FOI/EIR FOI Section/Regulation s32 Issue Effect of the source and the use of information on engaging s32
Line to take:

Section 32(1) can continue to apply if information originally obtained from a court record is later used for a different purpose. There is nothing in the section which limits the way in which that information may be used or processed by the public authority provided it is, in effect, only acquired by virtue of being in a ‘court record’ (i.e. a document falling within s32(1)(a), (b) or (c)).

The same principle can be equally apply to documents that fall under s32(2); i.e. s32(2) can continue to apply if information originally obtained for the purposes of an inquiry or arbitration is later used for a different purpose. There is nothing in s32(2) which limits they way in which information may be used or processed, provided that it is held only by virtue of being in a document that was placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration.

Further Information:

Section 32 states –

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 exemption states, information is exempt under s32 if it is held only by virtue of being contained in a court record under subsection 1, or a document held by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration under subsection 2. The Commissioner is required to consider how the information was acquired and why the information continues to be held in assessing whether s32 applies.

The impact of the source of the information

  • If the information was originally acquired for the purpose of proceedings or an inquiry (or arbitration), and not acquired via any other route, s32 will be engaged (even if it is also used for other purposes).

  • If the information was originally acquired via some other route and still held for that other purpose (as well as the proceedings / inquiry), s32 will not be engaged as the information is not held ‘only by virtue’ of being contained in a court record / for the purposes of an inquiry. This position was taken by the Tribunal in the Kennedy v ICO and Charity Commission case in relation to documents withheld under s32(1) (paragraph 102) and confirmed by the subsequent High Court appeal of the same decision (paragraph 29).

  • If the information was originally acquired via some other route, but is no longer kept for that purpose and remains held by the public authority for the purposes of proceedings or inquiry only, s32 will be engaged.

The Tribunal in the case of DBERR v ICO and Peninsula Business Services Ltd (EA/2008/0087) considered the effect of the source and use of information in relation to information withheld under s32(1) and its findings are summarised below. The same principles can be applied to documents relating to an inquiry or arbitration that would be considered under s32(2).

The impact of how the information is used

Information originally acquired for the purpose of proceedings is then used for a different purpose

The Tribunal in the case of BERR v ICO and Peninsula Business Services Ltd considered a request for the names and addresses of respondents to employment tribunal claims. BERR refused disclosure under section 32(1)(a) in its Notice of Appeal. The names and addresses of respondents are extracted from hard copy or online forms and recorded in BERR’s computer case handling system, ETHOS. The ETHOS system is also used to produce ad hoc reports for management, policy and monitoring purposes which may not be directly related to proceedings in a particular cause or matter. The requester consequently disputed that such extracted information could be subject to s32(1)(a); the Counsel for the requester argued that the plain and ordinary meaning of s32(1)(a) is that it applies to information that is held only by virtue of being contained in a court document. In other words, if a public authority extracts information from a court document (i.e. information that would be exempt under s32(1)(a)) and puts it into a database, or another document, s32(1)(a) ceases to apply as that information is no longer held only by virtue of being contained in a court document (paragraph 34).

The Tribunal disagreed and recognised ‘There is nothing in the section which limits the way in which that information may be used or processed by the public authority provided it is, in effect, only acquired by virtue of being in a ‘court record’ (i.e. a document falling within s32(1)(a), (b) or (c)). Therefore if information, once acquired is used for [other] matters, it is still covered by the exemption’ (paragraph 53).

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Source Details

Tribunal

BERR / Peninsula Business Services (28 April 2009)

Kennedy / Charity Commission (14 June 2009)

Kennedy High Court (19 January 2010)
Related Lines to Take
LTT194
Related Documents

EA/2008/0087 (DBERR), EA/2008/0083 (Kennedy), [2010] EWHC 475 (Admin) (Kennedy High Court decision)

Contact GF
Date 10/02/2011 Policy Reference

LTT197