Chris Spiropolous v Information Commissioner

This appeal is brought under section 57 of the Freedom of Information Act 2000 (“FOIA”). The appeal is against the decision of the Information Commissioner (“the Commissioner”) contained in a Decision Notice dated 3^rd November 2021 (reference IC- 78206-R2B9).

On 14^th October 2020, the Appellant made a request for information from the Central London County Court in the following terms:

On 16^th December 2020, the Appellant complained to the Commissioner that his request had been ignored. At that time, there had been no reply to his request.

After a substantial delay, on 17^th February 2021, the Ministry of Justice (MOJ) responded that it did not hold the requested information. An internal review on 19^th March 2021 confirmed that decision. The reason for the delay in the MOJ response was that the request for information had been made directly to the County Court and not to the MOJ FOIA unit, who had not become aware of the request for information until 25^th January 2021 when contacted directly by the Commissioner as a result of the Appellant’s complaint. The MOJ apologised for the delay.

The Commissioner remarked that even though the data about fax transmissions may be due to be deletion after thirty days, MOJ should, as a matter of good practice, suspend any planned destruction to comply with requests. The reply from MOJ was both outside the timescales for compliance and way beyond any planned destruction timescales. At the time of MOJ’s response on 16^th February 2021, the data would have been destroyed.

The Commissioner’s decision was that, on the balance of probabilities, the Ministry of Justicedid not hold the requested information as at the time of their response. Searches had been made but no information had been found. The Commissioner noted that the Ministry of Justice had not communicated within the statutory timescales. The Commissioner did not require the MOJ to take any steps as a result of their decision.

The Commissioner’s decision notice referred to MOJ’s response regarding the retention of faxes; electronic data for faxes sent and received was deleted after thirty days. Goldfax was decommissioned in early 2019. MOJ had confirmed that a search of the email boxes had been undertaken (albeit no confirmation of when the search was conducted) and the conclusion was that no information was held.

The Appellant appealed on 29^th November 2021 against the Commissioner’s decision on the basis that the Commissioner had not properly investigated his request and that the MOJ had deleted or allowed the deletion of the information whilst his request was still pending. He said that whether the fax logs existed or not, the information existed within the email system, Caseman or the case file. He said he was not actually seeking the logs. A copy of the documents transmitted would be acceptable. He submitted that MOJ had not searched for the information requested. The request for information was made on 14^th October 2020. At that time, the data from transmissions between 23^rd September and 25^th September would not have been deleted.

The Commissioner opposed the appeal. The Commissioner confirmed that the Appellant had previously written to the MOJ regarding Goldfax logs which had triggered previous appeals to the First-Tier Tribunal.

The Commissioner acknowledged the delay in the MOJ response and that the MOJ did not confirm that Goldfax had been decommissioned in its earliest response to the Appellant. The Commissioner included their correspondence with the MOJ dated 18^th and 22^nd January 2022 (at page 40 of the bundle) where they confirm that the case file involving the Appellant had been checked but nothing within the date range as set out in the Appellants request could be found on the file. It was also confirmed that the information would not be stored anywhere else.

The Commissioner relied on his decision notice and the findings of the Tribunal in appeal number EA/2019/0102. The Commissioner refuted the allegation that he did not investigate the complaint. There was nothing to suggest that the information existed at the time of the MOJ response and MOJ would not have been required to retain that information at the time of the request. MOJ confirmed that they had undertaken searches and no information within scope was located. Even if the Tribunal found that information existed, it may be exempt from disclosure under section 32 (court records) or section 40 (personal information).

The request for information that is the subject of this appeal was made on 14^th October 2020. On 16^th December 2020, the Appellant complained to the Commissioner. The MOJ responded to the request on 17^th February 2021 and the Commissioner issued their decision on 3^rd November 2021. The Appellant appealed against the Commissioner’s decision on 29^th November 2021.

It is noted that a decision was made on 17^th March 2022 to strike out the Appellant’s appeal on the basis that it would have no reasonable prospect of success. The strike out decision was reviewed and rescinded in December 2023.

The Appellant had responded on 17^th April 2023 stating that the information could easily be found in the fax logs and that the same information could be located on the case file. He said that MOJ had searched the case file and found only one document faxed on one of the specified dates, they had refused to provide that document. (This appeared to the Tribunal to refer to an earlier appeal (0102) regarding information sent between different dates; there appears to be no indication that any document was found within the date ranges of this appeal on the court file or elsewhere).

There is reference in the papers to two previous appeals. On23^rd August 2018, the Appellant asked for Goldfax logs between dates in July 2016 and October 2016. The Commissioner issued a decision notice dated 14^th March 2019 following a complaint from the Appellant. The appeal to the Tribunal in that case EA/2019/0102 was heard in August and November 2019 with the judgment being promulgated on 25^th November 2019.

It was noteworthy that in this request, the request was for logs of Goldfax transmissions on the dates specified. It became apparent within his notice of appeal that he was looking for fax transmission tickets showing faxes being sent to the court between those dates. The Tribunal adjourned the appeal to gather further evidence from MOJ about the Goldfax system and electronic data. At the resumption of the appeal, the Tribunal had an additional witness statement which confirmed that Goldfax faxes were retained for a period of thirty days and then removed. The witness statement from Mr Cranwell at HMCTS confirmed that Goldfax ceased to be used in early 2019 and that Goldfax had been configured only to retain data for thirty days. The Appellant had provided the case file number during the proceedings and the case file had been checked and there no additional receipts (other than an application dated 30^th October 2016) between the relevant dates. This additional evidence was not accepted by the Appellant but was accepted by the Tribunal.

There was a discussion in that judgment about what information the Appellant was seeking, namely the logs for the periods stated in his request. At para 28 of that decision the Tribunal said - “There was nothing in the request that pointed MOJ to a specific case file where a record of a fax transmission might be found and the MOJ and the commissioner were right not to assume that the Appellant wanted records relating to a particular case”. As it was, the file was checked once the case file number was identified and HMCTS were able to confirm receipt of a fax on 30^th October 2016 but no receipt of anything else on the two other dates in July 2016 as per the request. The Tribunal remarked that there was nothing to stop the Appellant from accessing his own court case file. The Tribunal were not satisfied that the MOJ held information sought within the scope of the request.

The Appellant made an application for permission to appeal against that decision. This was refused in the first instance by the presiding First-Tier Tribunal Judge but was renewed at an oral hearing before Upper Tribunal Judge Jacobs. Judge Jacobs highlighted that the Appellant did not trust the information given to him by MOJ but Judge Jacobs was satisfied that the Tribunal was entitled to reach the conclusions that it did. Judge Jacobs highlighted that the request was for the logs and not the case file, and that the Appellant had the ability to obtain a copy of his court file or make a subject access request under the Data Protection Act 2018. Judge Jacobs rejected the Appellant’s argument as to bias reminding the Appellant that the judiciary are independent from the Ministry of Justice. Permission to appeal was refused.

On 17^th March 2019 (three days after the Commissioner’s decision upon his complaint regarding the first request for information) the Appellant made a further request to the MOJ for Goldfax logs between (eight) dates in 2016 and 2018. Three of those dates replicated the request made on 23^rd August 2018. On 4^th May 2019, the MOJ responded to confirm that they did not have that information. A complaint was made to the Commissioner who issued a decision notice dated 2^nd November 2020 which concluded that MOJ did not hold the information on the balance of probabilities. The Appellant appealed to the Tribunal. That appeal EA/2020/0347 was dismissed on 27^th March 2023.

In EA/2020/0347 the Appellant had referenced the Goldfax logs that related to a civil claim citing the civil case number. The MOJ had again indicated that they did not hold the information. MOJ said that Goldfax could not store sent/received faxes and was unable to restore deleted faxes. The Appellant’s position was that Goldfax kept a track of all activity by default. He believed that the data was stored in several other places such as Caseman and the case file. The Appellant said that the case file might be one place where the information is found. The Information Commissioner had invited the Appellant to make a subject access request regarding information on the court file.

The Tribunal hearing this appeal had the benefit of witness statements and oral evidence from two witnesses from the Ministry of Justice, in addition to hearing submissions from a representative on MOJ’s behalf. The Tribunal agreed that the Goldfax system did not keep data after thirty days and that case-related documents were printed and matched with the relevant court file. The court file as then stored in accordance with retention policies.

During that appeal there was discussion about what information the Appellant had asked for. Both the MOJ and the Information Commissioner were clear that the Appellant had asked for the Goldfax logs. There was no reference to the content of the court files and in any event, access would have been refused under FOIA albeit available to the Appellant by other means. The file had not been re-examined as the request did not say that he wanted a copy of documents. The MOJ submitted that the request was essentially the same as in the previous appeal EA/2019/0102. The Appellant had said he was not interested in the document itself but the information that would tell him when the document arrived, the number of pages and if they arrived correctly. If the file did not have that information, MOJ should have looked somewhere else for it.

That Tribunal found as a fact that Goldfax had no general capability to store sent or received faxes. Goldfax was configured by MOJ to retain electronic data for thirty days. There was no database where the contents of faxes was stored. Goldfax documents were printed, and the contents were placed on the relevant court file.

The Tribunal found that the scope for the request was clear and was limited to Goldfax logs. He was interested in the time of transmission and not the documents. The Tribunal were satisfied that MOJ did not hold that data.

The Appellant sought to appeal that decision to the Upper Tribunal. Judge West exhaustively dealt with the Appellant’s concern about bias explaining that the judiciary and the executive were independent and that he was “satisfied that a reasonable, objective and informed person would not on the correct facts reasonably apprehend that the Tribunal had not or would not bring an impartial mind to bear on the adjudication of the case. There is no substance in the Appellant’s argument…” The Upper Tribunal reinforced the different regimes that operate under data protection, FOIA and the Civil Procedure Rules and confirmed that the Civil Procedure Rules that do allow a person to inspect a court file do not apply to the Tribunal. The application for permission to appeal was deemed to be totally without merit.

At the time that this request had been made the Appellant had received the judgment for the appeal EA/2019/0102 and he had received a further refusal notice from the MOJ with that refusal being considered by the Information Commissioner. By the time he complained to the Commissioner, the Commissioner had already issued his decision notice on EA/2020/0347.

The Tribunal considered the bundle (107 pages) and the judgments from the previous appeals.

The hearing was attended by the Appellant. The Respondent did not attend. The MOJ had not asked to become a party and were not made a party to the appeal.

The hearing took place at Field House in London.

We heard evidence and submissions from the Appellant.

The Freedom of Information Act 2000 allows any person to make requests of public authorities for information. The right is contained in section 1(1) as follows:

Subject to the authority requesting further information from an applicant to identify and locate the information, the Act provides for disclosure of the information (not documents) unless one or more exemptions in the Act apply.

An authority may rely on an exemption under Part II of the Act before the Tribunal that had not been relied upon previously, subject to the court’s case management powers.

There was a factual dispute as to whether the information was held or not and that issue would be decided on the evidence before the Tribunal on the balance of probabilities.

The FOIA regime cannot be used to obtain documents from a court file. There is an absolute exemption under section 32 of the Act that relates to court documents. The request for information is precisely that, a request for information, and not for documents. There is a separate regime under the Civil Procedure Rules that governs access to a court file.

Para 5.4B of Rule 5 to the Civil Procedure Rules provides–

And Para 4.2A of Practice Direction 5A of the Civil Procedure Rules lists the documents that can be supplied some of which are replicated below–

an application notice, other than in relation to –

Any other documents can be provided with the permission of the court. Rule 5.4D(1) provides that a person seeking copy documents from the court must pay the prescribed fee. The prescribed fee is set out in a statutory instrument issued regularly, the current version implemented fees payable from May 2024. Those in receipt of certain means-tested benefits may apply for fee remission. The requirement to pay a fee and the fee amount are rules imposed by Parliament and not the MOJ, HMCTS or London County Court.

This Tribunal has no power to order documents from the court file or any other document be disclosed. The Tribunal is concerned with information. The Tribunal cannot direct the County Court to provide the Appellant with document from his court file, whether upon payment of a fee or not.

The Powers of the Tribunal are provided by section 58(1) of the 2000 Act:

There is no power to award summary judgment as requested by the Appellant. The Tribunal has case management powers in Rule 8 of its own Rules which may include ending an appeal by striking it out or barring a Respondent from participating; the latter does not equate to summary judgment as a decision on the merits will still be made including whether exemptions apply The Tribunal can either dismiss the appeal or makes a fresh (substitute) decision regarding the information sought.

The powers of the Tribunal were considered by the Upper Tribunal in Information Commissioner v Malnick and the Advisory Committee on Business Appointments [2018] UKUT 72 (AAC) who confirmed that the Tribunal conducts a “full merits” review of the Commissioner’s decision albeit the starting point was the Commissioner’s decision. The Tribunal will give such weight as it considers fit to the Commissioner’s views and findings; and will determine whether the Commissioner’s decision was in accordance with the law. The appeal process is not adversarial, it is inquisitorial by nature.

The Appellant had refined his request for information between the first and second appeals and then again for this (third) appeal. The first appeal was a wide-ranging request for Goldfax logs. No logs were kept, Goldfax was in use at the time and there was no information available that narrowed down the parameters of the information sought by the Appellant.

In the second appeal, the Appellant had made requests for more information but had limited that request to Goldfax transmissions relating to his case. There were no Goldfax logs kept, Goldfax was in use at that time and the Tribunal were satisfied that there was clarity in his request. He had asked for a specific document, the Goldfax log, and it did not exist. The file had been examined and he was advised about the only communication that was within the date ranges he specified.

The Appellant had rephrased his request for information in the request that is the subject of his appeal. Whilst he referred to Goldfax logs showing transmission between specific dates regarding his case, he requested – “any other document providing the same information as the logs. This is a request for the information on the logs rather than the logs themselves.” He had not confined himself to the non-existent Goldfax logs but had asked for the information about transmissions, wherever that would be found.

There was unnecessary confusion about the information that was being requested. The original request sought logs showing Goldfax transmissions received between 23^rd September 2020 and 25^th September 2020 relating to a specific claim. Goldfax had been decommissioned in 2019 and as the Appellant said to the Commissioner, it was the meta data of the fax software (whatever called) that was requested. Data from faxes was sent and received was retained for thirty days; there was no back-up system. The Commissioner agreed that in the light of the correspondence from the Appellant a wider view of the request could and should have been taken. The Commissioner observed that the uncertainty about the Appellant’s request could have been resolved by the Ministry of Justice offering advice and assistance.

The Appellant had not assisted regarding clarity. His request for information referred to Goldfax even though it was clear from the hearing in EA/2020/0347 that took place in October 2021 that Goldfax had been decommissioned in 2019. In his grounds of appeal, he said at para 8 “..whether the fax logs exist or not … the information requested still exists in the email system, in Caseman and in the relevant case file.” This is the first time he referred to information from the case file. At times in his grounds of appeal, he refers to the information being sought but that the specific documents transmitted would be fine.

The Appellant made a witness statement dated 4^th December 2023. He said that he went to Central London County Court on 27^th September 2023 to inspect the relevant court file. He said that he had made a further request for information on 23^rd May 2023 and had identified at least 10 documents containing information within the scope of that request, as well as the request that was the subject of this appeal. He said that court staff refused to provide him with copies of the information. He said the relevant documents containing the information were on the court file albeit he did not identify what the documents were.

The Appellant said that he was disappointed that neither the Commissioner nor the Ministry of Justice attended the appeal hearing. He wanted to ask them questions. He perceived their lack of attendance as avoiding embarrassing questions. The reality is that a representative for the Commissioner is not able to attend all hearings and so will choose which hearings to attend. In any event, the Commissioner or case workers did not attend hearings themselves, but a representative on their behalf. Those representing the Commissioner would be unlikely to be able to assist with giving evidence as they had no direct dealings with the complaint.

The Ministry of Justice had not asked to join the appeal as a party. From their perspective, the issues in this appeal had already been ventilated twice before and they had produced witness statements and oral witness evidence to assist the Tribunal. Noting the issues that had been ventilated in the previous appeals, the Tribunal were not satisfied that MOJ’s attendance at this appeal would have assisted.

The Appellant was asked directly what information he was looking for. He was reluctant initially to answer that question directly and relied on generic and vague answers. When asked again by a Tribunal member, the Appellant was more specific stating he wanted confirmation of receipt of documents that he had sent in by fax between the relevant dates.

The Appellant said that he wanted the logs from whatever fax management system was in place when he sent faxes to the court. He did not believe that there was a thirty-day retention policy even though the Tribunal had previously found as a fact that this was the case. He referred to a document on the retention of documents in the County Court (County Court, Family Court, Court of Protection and the District Registries of the High Court (HM Courts and Tribunals Service) Records Retention and Disposition Schedule) dated 14^th March 2022 which did not specify faxes but referred to other types of records being kept for three years and no destruction of any document for one year. He believed the emails/faxes should have been kept in accordance with this Policy.

The Appellant was asked about his visit to the County Court to inspect the file. He said the information that he wanted was on the file but that the court refused to give it to him. Later he qualified that answer, when I reminded him that he was entitled to that information but may have to pay a photocopying fee; he then said that he could have obtained the information from the court file but did not want to pay the photocopying charge. He said he wanted the information for free. The Appellant was advised that this Tribunal could not order the County Court to provide him with documents or to provide him with documents for free. Those issues were prescribed by the Civil Procedure Rules and not FOIA. He was disgruntled that he had submitted a bundle to the County Court for his claim and that the bundle had not been returned to him.

His submissions then continued with repeated reference to the Tribunal being part of MOJ and his distrust of the MOJ as he thought information was being covered up. He disputed that the Commissioner had offered him an informal resolution.

When asked directly what information was on the court file that would assist him, the Appellant initially launched into a narrative rather than answer the question. This was a feature of how he presented at the hearing. He was evasive in answering direct questions. He said he wanted the meta data but later, he wanted the Court bundle. The fact that he had seen documents on his court file that fulfilled his information request was not consistent with his submission that MOJ were covering up.

He disputed that the Tribunal should find facts on the balance of probabilities but gave no reason why or any alternate standard against which to measure the evidence.

The Tribunal considered that the Appellant’s approach had not assisted the Tribunal or the MOJ and Commissioner to identify what information he requested. Many of the issues raised had been comprehensively considered at other appeals or were issues between him and the County Court regarding access.

The Tribunal members are not part of the Ministry of Justice. Whilst it is recognised that the court estate and its staff are managed by Ministry of Justice through HMCTS, the Tribunal members and the Judge were independent; and were both willing and able to allow the appeal against the Ministry of Justice and Commissioner’s decisions if the circumstances required them to do so. This argument was certified as totally without merit before UT Judge West.

When there is a dispute as to whether information is held, the Tribunal has to decide on the balance of probabilities whether the information is held. The authorities for this proposition were set out in the Commissioner’s response and it is noted that these proceedings are akin to civil proceedings and so the civil standard of proof would naturally apply. The Appellant’s submissions on this issue, albeit confused and without legal foundation, do not alter this well-established proposition.

There are no Goldfax logs for the period in his request. Goldfax had been decommissioned in 2019. The successor to Goldfax allowed for faxes and emails to be sent to the court’s email box. It was clear from the previous appeals that Goldfax was no longer in use as at the date of this request. It is regrettable that this was not highlighted in the initial response of MOJ in February 2021. The Appellant appeared to recognise this when he referred to information from Silverfax or pinkfax or whatever the system was called. The request was not about Goldfax, it was about whatever system was used to transmit faxes and emails to the court. The Commissioner recognised this by asking MOJ about searches in other places including the court file.

We were satisfied on the balance of probabilities that there were no logs of fax transmissions or retained emails between the requested dates on 16 February 2021. There was no requirement for the Court to keep a log of transmissions in a separate place and the consistent evidence of the MOJ was that the email data was cleansed regularly; the data from September 2020 would not have been held in February 2021. It is unfortunate that a search of the email box was not undertaken in October 2020 when the request was received when any data may have still been present in the email box. It is noted that the request was not sent to the correct team to action. A subsequent search of email boxes had been conducted and the information was not found. Noting the date of the search and the (informal) retention policy around emails, consideration needed to be given as to whether the information would be stored elsewhere.

This issue was in the mind of the Commissioner as he corresponded with the MOJ in January 2022 and asked whether the court file had been inspected. It was confirmed that it had, and the information requested was not on the court file. The practice of the court was to print out communications which may include details of the transmission information (for example, the header of an email) and place that document on the relevant court file. By printing out the emails or faxes received by email, there was no additional need to retain the email as the paper record was stored on the case file and retention of documents on the case file would be as per the retention schedule for court files. That is where the Retention Policy document is relevant.

As a District Judge of six years, I can confirm that my experience accords with the practice outlined in both appeals, namely, that faxes and emails are printed and kept on the paper court file. As the reform project bites, some newly created case files are now digitised but that was not applicable in the Appellant’s court case.

The relevant case file was examined for the information. Mail printed off may be expected to have the metadata as to when it was sent, from whom, recipients and the contents. Whilst the contents of mail and faxes are not part of this appeal and would be excluded under section 32 of the Freedom of Information Act, the meta data was more likely than not be on the court file as part of the documents and could, if present, be extracted and provided to the Appellant. The MOJ confirmed there was no such information on the court file.

The Appellant also refers to Caseman. Caseman is the court’s computerised case management system for civil cases which includes a timeline of events in the case. The court would expect to see the dates of the claim, statements of case, applications and orders to be recorded in the timeline as events. The timeline of Caseman is based on the date that the record is updated and not the date or time of receipt, which may be different. These entries are manually recorded by staff as the events occur and so the accuracy of Caseman events is not guaranteed. Indeed, many routine pieces of correspondence are not regularly recorded on Caseman; it is not as reliable as interrogation of the court file itself. The lack of record on Caseman is not a reliable indicator that nothing has been received. The record on Caseman should be made just before the document is added to the court file. It is unclear what documents the Appellant says that he has filed with the court and so it is impossible to indicate whether they would be recorded on Caseman, as well as the court file or the accuracy of the timeline on Caseman. In any event, Caseman printouts are a record created by court staff for the purposes of case management so would be exempt from disclosure under section 31(1)(c) of the 2000 Act.

It is the view of the Tribunal that the Ministry of Justice did not hold the information sought by the Appellant and therefore the Commissioner’s decision was correct. MOJ had looked beyond the narrow terms of the request into the court file, where the information may have been held and it was not held. There is very little to suggest that the information may be on Caseman. Quite apart from the lack of information from the Appellant about the documents he submitted at the requisite time to assist with the search, the process of the Court would be to enter a description of the document onto Caseman, if entered at all, without any specific reference to the exact time and date of receipt. The most reliable source was the court file and this had been examined by MOJ and by the Appellant. The Tribunal had no power to order the production of documents from the court file or to order that copy documents are provided without payment of the prescribed fee. The Appellant has the remedy that he seeks under the Civil Procedure Rules available to him.

On that basis, the appeal is dismissed.