FOI/EIR FOI Section/Regulation s32 Issue What is a ‘document’ for the purposes of s32
Line to take:

The Commissioner advocates an expansive interpretation of “document” for the purposes of s32. A “document” will encompass information recorded in any form, including information stored in electronic media.

Further Information:

In the case of Dominic Kennedy v ICO and Charity Commission (EA/2008/0083), the appellant put forward that a “document” should be given a narrower meaning than “information” and should not be stretched to cover information stored electronically (see paragraphs 50-52).

However, this narrow interpretation was not accepted by the Tribunal who endorsed the broader position taken by the public authority and the ICO. The public authority set out four factors to support their view that there should be an expansive interpretation of what a document is for the purposes of s32 (paragraph 53) which are summarised below:

  • There is no reason or principle of policy to restrict the definition of document in s32 to information contained in written form;
  • The law has generally approached the interpretation of the word document expansively and defined, or held, it to include reference to information held in media other than the written form;
  • Were the word ‘document’ to be restrictively defined, that odd and unintended consequences would result; and
  • The reading submitted by the appellant in this case is inconsistent with previous decisions of the Tribunal.

The public authority submitted that the purpose behind s32 “is to ensure that the existing rules regarding access to, or publication of information contained in, court records or held for the purposes of inquiries or arbitrations are not circumvented by applications under FOIA” and that “it would be entirely inconsistent for s32…to have a very restricted application to only written documents. If that were the case, then an applicant under FOIA could secure access to, say, a video film, a memory stick or a computer hard drive that had been disclosed in the course of civil proceedings (because each of them was [not] a ‘document’) when they could not secure access to a letter or witness statement” (paragraph 55).

Further evidence was drawn from the Tribunal in the cases of Mitchell v Bridgnorth District Council and ICO (EA/2005/0002) and Ministry of Justice v ICO (EA/2007/0120 & 0121) who both considered that tape recordings were documents for the purpose of s32(1). The Tribunal in Mitchell had asserted that s32 not only applies to paper documents, but should be ‘broadly construed in an age offering so many recording media’ (see LTT38 for more detail the types of documents envisaged to be ‘court records’ and covered by s32(1)(a), (b) or (c) and informed by these decisions).

The Tribunal confirmed that it preferred the expansive interpretation, clarifying that it considered that ‘it would not be commonsense to accept a narrower interpretation particularly in light of the definition of ‘information’ under s84 FOIA, namely “information recorded in any form”. Otherwise it would mean that certain information would not be caught by the exemption only because of the “form” in which the information was placed in the custody of the person conducting an inquiry, and nothing to do with its contents’ (paragraph 58).

The Commissioner agrees with the Tribunal’s point that Parliament did not intend for a document in hard copy to be exempt, but if the same document was on a CD or DVD, it would not be exempt. Furthermore, the Tribunal noted that if this wasn’t the case, judges and those conducting inquiries would have to continually have this in mind when deciding in what format they wished documents to be lodged with them. This would place an unnecessary and unwelcome burden on the operations of courts and inquiries, particularly at a time when courts and inquiries are increasingly using new technology to make proceedings more efficient (paragraph 58).

The Tribunal’s interpretation was upheld in the subsequent High Court decision; the Court confirmed that ‘to find otherwise would make a nonsense of the definition of “information” in s84 of FOIA. It seems clear…. for the Act to work – and in particular for s32 to work at all – the word “document” must now mean what everybody now thinks it means and includes both hard and electronic copies of documents’.

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Source Details

Tribunal

Mitchell / Bridgnorth District Council (10 October 2005)

Ministry of Justice / IC (29 July 2008)

Kennedy / Charity Commission (14 June 2009)

Kennedy  / Charity Commission High Court decision (19 January 2010)
Related Lines to Take

LTT38, LTT194

Related Documents

EA/2005/0002 (Mitchell), EA/2007/0120 & 0121 (MoJ), EA/2008/0083 (Kennedy), [2010] EWHC 475 (Admin) (Kennedy High Court decision)

Contact GF
Date 10/02/2011 Policy Reference

LTT195