FOI/EIR FOI Section/Regulation

S32(1) and (2)

Issue Applying s32 beyond the end of litigation / an inquiry
Line to take:

The application of section 32 is not limited in time to the period in which the litigation / inquiry is taking place. It can apply to information that continues to be held by a public authority after the litigation or inquiry is complete, if that is the only reason for which it is held.

Further Information:

Section 32 provides that :

“32. – (1) Information held by a public authority is exempt information if it is held only by virtue of being contained in-

(a) any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter,

(b) any document served upon, or by, a public authority for the purposes of proceedings in a particular cause or matter, or

(c) any document created by –

i) a court, or

ii) a member of the administrative staff of a court,

for the purposes of proceedings in a particular cause or matter.

 

(2) Information held by a public authority is exempt information if it is held only by virtue of being contained in—

(a) any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or

(b) any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration."

In the Tribunal case of Kennedy v ICO and Charity Commission  (EA/2008/0083), the requester claimed that as the inquiry that was the subject of the appeal was complete at the time the request was made, s32(2) could no longer apply. However, the Tribunal agreed with the public authority who submitted that the exemption is “not limited in time to the period which the inquiry is taking place (ongoing inquiry), but also applies to documents that continue to be held by the public authority after the inquiry has ceased (completed inquiry) if that is the only reason for which they are held” (paragraph 71). The Tribunal acknowledged that their finding provides a very wide scope for s32(2).

The Tribunal’s primary reason for their conclusion was because of the wording of s32(2). It was of the view that “the adverbial phrase ‘for the purposes of the inquiry or arbitration’ qualified the word ‘placed’ in s32(2)(a) and not the word ‘held’ in the preceding general words to s32(2). Subsequent events cannot alter the purpose for which a document was placed in somebody’s custody. The words ‘held only by virtue of being contained in’ simply provides a causal connection between the presence of the document in the public authority’s records and the placement with the person conducting the inquiry” (paragraph 87).

While the Tribunal’s decision in the Kennedy case focused on the application of s32(2), the same principle can be applied to court records, as they confirm at paragraph 74 (see below); i.e. section 32(1) is not limited in time to the period in which the litigation is taking place. It can apply to documents that continue to be held by a public authority after the litigation has been completed, if that is the only reason for which they are held.

Rationale for the position

The Tribunal’s decision was informed by the public authority’s appeal submissions, in which they argued three key points in support of their position that s32(2) applies to documents that continue to be held by a public authority once the inquiry is completed.

(i) The position is consistent with analogous provision relating to court records:

Section 32(1) provides that “documents filed with, or otherwise placed in the custody of, a court for the purposes of proceedings”. The public authority argued that “S32(1) would readily be interpreted so as to cover documents held both during proceedings and after such proceedings had concluded, and there is no reason in principle why inquiry documents should be treated any differently” (paragraph 74).

(ii) The position is consistent with the approach adopted by the Inquiries Act 2005:

The provisions in s18(3) and s41(1)(b) of the Inquiries Act 2005 provide:

18(3) Section 32(2) of the Freedom of Information Act 2000… does not apply in relation to information contained in documents that, in pursuance of rules under section 41(1)(b) below, have been passed to and are held by a public authority.

 

41(1) The appropriate authority may make rules dealing with –

(b) the return or keeping, after the end of an inquiry, of documents given to or created by the inquiry

If all information contained in documents received or created by an inquiry becomes free of the s32 exemption at an inquiry’s conclusion, then there would be no need for these provisions in the Inquiries Act 2005; the exemption contained in s32(2) would no longer apply.

(iii) The position is consistent with the meaning of s63(1) FOIA (paragraph 72).

If s32(2) does not apply to documents that continue to be held by a public authority once the inquiry is completed, then s63(1) FOIA (as it applies to s32) would, for all practical purposes, be rendered otiose (paragraph 75).  The Tribunal considered this point formidable, stating that ‘it gives substantial weight to the interpretation we are adopting in this case’ (paragraph 89).The public authority submitted that s63(1) provides that information contained in a historical record cannot be exempt information by virtue of section […] 32. What constitutes a “historical record” for the purposes of s63(1) is provided for in s62(1) FOIA as follows:

For the purposes of this Part, a record becomes a “historical record” at the end of the period of thirty years beginning with the year following that in which it was created”.

The public authority put forward that these provisions indicate that, after a period of 30 years, documents to which s32 would otherwise apply cease to enjoy that exemption. If s32 ceases to apply immediately following the conclusion of an inquiry then s63(1) FOIA would be restricted in application only to those court proceedings, inquiries or arbitrations that had been ongoing for over 30 years (paragraph 77).

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Source Details

Tribunal

Kennedy / Charity Commission (14 June 2009)

Related Lines to Take
194
Related Documents

EA/2008/0083

Contact GF
Date 10/02/2011 Policy Reference

LTT198