily accessible format, some Courts might hold local policies explaining how the general overarching processes are specifically interpreted in each individual Court.

Final Submissions

A request for environmental information only should be dealt with under the Environmental Information Regulations 2004 , and a request for a person’s own personal data should be dealt with under the subject access provisions of the Data Protection Act 2018. Sometimes it may be necessary to consider a request under more than one access regime.”

Public authorities must interpret information requests objectively. They must avoid reading into the request any meanings that are not clear from the wording.

….

When an authority receives an unclear or ambiguous FOI request, its Section 16 duty to provide advice and assistance will be triggered and it must offer the requester help to clarify the request.

Where a request is refused under section 12, public authorities should consider what advice and assistance can be provided to help the applicant reframe or refocus their request with a view to bringing it within the cost limit. This may include suggesting that the subject or timespan of the request is narrowed. Any refined request should be treated as a new request for the purposes of the Act.”

Consideration

1.— General right of access to information held by public authorities.

Any person making a request for information to a public authority is entitled—

to be informed in writing by the public authority whether it holds information of the description specified in the request,

and

if that is the case, to have that information communicated to him.

Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14.

Where a public authority—

reasonably requires further information in order to identify and locate the information requested, and

has informed the applicant of that requirement,

the authority is not obliged to comply with subsection (1) unless it is supplied with that further information.

The information—

in respect of which the applicant is to be informed under subsection (1)(a), or

which is to be communicated under subsection (1)(b),

is the information in question held at the time when the request is received, except that account may be taken of any amendment or deletion made between that time and the time when the information is to be communicated under subsection (1)(b), being an amendment or deletion that would have been made regardless of the receipt of the request.

A public authority is to be taken to have complied with subsection (1)(a) in relation to any information if it has communicated the information to the applicant in accordance with subsection (1)(b).

In this Act, the duty of a public authority to comply with subsection (1)(a) is referred to as “the duty to confirm or deny”

2.— Effect of the exemptions in Part II.

Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the

effect of the provision is that where either—

the provision confers absolute exemption, or

in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information, section 1(1)(a) does not apply.

….

For the purposes of this section, the following provisions of Part II (and no others) are to be regarded as conferring absolute exemption—

…

section 32,

…

¬-Request for information

8(1) In this Act any request for information is a reference to such a request which-

…

describes the information requested

12.— Exemption where cost of compliance exceeds appropriate limit.

Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit.

Subsection (1) does not exempt the public authority from its obligation to comply with paragraph (a) of section 1(1) unless the estimated cost of complying with that paragraph alone would exceed the appropriate limit.

16.— Duty to provide advice and assistance.

It shall be the duty of a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it.

Any public authority which, in relation to the provision of advice or assistance in any case, conforms with the code of practice under section 45 is to be taken to comply with the duty imposed by subsection (1) in relation to that case.

58 Determination of appeals

58(1) If on an appeal under section 57 the Tribunal considers—

that the notice against which the appeal is brought is not in accordance with the law, or

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

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.

On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

Section 8(1)(c) requires that a request for information must also adequately describe the information sought.

…

Clarifying the request

There may also be occasions when a request is not clear enough to adequately describe the information sought by the applicant in such a way that the public authority can conduct a search for it. In these cases, public authorities may ask for more detail to enable them to identify the information sought. “

“Public authorities must interpret information requests objectively. They must avoid reading into the request any meanings that are not clear from the wording.

The authority must answer a request based on what the requester has actually asked for, and not on what it thinks they would like, should have asked for or would be of most use to them”

It is best practice for each public authority to have a procedure in place for dealing with disputes about its handling of requests for information. These disputes will usually be dealt with as a request for an “internal review” of the original decision….

The internal review procedure should provide a fair and thorough review of procedures and decisions taken in relation to the Act. This includes decisions taken about where the public interest lies if a qualified exemption has been used. It might also include applying a different or additional exemption(s).

MoJ can advise that the authority to diverge from any administrative process, and involve a judge, is held within the Civil Procedure Rules (CPR 3.2). MoJ has to advise that the we do not hold anything that specifies what those situations might be, just that it is within the general Case Management powers for a court officer to refer.

No further information is held that can be disclosed to you. The searches that were previously undertaken by the original FOIA response to check this still stand. There may be some court level processes only, held by each individual court, but searches for that information instead, would fall under Section 12(1) (costs) exemption of the FOIA.