FOI/EIR FOI Section/Regulation S32 Issue Using a dominant purpose test under sections 32(1)(c) and 32(2)(b)
Line to take:

In circumstances where the underlying purpose behind the creation of a document  is not immediately clear, then in determining whether or not information is exempt under s32(1)(c)(i) or (ii) or s32(2)(b) a dominant purpose test can be applied to assess whether the document containing the information has been created for the dominant purposes of proceedings in a particular cause or matter, or an inquiry or arbitration.

Further Information:

This line is derived from ICO’s arguments in the Tribunal case of DBERR v ICO and Peninsula (EA/2008/0087) in relation to section 32(1)(c)(ii).  However the Commissioner considers that the same principles can be applied to sections 32(1)(c)(i) and 32(2)(b),

Section 32(1)(c) provides that :

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

(c) any document created by—

(i) a court, or

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

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

 

Section 32(2)(b) provides that :

Information held by a public authority is exempt information if it is held only by virtue of being contained in –

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

Rationale for the position

The Tribunal agreed with this approach when the Commissioner put it forward in the case of DBERR v ICO and Peninsula (EA/2008/0087). The case concerned a request for disclosure of the names and addresses of respondents to employment tribunal claims, which was refused under section 32(1)(a) by the public authority in its Notice of Appeal. The name and addresses of respondents are extracted from hard copy or online forms and recorded in BERR’s computer case handling database, ETHOS. The ETHOS database is used for mixed purposes – as well as recording respondents’ details, it is used to produce ad hoc reports for policy and monitoring purposes. The requester consequently disputed that such extracted information could be subject to s32(1)(a). Ultimately, the Tribunal concluded that the requested information in this case was exempt under s32(1)(a) (see LTT197 Effect and source of information on engaging s32 for further information). However, the Tribunal considered, in the alternative (ie. if s32(1)(a) didn’t actually apply) , whether the requested information, as it was held in the ETHOS database for mixed purposes, could also be exempt under s32(1)(c).

On the subject of information that is input into the ETHOS database, the Counsel for the ICO put forward that ‘in determining whether or not a document that is used for mixed purposes has been ‘created… for the purposes of proceedings in a particular cause or matter’ within the meaning of s32(1)(c), the proper approach is to consider the dominant purpose for which the documents was created, consistent with the test approved by Davis J in the High Court in BBC v Sugar and the ICO…’ (paragraph 44). At paragraph 51 of the decision, the Tribunal accepted the reasoning of the Counsel for the ICO, who concluded that the entry of the information into ETHOS is the creation of a document by a member of the administrative staff of a court and that the dominant purpose for the creation of such documents in ETHOS is that of administering proceedings in particular cause or matter (paragraph 45).

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Source Details

Tribunal

DBERR / Peninsula Business Services Ltd (28 April 2009)

Related Lines to Take

LTT194, LTT197

Related Documents

EA/2008/0087

Contact GF
Date 10/02/2011 Policy Reference

LTT196