FOI/EIR FOI Section/Regulation s32 Issue Applying section 32: gateway line
Line to take:

The application of section 32 requires consideration of two concepts – information and documents: it is not only the reason for holding the information itself which is relevant, but also the type of document the information is contained in.

This gateway line provides a starting point for considering these two concepts when applying section 32 and signposts relevant lines to take.

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 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, of the purposes of the inquiry or arbitration.”

As the wording of the exemption implies, the application of section 32 requires consideration of two related concepts – information and documents: it is not only the reason for holding the information itself which is relevant, but also the type of document the information is contained in.

Both elements will have an impact on whether the exception is engaged, however the order in which the concepts are considered will be determined by the facts of the case. For instance, it may be obvious that there is a question about whether a document containing the information is actually a court record, in which case it would make sense to start by considering the nature of the document in which the information is held.  Alternatively, it may be obvious that main issue is whether the information is held only by virtue of being contained in a court record, in which case it might be preferable to   consider the information related lines to take first.

Some issues in relation to the two concepts that may need to be taken into account are highlighted below, with links to relevant lines to take.

Documents

When considering the concept of documents, you may need to assess whether the requested information is contained within a document that would be covered by the requirements of s32 - LTT38 provides further detail on the types of documents that the Commissioner envisages to be covered by s32(1). This may be added to and expanded to cover s32(2) as FOIA case law develops.  For rationale on the Commissioner’s broad interpretation of ‘document’ in the context of s32, you can look at LTT195.

Where the underlying purpose behind the creation of a document is uncertain then you may need to examine the document involved to assess whether its dominant purpose is related to court proceedings / an inquiry or arbitration -  LTT196 details the Commissioner’s approach to carrying out a dominant purpose test in such circumstances.  

Information

When considering the concept of information, it is important to ascertain that the information is held only by virtue of being contained in a relevant document for the exemption to be engaged – in determining this, you may need to consider how the information was acquired and how the information is used – this is covered by LTT197 ‘The effect of the source and use of information on engaging s32’.

As LTT197 describes, s32(1) can continue to apply to information originally acquired for the purpose of proceedings that is then used for a different purpose. In the Tribunal case of DBERR v ICO and Peninsula (EA/2008/0087) the Tribunal considered a very particular set of circumstances in which information was extracted from a court record and then mixed with other information.

Other issues you may need to consider:

If the court proceedings or inquiry related to the information is complete – see LTT198 (Applying s32 beyond the end of proceedings / an inquiry).

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Source Details

Tribunal

DBERR / Peninsula (28 April 2009)

Kennedy / Charity Commission (14 June 2009)
Related Lines to Take

LTT38, LTT195, LTT196, LTT197, LTT198

Related Documents

EA/2008/0087 (DBERR), EA/2008/0083 (Kennedy)

Contact GF
Date 10/02/2011 Policy Reference

LTT194