Derek Moss v Information Commissioner & Anor

On 11 August 2020 the Appellant wrote to the Second Respondent (MoJ) in the following terms:-

“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]

On 1 September 2020 the MoJ replied refusing the request:

“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.”

On 3 September 2020 Mr Moss wrote asking for an internal review. He stated that

“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”

The MoJ replied on 1 October 2020 asserting that the original decision was correct. It set out the MoJ’s duty to protect personal information, and the protection s32 FOIA provided for court records. With respect to the third part of the request it stated: In relation to the last part of your FOI request. It was not clear who was the claimant in the proceedings, therefore the response you received was correct. The response went on to seek confirmation of identity so that the subject access request could be carried forward.

Mr Moss complained to the ICO:-

The ICO acknowledged receipt of the complaint and indicated an intention to proceed with it but warning of delay on 20 October 2020. The investigation started on 31 March 2021 with an officer of the ICO writing to Mr Moss and the MoJ explaining:

On 30 April 2021 MoJ set out its new understanding of the position:

The MoJ in its letter set out how claims may be commenced in the civil courts.

On 17 May 2021 Mr Moss expressed his dissatisfaction to the ICO:

In response to this concern the MoJ wrote to Mr Moss on 25 August 2021

On 12 September 2021 Mr Moss wrote to the ICO asking for a formal decision. In that communication he provided details of a service complaint he had made about his litigation on 7 May 2020, pursued to higher levels in CCCMCC on 10 June and 29 June and in August to the Head of Customer Investigations at HMCTS. He summarised his interpretation of what he had been told and argued that,

On 17 November 2021 the MoJ replied to the ICO setting out its position, confirming the general position as set out in the Civil Procedure Rules and that to find whether there were any local procedures would require a search at each of 95 courts. It confirmed its reliance on the provisions of s12– the cost of compliance with an information request. On 18 November the MoJ wrote to Mr Moss:-

In the decision notice of 9 December 2021 the ICO accepted that the MoJ was entitled to rely on s12(2) (cost of compliance), had complied with its duties on s1(1) (general right of access to information) and s16 – (advice and assistance) and found a procedural breach of s17(5) the refusal notice. The ICO was satisfied that the wording of the request, “the courts” meant that it was generic and did not refer to specific courts and therefore that to obtain the information it would be necessary to contact all the county courts to discover what local policies each might hold relevant to the request. The ICO was satisfied that having established that interpretation the advice provided was appropriate. However since a refusal notice relying on s12(2) was not provided within 20 days of the request there was a breach of s17(5). The ICO also considered that the MoJ response to the internal review did not comply with the Code in that it did not address the specific concerns Mr Moss had raised.

In his notice of appeal dated 6 January 2022 Mr Moss asked-

“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.”

He submitted that in failing to identify an applicable exemption (s17) in the initial reply

“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.”

With respect to the provision of assistance he argued (relying on the ICO’s published guidance:-

“…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.

30.

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.

31.

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.”

In resisting the appeal both the ICO and MoJ relied on the findings of the Decision Notice. Before dealing with the substantive arguments raised by Mr Moss the MoJ noted:

“27.

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.”

In the light of this, with respect to the first ground of appeal the MoJ relied on the statutory wording (bundle pages 46/7 para 30)

“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.”

The MoJ resisted the claim that the original request had more than one meaning and accordingly it should have sought clarification (47, para 35):

The MoJ maintained that it had given advice appropriately and accordingly by reason of s16(2) had complied with its obligations.

In his final written submissions (8 March 2023) Mr Moss argued:

If, after taking the background and context into account, the MoJ was still unclear about what the Appellant was seeking, it was required by s16 to contact him to seek clarification. If it had told him in 2020 that there are no national policies and each court follows its own policies or practices, he would have confirmed that he was only interested in the policies or practices followed by the two courts he’d had dealings with, which could have been provided within the s12 limit, and that should have been done in 2020.

The ICO (16 March 2023) maintained the position that the late reliance on a different statutory provision (in this case s12) was allowed by the decision in McInerney and the MoJ, by suggesting a new FOIA request, had discharged the s16 duty.

The MoJ (20 March 2023) in rebutting the new argument of Mr Moss “that the “only reasonable interpretation” of the Request was that it was for national policies or, if those didn’t exist, then for the policies of the courts with which the Appellant had dealings” submitted:-

“7.

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.”

Faye Wates, a Senior Service Manager in the Civil Team within the Development Directorate of HM Courts and Tribunals Service (“HMCTS”) provided a witness statement in behalf of the Second Respondent confirmed by a statement of truth (bundle pages 223- 250) She explained how the request had been handled and reviewed:-

After the ICO’s intervention:

The MoJ further explained to the ICO further searches it had taken in response to additional inquiries from the ICO:-

While in oral submissions Mr Moss noted that the witness had stated that there was a different person conducting the internal review from the person who handled the initial request; he argued “we don’t know that.” However he declined to question or challenge the witness in any way although prompted to do so by the tribunal.

On examination by the tribunal Ms Wates confirmed the training the staff had received and that all parts of the request had continued to be linked together at the internal review stage. She explained that specific investigations had been carried out with County Court Money Claims Centre, County Court Business Centre as these are the two business centres where the MoJ centralises its paper processes for issuing claim forms. She explained that it had not been felt necessary to seek clarification from Mr Moss about the request for information because “people felt that it was linked to a specific case and didn’t need clarification”.

In his oral submissions Mr Moss emphasised the first two parts of the request didn’t refer to any personal data and public authorities had a duty to identify a subject access request. He relied on the Cabinet Office guidance on FOIA (2018) (bundle pages 367 et seq)

“1.5

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.”

He also relied on the ICO guidance on “Interpreting and clarifying requests” (bundle page 430-431):

He argued that the refusal and the internal review were on the basis of inapplicable exemptions and therefore the tribunal should uphold his case. He produced a number of authorities in support of the proposition that the MoJ was not entitled to rely on s12 at the time that it did.

In resisting the appeal Ms Parekh noted that as originally formulated the appeal on the basis of breach of s1 had not mentioned the provisions of s12. However Mr Moss had relied on authorities which were no longer good law in the light of the Court of Appeal decision in Birkett that public authorities could rely on exemptions first claimed during proceedings and the Upper Tribunal decision in McInnerney which expressly applied this principle to s12. In addressing the question of advice and assistance she drew attention to the Code of Conduct:-

“6.9

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

It is important to emphasise the statutory basis of this case and the powers of the tribunal within the context of FOIA:-

The role of the tribunal. is to consider appeals under s58 FOIA:

The starting point is a consideration of the request lodged on 11 August 2020 and the words used to describe the information requested. The Freedom of Information Code of Practice (first issued in 2004 and a revised version by the Cabinet Office in 2018) under s45(5) and provides:

“1.14

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

…

Clarifying the request

2.8

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. “

In similar terms the ICO’s guidance on interpreting and clarifying requests:-

“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”

Although the request was subsequently (once it was revealed as in part a subject access request) severed into two parts; as made it was described by Mr Moss as “a FOIA request” and dealt with by MoJ as such. It begins with two extended paragraphs seeking information of court policies and procedures in connection with cases related to the Human Rights Act including issues of transfer of cases and default judgements. It then moves on “Please also provide the following” seeking information about decision making in one case involving transfer between courts and questions of service of proceedings and default judgement – issues raised by the two preceding paragraphs. It was clearly, in Mr Moss’s own terms, a single request. The three concluding paragraphs clearly indicate what information is sought on a specific case.

The tribunal is satisfied that, given that it is a single request which seeks the detail of an individual case before the courts the MoJ properly applied s32(3) and s40(5) to the request and made a refusal on that basis, in accordance with s2.

The Ministerial guidance states, with respect to Internal Reviews:

The obligation on MoJ upon receiving the request for internal review was to “provide a fair and thorough review of procedures and decisions taken in relation to the Act”. The key decision it took on receiving the request was to interpret it as a single request. From a consideration of the text that was correct. On reviewing the request it looked at the decision it had taken and (correctly) concluded that it was a single request for information arising from a specific court case. Pragmatically it started to investigate whether the claimed SAR was an SAR in the light of the information Mr Moss had now provided. A further pragmatic response would have been to look at the remainder of the information request again, separately; however that was not, from aa strict interpretation of the statutory guidance, what it was required to do.

On 30 April 2021 the MoJ, following the ICO’s intervention, looked at the first two parts afresh and provided the information that it held from searches of its central systems. Following Mr Moss’s statement in his letter of 17 May 2021 that the MoJ had not provided any of the documents he had requested, the MoJ confirmed on 25 August that :-

It should be noted that the request identifies the information sought by the words “the courts have a policy or practice”. The clear implication of that is that there exists something of general application to all the courts. This is confirmed by Mr Moss’s challenge to the internal review finding (paragraph 5 above) that the MoJ had refused “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.”

The MoJ complied with its duty to provide the information requested as interpreted by Mr Moss in its letter of 30 April 2021 (paragraph 7). In order to assist Mr Moss it acknowledged that there might exist local procedures in individual courts, these points were re-iterated in the MoJ’s letter of 25 August 2021 to Mr Moss and again in its letter to ICO on 17 November 2021.

Mr Moss remained dissatisfied and insisted on the ICO issuing a decision notice. This recorded the steps taken to clarify the issues and was issued on 9 December 2021. This found a breach of s17(5) by MoJ for failing to provide a notice relying on s12 within 20 days of the request. This finding is problematic since a refusal based on s30 was properly served within time; a refusal correctly based on the proper interpretation of the request. However since the MoJ has not appealed on this issue the tribunal makes no further comment. Mr Moss has raised a number of issues relating to ECHR, it seems to the tribunal that those issues were extensively canvassed in his previous appeal to the Upper Tribunal Moss v IC and Cabinet Office which is binding on this tribunal. His arguments do not assist his case.

Mr Moss’s appeal against the ICO’s Decision Notice is without merit and is dismissed.

The request was made on 11 August 2020. The Decision Notice is dated 9 December 2021. The hearing was 27 July 2023 and this decision is dated August 2023. Although some delay in the resolution of this request may have been occasioned by delays and staff shortages/resources constraints within the ICO and MoJ or the lack of availability of a tribunal; the simple issue has been complicated by way the request was formulated by Mr Moss, the way he has re-interpreted the request and his approach to the conduct of the appeal. He has refused proper offers of assistance from the MoJ and made repeated and unnecessary applications and challenges in the appeal.

Rule 10(1)(b) of the tribunal’s rules provides that the tribunal may make an order in respect of costs if the Tribunal considers that a party has acted unreasonably in bringing, defending or conducting the proceedings. If any party wishes to make an application in respect of costs it should do so within 14 days.