Maya Forstater v Information Commissioner & Ors

The Judicial College is not a public authority for the purposes of the Freedom of Information Act 2000.

The Ministry of Justice is a public authority for the purposes of the Freedom of Information Act 2000.

The Ministry of Justice holds information falling within the scope of the appellant’s request for information dated 18 March 2020; namely, information relating to the cost of “Trans Awareness Training delivered to the ET and AIT by Gendered Intelligence”.

The Freedom of Information Act 2000 (“FOIA”) provides for a general right of access to information held by public authorities. That right is subject to exceptions and exemptions. It makes provision for its enforcement by the Information Commissioner (“ICO”) and for a right of appeal from a decision of the ICO to the General Regulatory Chamber of the First-tier Tribunal (“FtT”).

The import of section 58 of FOIA is that the right of appeal to the FtT involves a full merits consideration of whether, on the facts and the law, the public authority dealt with the request for information in accordance with Part I of FOIA (see e.g. Information Commissioner v Malnick and ACOBA [2018] UKUT 72 (AAC); [2018] AACR 29 at paragraphs [45]-[46] and [90]).

The appeal to which this decision relates is brought by the appellant against a Decision Notice issued by the ICO on 21 April 2021 – reference IC-47775-C4C7, in which the ICO concurred with the conclusion of the public authority that it did not, for the purposes of FOIA, hold the information requested by the appellant.

The hearing of the appeal on 20 October 2021 remained in open session for its duration, and there is no closed annex to this decision.

On 18 March 2020, the appellant wrote (via the whatdotheyknow website) to the HM Courts and Tribunals Service (‘HMCTS’), requesting information in the following terms (“the requested information”):

“In [sic] understand that the organisation Gendered Intelligence delivers Trans awareness training was recently delivered to judges in the Employment Tribunal (ET) and Asylum and Immigration Tribunal (AIT) (Tribunals Edition 3 2018…)

Please can you provide dates and details of Trans Awareness Training delivered to the ET & AIT by Gendered Intelligence.

Including:

- Cost of the training

- Contract / agreement / TORs for commissioning the training

- Copies of any presentation material and/or hand outs used

- Which judges attended the training”.

The aforementioned request received a response on 31 March 2020 (“the Response”). The Response was drawn on Ministry of Justice headed ‘notepaper’ and signed by David Hall on behalf of the Judicial College. In substance, the Response conveyed the conclusion that the requested information was not held by the Ministry of Justice, it being explained that “statutory responsibility for the provision and content of training for the judiciary rests with the Lord Chief Justice as Head of the Judiciary in England and Wales, and the Senior President of Tribunals, in line with the Constitutional Reform Act 2005” and that “the Judiciary are not a public authority for the purposes of FOIA…” .The appellant was provided with the link to the relevant chapter in the Equal Treatment Bench Book, outside of the FOIA regime. It is perhaps also worthy of observation that the Response further identifies that any request for an internal review of the decision therein should be made to the “Disclosure Team” at the Ministry of Justice.

On 2 June 2020, the appellant wrote to David Hall at the Judicial College “to request an internal review of Her Majesty’s Courts and Tribunals Service / Judicial College’s handling of my FOI request…”, in the following terms:

“The response says that “The judiciary are not a public body for the purposes of FOIA (they are not listed under Schedule 1 of the Act)” However the Judicial Studies Board is listed under Schedule 1. The Judicial College was formerly the Judicial Studies Board and there has been no indication that it has been removed from the scope of the Freedom of Information Act.

Please confirm or deny whether this information is held by the Judicial

College (which is covered by FOI) and provide the information please.”

The reply to this request for an internal review is dated 30 June 2020 and was once again set out on Ministry of Justice headed ‘notepaper’ and electronically signed by the Judicial College (“the Reply”). This Reply stated as follows:

“Outcome

All information on judicial training that is held by the Judicial College, is only held on behalf of the judiciary of England and Wales, who are exempt from the provisions of the FOIA 2000 by not being cited as a public authority in Schedule 1 of the FOIA. Which is why it is not held by the MoJ.

In terms of accountability, the Judicial College publishes an annual report of its activities, including how much money has been spent by the College across the multiple aspects of its remit, and this report is in the public domain. The most recent report covered the financial and training year of 2018-19 and can be viewed online at this link:

https://www.judiciary.uk/publications/review-of-activities/

In due course, an annual activities report will be published online for the financial and training year of 2019-20.

Although Mr Hall was clear in his response to your FOIA request, that the information you requested was exempt from disclosure, Mr Hall went on to give you discretionary information, outside of the FOIA about the Equal Treatment Bench Book, and I am satisfied that in doing so Mr Hall was as helpful as he could reasonably have been expected to be.

In conclusion, I am satisfied that the response you received on 31st March 2020 was correct.”

The appellant made a complaint to the ICO on 25 July 2020 about the way in which the abovementioned request for information had been handled. As alluded to above, the ICO responded by way of a Decision Notice dated 21 April 2021, in which it was concluded that: (i) the relevant public authority was the Ministry of Justice; and (ii) the requested information was not held by the Ministry of Justice for the purposes of FOIA.

By way of a Notice of Appeal dated 18 May 2021, the appellant appeals to the FtT in reliance on the following grounds:

The following issues fall for consideration by the Tribunal:

Section 1(1) of FOIA reads:

“(1)

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

(a)

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

(b)

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

Section 3 of FOIA – headed “Public Authorities” is central to the instant appeal, and reads:

“(1)

In this Act “public authority” means—

(a)

subject to section 4(4), any body which, any other person who, or the holder of any office which—

(i)

is listed in Schedule 1, or

(ii)

is designated by order under section 5, or

(b)

a publicly owned company as defined by section 6.

(2)

For the purposes of this Act, information is held by a public authority if—

(a)

it is held by the authority, otherwise than on behalf of another person, or

(b)

it is held by another person on behalf of the authority.

Pursuant to section 4 of FOIA the Secretary of State or the Minister for the Cabinet Office may by order amend Schedule 1 by:

It is not in dispute that the Judicial Studies Board is listed in Schedule 1 FOIA and that the Judicial College is not identified by name therein.

By section 50 of FOIA:

“Application for decision by Commissioner

(1)

Any person (in this section referred to as “the complainant”) may apply to the Commissioner for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part I.”

Section 57 of FOIA materially states:

“Appeal against notices served under PartIV

(1)

Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice.”

The powers of the Tribunal in determining this appeal are set out in section 58 of FOIA, as follows:

“If on an appeal under section 57 the Tribunal considers -

(a)

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

(b)

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.”

We note that the burden of proof in satisfying the Tribunal that the Commissioner’s decision was wrong in law or involved an inappropriate exercise of discretion rests with the Appellant.

The Tribunal has before it, an “Open Bundle” running to 378 pages, a short “Closed Bundle”, detailed written skeleton arguments drawn by each of the parties and a bundle of authorities, which was supplemented at the oral hearing. The Tribunal also heard oral evidence from Amelia Wright, the Executive Director of the Judicial College, whose 17 page witness statement and attached 233 pages of exhibits is contained within the Open Bundle. In addition, the parties each made oral closing submissions. We have taken account of all the evidence and submissions before us when reaching our conclusions, irrespective of whether such evidence or submissions have been specifically alluded to during the course of this decision.

We conclude that the Judicial College is not a public authority for the purposes of FOIA.

As indicated above, the Judicial College is not named within Schedule 1 to FOIA. Given the unambiguous terms of section 3 of FOIA, one could be forgiven for thinking that this is all that requires saying on this issue. However, the appellant asserts that although the Judicial College is not listed by name within Schedule 1, it is nevertheless a body listed therein as the successor to the Judicial Studies Board, a body which is specifically named within that schedule.

Amelia Wright provided the Tribunal with detailed written and oral evidence on the history and operational scope of both the Judicial Studies Board and the Judicial College, which we accept as accurate in its entirety. This evidence was clear, plausible and consistent throughout.

The Judicial Studies Board was set up in 1979, following a review by Lord Justice Bridge, to provide training for judges in the criminal jurisdiction. In 1985, its role was extended to cover the provision of training in the civil and family jurisdictions and the supervision of training for magistrates and judicial chairs and members of tribunals.

Prior to the Constitutional Reform Act 2005 coming into force in April 2006, the position was that the Judicial Studies Board was a non-departmental public body overseen by the Lord Chancellor (a Cabinet Minister). The Permanent Secretary of the Lord Chancellor's Department (a senior civil servant) was responsible for advising the Lord Chancellor on how the Judicial Studies Board’s plans fitted into his or her overall strategy. As well as providing training, the Judicial Studies Board advised the Lord Chancellor and other government departments on the policy for, and content of, training for lay magistrates, appropriate standards for, and content of, training for judicial officers in Tribunals and on the training requirements of judges, magistrates and judicial officers in Tribunals. Operational objectives were agreed annually between the Lord Chancellor and the Judicial Studies Board. The Chair (a member of the senior judiciary) and board members of the Judicial Studies Board were appointed by the Lord Chancellor. Each year the Judicial Studies Board made a report to the Lord Chancellor on its activities. The Lord Chancellor and the Minister of State were answerable to Parliament on matters relating to the Judicial Studies Board. Staff within the Judicial Studies Board were all civil servants.

In his oral statement to the House of Lords on 26 January 2004, the Secretary of State and Lord Chancellor set out detail on the Government’s proposals for the transfer of the Lord Chancellor’s judiciary-related functions to the Lord Chief Justice. Judicial independence was enshrined in law with the commencement of the Constitutional Reform Act 2005 and all judicial functions previously held by the Lord Chancellor transferred to the Lord Chief Justice.

In November 2009, the Lord Chief Justice and the Senior President of Tribunals agreed to establish the Unified Judicial Training Advisory Board (“UJTAB”) under the chairmanship of Lord Justice Sullivan. The UJTAB was asked to advise them on unified judicial training and in its July 2010 report it recommended the establishment of a joint Judicial Training College - a single judicial training organisation in England and Wales for judges, legal advisers, magistrates and non-legal members of tribunals. The Lord Chief Justice and Senior President accepted the recommendation.

There was a transition period during which the Judicial Studies Board supported the Lord Chief Justice (instead of the Lord Chancellor) in his new responsibilities for judicial training. During that time, the Judicial Studies Board transitioned to being operated as an independent judicial body and part of the Directorate of Judicial Offices for England and Wales - the forerunner of the current Judicial Office.

On 1 April 2011, the Judicial College came into being and at the same time the Judicial Studies Board came to an end. The Judicial College is not a body established by statute but is a constituent part of the Judicial Office, an administrative arms-length body of the Ministry of Justice. The Judicial College advises the Lord Chief Justice and is accountable to him through the Judicial Executive Board.

There is no dispute that the Judicial Studies Board was listed as a public authority in Schedule 1 to FOIA prior to the Constitutional Reform Act 2005 and that, despite the transfer of functions from the Lord Chancellor to the Lord Chief Justice as a consequence of that Act and the subsequent extension of Judicial Studies Board’s remit, it remained listed in Schedule 1 and, indeed, remains listed to this date. It is also beyond dispute that in the approach to 1 April 2011, the functions and operation of the Judicial Studies Board closely resembled, or were identical to, the functions and operation of the Judicial College in the immediate aftermath of that date.

The appellant’s primary submission is that the Judicial College is the same body as the Judicial Studies Board, with the consequence that it is a public authority by virtue of the Judicial Studies Board being listed in Schedule 1 to FOIA. We reject this submission. In doing so we need say no more than that we accept Amelia Wright’s evidence that the Judicial Studies Board “came to an end” on 31 March 2011 and that “On 1 April 2011, the Judicial College, a new body, came into being…”. There is nothing before us to directly contradict Amelia Wright’s evidence in this regard, and the mere fact that the Judicial Studies Board fulfilled the same functions or operated with the same structure before 1 April 2011 as the Judicial College did from 1 April 2011 does not lead us to reject the clear and consistent evidence provided by Amelia Wright.

The fact that the Judicial Studies Board remained listed in Schedule 1 to FOIA, despite the significant changes brought about by the Constitutional Reform Act 2005 and the coming into being of the Judicial College on 1 April 2011, is not indicative of the Judicial College being the same body as the Judicial Studies Board. The leap in logic required to reach such a conclusion is simply too great and one we are not prepared to make. In such circumstances we find, contrary to the appellant’s submissions, that: (i) the Judicial College is not the Judicial Studies Board, renamed; and, (ii) the literal interpretation of the words “Judicial Studies Board” in Schedule 1 to FOIA is not “the Judicial College”.

We now move on to consider the appellant’s alternative position, which is put in the following terms in paragraph 32 of the appellant’s skeleton argument of 13 October 2021:

“If the Tribunal does not accept that the interpretation urged by the appellant is a straightforward literal construction of the words of the schedule, it is in any event a properly purposive construction. The will of parliament should be given effect, not thwarted: and since the JSB was included on the schedule when the Act came into force in 2005, and parliament has not since then evinced any intention to remove it or to take a different view of the proper status of the JC, giving effect to the will of parliamentinvolves interpreting the words “Judicial Studies Board” to mean the JSB’s successor body, the JC. If necessary, it is submitted that the conditions are met for a “rectifying construction” to substitute the words “Judicial College” for “Judicial Studies Board”: see Inco Europe Ltd. and Others v First Choice Distribution (a firm) and Others [2000] 1 WLR 586.”

Once again, we reject the appellant’s submission. It is beyond legal argument that there is a presumption that the text of a statute is the primary indication of Parliament’s intention and that the enactment is to be given its literal meaning. If, on an informed interpretation, there is no real doubt that a particular meaning of an enactment is to be applied, that is to be taken as its legal meaning. If there is a real doubt, it is to be resolved by applying interpretive criteria. Where the meaning of statutory words is plain and unambiguous it is not for the courts or tribunals to interfere, nor invent ambiguities.

In our view the words “Judicial Studies Board” could not be clearer. They refer to the body known by that name and described above, which was set up in 1979, was in existence at the time of the passing of FOIA and which ceased to exist on 31 March 2011. What the appellant urges the Tribunal to do is to read words into FOIA that are not there. This is not beyond the scope of the Tribunal’s jurisdiction, but this jurisdiction is confined to plain cases of drafting mistakes: seeInco Europe Ltd. and Others at [592E]. The absence of an Order made pursuant to section 4 of FOIA to either remove the Judicial Studies Board from Schedule 1 to the Act or to add the Judicial College thereto, is not akin to a drafting mistake in the words of a statute. If the tribunal were to conclude otherwise, we would in effect be, in our view impermissibly, taking on a function reserved by statute to either the “Secretary of State or the Minister for the Cabinet Office”. We have no evidence as to why the Judicial College has not been added to the list of public authorities in Schedule 1 of FOIA, nor do we have evidence as to why the Judicial Studies Board has not been removed from such list and, in our view, it would be entirely wrong to speculate on such matters.

The appellant makes one further submission in her attempt to persuade the Tribunal that the Judicial College is a public authority for the purposes of FOIA, and that is to place reliance on responses to FOIA requests issued by the Judicial College between 2013 and 2015, in which the Judicial College identifies itself as being subject to FOIA. The issue of whether the Judicial College is a public authority listed in Schedule 1 to FOIA is, however, one of legal interpretation. The fact that individuals within the Judicial College, or even the Judicial College itself, took the position that it was a public authority for the purposes of FOIA is not a matter capable of bearing on the legal analysis required to determine that issue.

Having concluded that the Judicial College is not a public authority for the purposes of FOIA, we need not consider Issue 2.

It is not in dispute that: (i) the Ministry of Justice is a public authority for the purposes of FOIA, and; (ii) the ‘judiciary’ are not a public authority for the purposes of FOIA.

The relevant statutory provision for consideration at this stage of our analysis is section 3(2)(a) of FOIA. By virtue of section 3(2)(a), information is held by a public authority if it is held “by the authority, otherwise than on behalf of another person”.

The meaning of the term ‘held’ was examined by the Upper Tribunal in University of Newcastle upon Tyne v Information Commissioner and BUAV [2011] UKUT 185 (AAC), and the analysis therein was subsequently approved by the Court of Appeal in Department of Health v Information Commissioner and Simon Lewis [2017] EWCA Civ 374; [2017] 1 W.L.R. 3330 at [54].

In BUAV at [27], the Upper Tribunal upheld the decision of the First-tier Tribunal, which had reasoned:

“’Hold’ is an ordinary English word. In our judgment it is not used in some technical sense in the Act. We do not consider that it is appropriate to define its meaning by reference to concepts such as legal possession or bailment, or by using phrases taken from court rules concerning the obligation to give disclosure of documents in litigation. Sophisticated legal analysis of its meaning is not required or appropriate. However, it is necessary to observe that ‘holding’ is not a purely physical concept, and it has to be understood with the purpose of the Act in mind. Section 3(2)(b) illustrates this: an authority cannot evade the requirements of the Act by having its information held on its behalf by some other person who is not a public authority. Conversely, we consider that s.1 would not apply merely because information is contained in a document that happens to be physically on the authority’s premises: there must be an appropriate connection between the information and the authority, so that it can be properly said that the information is held by the authority….For example, an employee of the authority may have his own personal information on a document in his pocket while at work, or in the drawer of his office desk; that does not mean that the information is held by the authority.” (cited in BUAV at [23])

Upper Tribunal Judge Wikeley continued:

“28.

… The test is not whether the public authority ‘controls’ or ‘possesses’ or ‘owns’ the information in question; simply whether it ‘holds’ it … ‘Hold’… is an ordinary English word and is not used in some technical sense in the Act. That construction is also supported by one of the leading texts, Information Rights: Law and Practice by Philip Coppel QC (3rd edn, Hart Publishing, 2010), which observes that FOIA ‘has avoided the technicalities associated with the law of disclosure, which has conventionally drawn a distinction between a document in the power, custody or possession of a person’ (p.339, para. 9-009) ….

29.

… I do not regard the tribunal’s reference to the need for ‘an appropriate connection between the information and the authority’ as a misguided attempt to replace the statutory language with its own ‘rather nebulous’ test (as Mr Pitt-Payne put it). On the contrary, the tribunal was simply pointing to the need for the word ‘hold’ to be understood as conveying something more than the simple underlying physical concept, given the intent behind section 3(2).”

It is clear that the analysis of whether information is held by a public authority for the purposes of FOIA, is intensely fact specific. That is undoubtedly true of the assessment required by the Tribunal in the instant case.

The appellant asserts the Ministry of Justice’s purposes must encompass the purposes of all of its parts, including the Judicial College. The purpose of the Judicial College is said to be “beyond any reasonable doubt”, the training of judges. As such the requested information is said to be held by the Judicial College, and therefore by the Ministry of Justice, at least in part if not entirely for the Judicial College’s and Ministry of Justice’s own purposes.

The respondents’ position is that insofar as the Ministry of Justice physically holds the requested information, it is held solely on behalf of others, namely, the judiciary. Consequently, it is said, the requested information is not ‘held’ by the Ministry of Justice within the meaning of section 3 of FOIA.

It can be readily ascertained from what is said above, that the exact nature of the role and workings of the Judicial College, as well as its relationship with the Ministry of Justice, are of some importance in this appeal. In this regard we have, in particular, found both the detailed evidence given by Amelia Wright and the “Judicial College: Activities Report 2020-2021” to be instructive in our understanding of such matters.

Having considered the evidence as a whole, we make the following findings of fact:

We now turn to consider whether the requested information is held by the Ministry of Justice for the purposes of FOIA, with the aforementioned findings at the forefront of our minds.

It is to be recalled that the appellant’s request for information stated as follows:

“Please can you provide dates and details of Trans Awareness Training delivered to the ET & AIT by Gendered Intelligence.

Including:

- Cost of the training

- Contract / agreement / TORs for commissioning the training

- Copies of any presentation material and/or hand outs used

- Which judges attended the training”

It is difficult to ascertain what information the appellant was seeking to obtain other than the information identified in the four subheadings and the dates of any “Trans Awareness Training delivered to the ET and AIT by Gendered Intelligence”. In such circumstances, and absent any further attempt before the Tribunal to identify additional information which might be said to be captured within the term “details”, we conclude that the request sought five pieces of information; the dates of Trans Awareness Training delivered to the ET & AIT by Gendered Intelligence, and the information sought in the subsequent four bullet points in the request.

We first consider the appellant’s overarching submission i.e. that the purpose of the Judicial College is to train the judiciary and that, consequently, any information it holds which is aligned with that purpose must be information held by the Judicial College, at least in part, for its own purposes and not solely on behalf of the judiciary. It is further said that given that the purposes of the Ministry of Justice must incorporate the purposes of the Judicial College, any information held by the Judicial College for the purpose of training judges must also be held by the Ministry of Justice for the same purpose.

As we have concluded above, the Judicial College exists to support the Lord Chief Justice and the Senior President of Tribunals to meet their statutory responsibilities for the training of the judiciary. It is constituted both by members of the judiciary, and civil servants who provide administrative support to those members of the judiciary.

In acting in their roles within the Judicial College, the judiciary are fulfilling a judicial function – to train, and to oversee the training of, judicial office holders. Anything undertaken by a member of the judiciary under the auspices of the Judicial College is undertaken in that person’s capacity as a member of the judiciary. The judicial constituent of the Judicial College does not work for, nor are they any a part of, the Judicial Office. This is in contrast to the administrative staff of the Judicial College, who are part of the Judicial Office and employed in that capacity by the Ministry of Justice.

It is to be recalled that it is the “Judicial Heads of Division” (in the instant case the respective Presidents of the FtT (IAC) and the Employment Tribunal), who decide upon the relevant Chamber’s judicial training requirements, and it is the judiciary who prepare or oversee the content of such training. Judicial Course Directors are also responsible for deciding upon and engaging all speakers, making sure that they are available for the date required and sending them written specification of the subjects they should address. There is no evidence before us to support a conclusion that that these ‘processes’ were departed from in the instant scenario.

There is also no evidence before to us which could support a conclusion that the dates that “Trans Awareness Training was delivered to the ET & AIT by Gendered Intelligence”, copies of any presentation material and/or hand outs in relation to such training or the names of the judges who attended any such training, is information which is held by the Judicial College to support any of its non-judicial functions. Given the role of the judiciary within the Judicial College, and the duties of the respective Chamber Presidents in identifying and monitoring the training needs of those judicial office holders for whom they are responsible, in our conclusion the aforementioned information would be held by the Judicial College, solely on behalf of the judiciary and therefore not ‘held’ by the Judicial College and by extension by the Ministry of Justice, for the purposes of FOIA.

We next turn to consider the request for information held by the Ministry of Justice regarding the cost of the “Trans Awareness Training delivered to the ET and AIT by Gendered Intelligence”. In relation to this request, and in disagreement with the ICO’s conclusions on this issue (see in particular [40] and [52] of the Decision Notice), we conclude that the Ministry of Justice does hold relevant information for the purposes of FOIA.

In Amelia Wright’s statement, the terms of which were no doubt carefully drawn, there are several references to matters of budget and finance. In contrast to other aspects of the requested information, the overarching budget of the Judicial College is not under the control of the judiciary, and that includes the Lord Chief Justice and Senior President of Tribunals. The Judicial College is tasked with delivering training to, inter alia, judicial office holders “within budget”. It is the Secretary of State for Justice (the Lord Chancellor) who has statutory responsibility for the provision and allocation of resources for the administration of justice, including the financing of education and training of the judiciary.

The Judicial Office (of which the Judicial College is a constituent part) accounts to the Ministry of Justice for its expenditure, albeit at a high level. We assume that the Judicial Office would strive for accuracy when doing so and would found the information it provides in this regard on evidence rather than conjecture. Whilst we readily accept that the Ministry of Justice would have no interest in, or use for, information regarding the cost of an individual trainer at an individual training event, we find it difficult to understand how the Judicial Office could, even with a semblance of accuracy, account for its expenditure to the Ministry of Justice if there was not a mechanism or process in place to identify and collate – at least at some point in time, the individual items of expenditure which go to make up the whole. Indeed, the evidence before us positively points to the completion of “internal Judicial Office finance forms for payment of… training.”

In such circumstances, we find it to be highly likely that information of the type sought in the instant request i.e. the cost of any “Trans Awareness Training delivered to the ET and AIT by Gendered Intelligence” is information that the Judicial College does not hold solely on behalf of the judiciary, but is information which it holds, at least in part, because it forms a part of the process or mechanism of collation of budgetary information which would ultimately allow the Judicial Office to accurately account for its expenditure to the Ministry of Justice, and provide a audit trail in relation to such expenditure.

However, as we have identified above, the Judicial College is not a public authority for the purposes of FOIA and is not required, pursuant to FOIA, to disclose this information. The issue we must, therefore, determine is whether the Ministry of Justice holds this information, and we find that it does. The Judicial College – or at least its administrative arm, is a constituent part of the Judicial Office which, in turn, is part of the Ministry of Justice, albeit as an ‘arms length body’. In our view, any information held by the Judicial College, and by this we mean ‘held’ in its common dictionary sense not in the sense defined by section 3 of FOIA, is also held by the Ministry of Justice, by dint of the aforementioned connection. The critical question thereafter is whether it is held in the sense identified by section 3 of FOIA and in this case we have already concluded that it is.

We finally turn to the request for the “Contract / agreement / TORs for commissioning the training”. In this regard, we observe that in a letter dated November 2020, authored by David Hall and drawn in reply to a request from the ICO in the instant matter, the following is said:

“It is a judicial, not official, decision as to whether an external speaker is required to address a judicial training seminar or training event. It is also a matter of judicial decision to decide upon who to engage. The College does not raise a contract for each individual speaker. There is a policy in place which sets out the terms of engagement, which includes a reference to a set fee, and the speakers are set up on the finance register to enable payment. The policy is for use by Course Directors and Training Leads when organising a training seminar. …

The Judicial College does not publish details of its policies (which would include this policy on speakers) because all college policies are judicially approved and therefore, are held by the College on behalf of the judiciary.”

Once again, there is nothing in the evidence before us to indicate that the aforementioned general process was not operated in the instant matter. That being so, we find that no contract was raised (and by this we mean that no specific written contract was raised) with Gendered Intelligence. As to the “Terms of Reference” or “agreement” for the commissioning of the training by Gendered Intelligence, it is the judiciary who oversaw the content of the training and, in particular, the Judicial Course Director who was responsible for deciding upon and engaging the speakers, making sure that the speakers were available for the date required and sending them written specification of the subjects they should address, albeit guided by a policy approved by the judiciary. In such circumstances we find that any “Terms of Reference” or “agreement” that may exist for the commissioning of the particular training by Gendered Intelligence, is held by the Judicial College solely on behalf of the judiciary and is, therefore, not held by the Judicial College or the Ministry of Justice for the purposes of FOIA. We make no findings in relation to the policy upon which such an agreement or terms of reference may have been based, as we conclude that this did not form part of the requested information.

Pursuant to Section 58 of FOIA:

“(1)

If on an appeal under section 57 the Tribunal considers –

(a)

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

(b)

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.”

A three-judge panel of the Upper Tribunal grappling with the interpretation of section 58 in Malnick, said as follows [at 104]:

“It is clear from the concluding phrase “and in any other case the tribunal shall dismiss the appeal”, that the words before that describe the tribunal’s duty where it allows the appeal. That means that the substitution of a decision notice must occur where an appeal is allowed. It is not an alternative to allowing an appeal and so the word “or” must be read as meaning “and”.” (our emphasis)

The function of the Information Commissioner under section 50 of FOIA is to decide if the appellant’s request for information was dealt with in accordance with Part I of FOIA. We have concluded that the Ministry of Justice holds information relating to the cost of “Trans Awareness Training delivered to the ET & AIT by Gendered Intelligence” and that the ICO was wrong to conclude otherwise. Given these findings, at first blush the pathway to the Tribunal issuing a Substituted Decision Notice appears clear. However, for the reasons we set out below, that is not so.

Pursuant to section 1 of FOIA any person who makes a request of a public authority has two rights. The first is the right “to be informed in writing by the public authority whether it holds information of the description specified in the request” (section 1(1)(a)). The second, if that is the case, is the right “to have that information communicated to him” (section 1(1)(b)), save where such information is exempt under Part II of FOIA to the extent it is covered by an absolute exemption or to the extent “the public interest in maintaining the exemption outweighs the public interest in disclosing the information” (section 2(2)).

It is to be observed that the ICO did not engage with Part II of FOIA in its Decision Notice nor has it done so within the appellate process. There has also been an absence of engagement with Part II by the Ministry of Justice in its Response of 31 March 2020, its review decision of 30 June 2020, and within the appellate process.

The appellant’s position is that it was for the public authority to identify any exemption it wished to rely upon, and the time for doing so has now passed. The appropriate course, it is said, is for the Tribunal to now issue a Substituted Decision Notice requiring production of the information within scope of the request that is held by the public authority. The respondents, with unanimity, contended that the appropriate course, in the event that the Tribunal were to find information within the scope of the request to be held by a public authority, would be for the Tribunal to direct the public authority to reconsider the appellant’s request on the basis that such information is held, at which time it could consider whether any Part II exemption applies.

There is, of course, an alternative approach not contended for by the parties, namely for the Tribunal to provide the Ministry of Justice with an opportunity within the confines of this appeal process, to identify any matters in Part II of FOIA that it contends provide an exemption to the requirement to communicate the ‘held’ information. The Tribunal, having first provided the appellant and the ICO with an opportunity to address any matters raised, could then determine the applicability of any Part II provision that is relied upon. This is the approach that we intend to take.

We observe that within its communication to the ICO dated “XX December 2020” (found at pages 334-336 of the Open Bundle, the index to which suggests the letter was in fact sent on the 18 December 2020) the Ministry of Justice raised matters which carry the footprint of a Part II exemption, albeit not framed in such terms. Having considered all the circumstances, we conclude that fairness dictates that the Ministry of Justice should be provided with an opportunity to consider whether the information it holds within the scope of the request is, in its view, exempt from communication under Part II of FOIA.

Whilst this process could be undertaken by the Tribunal allowing the appeal and issuing a Substituted Decision Notice requiring the Ministry of Justice to consider the request of 18 March 2020 on the basis that it holds information relevant to the to the cost of “Trans Awareness Training delivered to the ET and AIT by Gendered Intelligence”, there can also be no doubt that the Tribunal has jurisdiction to consider the applicability of an exemption raised for the first time during the course of the appellate process (see DEFRA v Information Commissioner and Birkett [2011] UKUT 17 (AAC) at [58]). We further observe that in Malnick (at [102]), the Upper Tribunal stated, albeit in an unrelated context, that “…the tribunal must consider everything necessary to answer the core question whether the authority has complied with the law, and that includes consideration of exemptions not previously relied on…”.

With the above in mind and having paid careful regard to the overriding objective set out in rule 2 of the Tribunal Procedure (First-tier Tribunal) (general Regulatory Chamber) Rules 2009, including the consequences of additional cost and the delay to outcome of these proceedings, we conclude that the appropriate course to enable the Tribunal to complete the task set by section 58 of FOIA, is for the issue of the application of Part II of FOIA to be considered within the confines of the extant appellate process. In furtherance of that objective, we issue the directions that follow.

By no later than 21 December 2021 the Ministry of Justice must notify the Tribunal, and all other parties, whether or not the held information is exempt under Part II of FOIA.

If the Ministry of Justice either (i) notifies the Tribunal that the held information is not exempt under Part II of FOIA or (ii) fails to send notification to the Tribunal in accordance with Direction A (or any amendment thereto), then the Tribunal will proceed to determine the appeal on the basis that the held information is not exempt under Part II of FOIA.

If the Ministry of Justice notifies the Tribunal, in accordance with Direction A, that the held information is exempt under Part II of FOIA, then on the same occasion the Ministry of Justice must file with the Tribunal and serve on the other parties, a document identifying the exemption(s) relied upon and providing detailed reasons for reliance on such exemption(s).

If the Ministry of Justice notifies the Tribunal that the held information is exempt under Part II of FOIA, the Information Commissioner must, by 18 January 2022, file with the Tribunal and serve on the other parties’ written submissions on the application of the exemption(s) relied upon by the Ministry of Justice.

If the Ministry of Justice notifies the Tribunal that the held information is exempt under Part II of FOIA, the appellant must, by 8 February 2022, file with the Tribunal and serve on the other parties’ written submissions on the application of the exemption(s) relied upon by the Ministry of Justice.