DECISION BY THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to dismiss the appeal.

The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 17 April 2014 does not involve an error on a point of law.  The appeal is therefore dismissed.
 
This decision is given under section11 of the Tribunals, Courts and Enforcement Act 2007.

REASONS

The legal issue that arises on this appeal
1.	Is the audio-recording of a public oral hearing before an Upper Tribunal Judge (“the disputed information”) a “document” for the purposes of section 32 of the Freedom of Information Act 2000 (FOIA)?

2.	If it is, then the disputed information is automatically exempt from disclosure under FOIA by virtue of section 32. In those circumstances the First-tier Tribunal Judge was right to strike out the requester’s appeal.

3.	If the disputed information is not a document, then section 32 does not apply and on the face of it the First-tier Tribunal Judge was wrong to strike out the requester’s appeal. In those circumstances there may, of course, be some other exemption under FOIA that might apply.

4.	To cut to the quick, I conclude that an audio-recording of a hearing before an Upper Tribunal Judge is a “document” for the purposes of section 32 and so dismiss the requester’s appeal.

The background to the appeal
5.	The requester and Appellant is Mr Edem. The First and Second Respondents are respectively the Information Commissioner and the Ministry of Justice (as the public authority responsible for Her Majesty’s Courts and Tribunal Service [HMCTS]). The Ministry of Justice was joined as a party in the Upper Tribunal proceedings.

6.	On 5 November 2012 Upper Tribunal Judge Jacobs held a hearing of an appeal by the Information Commissioner and the Financial Services Authority (FSA) (GIA/1598/2012) against a decision by the First-tier Tribunal on Mr Edem’s original appeal against a Decision Notice by the Information Commissioner. At the same time Judge Jacobs heard Mr Edem’s cross-appeal against aspects of the First-tier Tribunal’s decision. Judge Jacobs allowed the appeals by the Commissioner and the FSA and dismissed that by Mr Edem, who in turn appealed unsuccessfully to the Court of Appeal (Edem v the Information Commissioner & the Financial Services Authority [2014] EWCA Civ 92 [2014] AACR 19). I would simply add that the outcome of the appeal before Judge Jacobs and then the Court of Appeal is irrelevant to the issue I now have to decide. Rather, that case simply provides the context for what happened next.

What happened next: Mr Edem’s request
7.	On 29 January 2013 Mr Edem e-mailed the Upper Tribunal office requesting “a copy of the audio-recording that HMCTS holds of the public appeal hearing that the UT (Judge Jacobs) conducted on 5th November 2012. HMCTS may provide the requested information on inter alia a CD(s) or DVD(s). I would ask HMCTS to treat this as a request for information under DPA 1998 and/or FOIA 2000.”

8.	On 27 February 2013 Judge Jacobs issued a ruling to the effect that it was in the interests of justice for Mr Edem to be provided with a copy of the recording of the hearing in question. This was for the sole purpose of allowing Mr Edem “to refresh his memory of what was said in the course of the hearing and to use that information for the purpose of any legal challenge to the decisions of the Upper Tribunal in these cases”. In other respects the ruling was subject to the condition that Mr Edem did not alter, copy or publish the recording (or any transcript of it), or make it available to any third party, “without the express permission of an Upper Tribunal Judge”. The Upper Tribunal office sent Mr Edem the Judge’s ruling and 7 CDs.

9.	On 9 March 2013 Mr Edem e-mailed the Upper Tribunal office asking for HMCTS to deal with the matter administratively as a FOIA request. He expressed the view that Judge Jacobs’s “unjustified and unreasoned restrictions on the use of the audio recording of the public appeal hearing in this matter are incompatible with both the principle of open justice and the proper administration of justice”.

10.	On 21 June 2013 HMCTS confirmed that it held the information requested but refused to provide it, arguing that it was exempt from disclosure by virtue of section 32(1) of FOIA. Mr Edem lodged a complaint with the Commissioner.

The Information Commissioner’s decision
11.	On 21 January 2014 the Commissioner issued a Decision Notice (FS50511429), which concluded that the public authority was entitled to rely on the exemptions in section 32(1)(c)(i) and (ii) of FOIA. Mr Edem appealed to the First-tier Tribunal. The Commissioner lodged a response resisting the appeal and inviting the First-tier Tribunal to strike out the appeal under rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber [GRC]) Rules 2009 (SI 2009/1976), on the basis it had no reasonable prospect of success.

The First-tier Tribunal’s decision
12.	On 17 April 2014, the then First-tier Tribunal (GRC) Chamber President, Judge Warren, struck out Mr Edem’s appeal, explaining his decision as follows:

“3. ... the only rational argument open to Mr Edem on this appeal is whether the term ‘document’ includes a CD. In the days of short-hand note taking both the note and its transcription would obviously have been ‘documents’. Any transcript of a tape recording or digital recording would undoubtedly be a ‘document’. I have no doubt that any Tribunal would construe section 32 FOIA purposively and hold that, for the purpose of the Act, a ‘document’ is not limited to something written down on paper but extends also to a digital recording on CD. The CD is therefore to be treated no differently from a written transcript of its contents.”

13.	On 23 May 2014 Judge Warren gave permission to Mr Edem to appeal to the Upper Tribunal on the sole ground as to whether his strike-out decision contained an error of law as to the meaning of “document” in section 32 of FOIA. Judge Warren refused permission to appeal on various other grounds (“the further grounds”).

The proceedings before the Upper Tribunal
14.	On 3 September 2014 I issued preliminary observations drawing attention to the subsequent decision of Judge Williams on 13 June 2014 in Peninsula Business Services Ltd v Information Commissioner and Secretary of State for Justice and the Lord Chancellor (FOIA) [2014] UKUT 284 (AAC) (“Peninsula Business Services Ltd”). I suggested that in the light of that decision Mr Edem “may be in some difficulty in making good and pressing home the ground of appeal on which permission has been given by Judge Warren.”

15.	On 1 December 2014 I held an oral hearing at which Mr Edem renewed his application for permission to appeal on the further grounds. In a detailed ruling dated 2 December 2014 I refused permission on those further grounds and confirmed that the appeal was limited to the sole ground on which Judge Warren had given permission, on which I made a number of further observations. Since then all three parties have made detailed written submissions on the appeal.

16.	I have a discretion as to whether to direct an oral hearing of this appeal, having considered the parties’ views (Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698; “the UT Rules”), rule 34(2)). Mr Edem sees no reason why I should not determine the appeal on the papers if I and the Respondents accept certain factual matters which he enumerates. The Respondents both argue that the appeal can be resolved on the papers.

17.	It is fair and just to determine this appeal on the papers. The appeal concerns a narrow point of statutory construction and the arguments have been fully canvassed in the written submissions. I can see no added value from an oral hearing. Whether I (or the Respondents) agree with various factual assertions made by Mr Edem is immaterial given the appeal is confined to a well-defined issue of law (see paragraph 1 above).

The Upper Tribunal’s analysis
Introduction: the legislative scheme and the parties’ submissions in outline
18.	Section 32 of FOIA is an absolute class-based exemption (see section 2(3)(c)), so no issue of weighing the respective public interests arises. Section 32(1) provides as follows:

	“32 Court records, etc.
(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.”

19.	It will be recalled that the Information Commissioner in his Decision Notice took the view that the audio-recording of the hearing before Judge Jacobs fell within section 32(1)(c).

20.	Mr Edem has sought to persuade me that the audio-recording was created neither by Judge Jacobs nor (more particularly) by “a member of the administrative staff of a court” for the purposes of those proceedings. That argument is entirely hopeless for the reasons I explained in my ruling of 2 December 2014. So the only issue is whether or not the audio-recording is a “document” for the purposes of section 32(1). The nub of Mr Edem’s argument on that point is that an audio-recording, while it may be a record, is not a “document”, which presupposes some hard copy (typically paper) format.

21.	I disagree, and accept the submissions by the Respondents on this point. As Ms Kamm submits for the public authority, FOIA makes a distinction between the information requested and any document in which that information is contained. Exempt information is described in Part II of FOIA in various ways, e.g. by reference to its availability (section 21), the likely effects of disclosure (section 27) or by reference to the class of document in which it is contained (section 32). “Information” itself is defined by FOIA as meaning “information recorded in any form” (section 84), although the Act does not also define “document”. However, there are two main reasons why an Upper Tribunal audio-recording is a “document” for the purposes of section 32, as Mr Paines for the Commissioner sets out in his written submission, supported by Ms Kamm. The first reason relates to the purpose and construction of the relevant legislation and the second to the natural meaning of the term “document”, as consistently shown in the case law.

The underlying purpose of section 32(1) of FOIA
22.	The first reason is that the underlying purpose of section 32 of FOIA is so that courts and tribunals can rule on disclosure of their own records. As Toulson LJ (as he then was) held in R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates' Court [2012] EWCA Civ 420; [2013] QB 618:

“72. The exclusion of court documents from the provisions of the Freedom of Information Act is in my view both unsurprising and irrelevant. Under the Act the Information Commissioner is made responsible for taking decisions about whether a public body should be ordered to produce a document to a party requesting it. The Information Commissioner's decision is subject to appeal to a tribunal, whose decision is then subject to judicial review by the courts. It would be odd indeed if the question whether a court should allow access to a document lodged with the court should be determined in such a roundabout way.”

I do not see there is any significance in that Toulson LJ’s comments were made by reference to section 32(1)(a), rather than section 32(1)(c), as that simply reflected the factual context of the particular proceedings in that case.

23.	The principle that courts and tribunals (and not the Information Commissioner) have control over the disclosure of information in their own possession was reaffirmed by the Supreme Court in Kennedy v Charity Commission [2014] UKSC 20 (see Lord Mance at [26], Lord Toulson at [119]-[120] and Lord Sumption at [156]). Kennedy itself, of course, was concerned with section 32(2) of FOIA, not section 32(1), but the Supreme Court considered the inter-relationship between the two provisions. Lord Toulson (with whom Lord Neuberger and Lord Clarke agreed) concluded as follows:

“123. Just as Parliament by excluding courts and court records from the provisions of the Act did not intend that such records should be shrouded in secrecy, but left it to the courts to rule on what should be disclosed, so in the case of a statutory inquiry Parliament decided to leave it to the public body to rule on what should be disclosed, balancing the public interest in its decision being open to proper public scrutiny against any countervailing factors, but the exercise of such power must be amenable to review by the court.”

24.	Judge Jacobs’s ruling of 27 February 2013 was necessarily made under the broad case management powers under rule 5 of the UT Rules. As Mr Paines argues, it would be very odd if courts and tribunals had an exclusive power to decide whether or not to order disclosure of written court records (including transcripts) while at the same time audio (or video) recordings were subject to a separate regime under FOIA. There is simply no rational basis for any such bifurcated system, which would be wholly inconsistent with the principle recognised by the Supreme Court in Kennedy. 

25.	If there is any ambiguity in the wording of section 32(1) – and I do not accept that there is – then the matter is put beyond any doubt by the heading to the section, which is “Court records etc”. This expression plainly covers both written records and non-written recordings, and the heading provides part of the context for the process of interpretation (see R v Montila [2004] UKHL 50 at [34]).

The natural meaning of the term “document”
26.	The second reason why an Upper Tribunal audio-recording is a “document” for the purposes of section 32 concerns the natural meaning of the word “document”, as consistently demonstrated by the case law. Put very simply, and at the risk of descending into tautology, a “document” is something that documents information. The word “document” itself does not contain any limitation as to the mode by which the information is conveyed. At least four cases, all decided at first instance, support this interpretation.

27.	The first is Hill v R [1945] KB 329, where the narrow issue was whether an insurance broker’s account books were “documents owned for the purposes of a business," within the meaning of the proviso to section 104 of the War Damage Act 1943. Humphreys J held as follows (at 332-333):

“where the construction involves the right meaning to be given to a word in such common use in business as the word ‘document’ – a word of which every-one thinks he knows the meaning – the court should endeavour to give to it a meaning with which the ordinary educated business man would agree. Whether I regard the derivation of the word ‘document’ from Latin, or the decisions of the courts on the meaning of the word, I find that a document must be something which teaches you and from which you can learn something, i.e., it must be something which affords information. ... To constitute a document, the form which it takes seems to me to be immaterial; it may be anything on which the information is written or inscribed – paper, parchment, stone or metal.”

28.	Given that Humphreys J was delivering judgment 70 years ago, what matters is not his specific examples (“paper, parchment, stone or metal”) but rather the generality of the underlying proposition that “to constitute a document, the form which it takes seems to me to be immaterial; it may be anything on which the information is written or inscribed”.

29.	 That general proposition is reinforced by the second case, Grant v Southwestern and County Properties Ltd. [1975] Ch 185, where the context was the discovery of documents for litigation purposes. Walton J held as follows (at 197):

“If two parties to litigation have a record of a vital conversation, one in the form of a shorthand note, and the other in the form of a tape recording, I think that both would be justified, under normal English usage, in saying that they held ‘documentary proof’ of the conversation. If there was in existence a tape recording of Queen Elizabeth I's speech to her troops at Tilbury would not all the world say that that was a priceless historical document?”

30.	The third case is Kennedy v Information Commissioner [2010] EWHC 475 Admin, i.e. Kennedy at the level of the High Court (nothing in the subsequent appellate decisions casts any doubt on this particular point). Counsel for the Charity Commission had argued there, on the basis of Hill and Grant, that “document” in section 32 covered both hard copy and electronic records. Calvert-Smith J agreed:

“It seems that to find otherwise would make a nonsense of the definition of ‘information’ in Section 84 of the Freedom of Information Act. It seems clear to me that for the Act to work at all – and in particular for Section 32 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.”

31.	The fourth and final case is the Upper Tribunal’s decision in Peninsula Business Services Ltd. According to Judge Williams, “the time has now passed when a look at the current usage of the terms ‘document’ and ‘information’ can be confined to printed or written matter only even in the context of the operation of courts and tribunals. I have no hesitation in saying that an electronic record can be regarded as a document in an appropriate context” (at [44]). Judge Williams concluded that “the term ‘document’ in section 32 means no more than the form or format (paper, electronic, audio, video or otherwise) in which the information is recorded” (at [46]). Mr Edem suggests that Peninsula Business Services Ltd is distinguishable as the information came from what he describes as a “protected source”. However, Judge Williams’s decision that an electronic dataset constituted a document for the purpose of section 32 was not premised on the particular nature of the requested information.

32.	As a matter of strict precedent, none of these four decisions is binding on me. However, I am satisfied that they were correctly decided and follow their reasoning and conclusion. The term “document” carries a wide meaning covering any form or format in which information is recorded in a form suitable for the conveying of that information. I therefore reject Mr Edem’s central argument that data storage devices are types of media on which documents may be stored but which are not themselves documents for the purpose of section 32.

Mr Edem’s other submissions on the meaning of “document”
33.	Mr Edem has raised a number of other points both in support of his appeal and by way of reply to these submissions by the Respondents, but none of them has any traction.

34.	First, Mr Edem argued, in effect, that as the Upper Tribunal hearing of 5 November 2012 was a public hearing then the audio-recording of that hearing was necessarily a public document subject to disclosure under FOIA. He referred to the importance of transparency and public confidence in the administration of justice (see paragraph [9] above). He pointed out that proceedings before the Supreme Court can be viewed live over the internet and pointed to the important recent developments in opening up family proceedings in the courts. However, the competing policy reasons are irrelevant as Parliament has provided that section 32 is a class-based absolute exemption. Indeed, Mr Edem’s examples simply support the contrary proposition. The changes in respect of the Supreme Court and the family courts have taken place precisely because decisions on how public access to such proceedings should be improved is a matter for those courts, not for FOIA.

35.	Mr Edem also cites the Upper Tribunal’s decision in Independent Parliamentary Standards Authority v Information Commissioner and Leapman [2014] UKUT 33 (“IPSA”), now upheld by the Court of Appeal (IPSA v Information Commissioner and Leapman [2015] EWCA Civ 388), but fails to explain how that authority supports his arguments. In any event IPSA was not concerned with either section 32 of FOIA or the meaning of the word “document”, and I can see no way in which it can be used to buttress Mr Edem’s core submission that audio recordings and other media are not documents.

36.	Mr Edem further relies on the Information Commissioner’s guidance (The right to recorded information and requests for documents) along with the Ministry of Justice’s own separate guidance that specifically deals with the section 32 exemption in FOIA (https://www.justice.gov.uk/downloads/information-access-rights/foi/foi-exemption-s32.pdf). The former is of no direct assistance as it does not even purport to be guidance on the application of section 32. Moreover both documents are no more than what they say they are: guidance. They are not law. They do not pretend to be authoritative and exhaustive on all points.

37.	Mr Edem also refers to the Practice Direction: Access to Audio Recordings of Proceedings (see https://www.judiciary.gov.uk/publications/practice-direction-access-to-audio-recordings-of-proceedings/) issued by the Lord Chief Justice. However, on its own terms that Practice Direction only “applies to civil and family proceedings in all courts in England and Wales” (paragraph 1), so it does not apply in tribunals. It does not even assist Mr Edem in any event, as the Practice Direction starts from the position that no disclosure of audio proceedings is permitted (paragraph 2), although a Judge may direct otherwise in exceptional circumstances (paragraphs 4 and 5). Judge Jacobs’s ruling was certainly consistent in principle with the Practice Direction, if arguably more generous in practice.

38.	Mr Edem prays in aid section 25 of FOIA, where the term “document” is used in the sense of a written document, and argues that this meaning applies throughout the Act. However, section 25 is concerned specifically with a certificate signed by a Minister of the Crown, so it is difficult to see, in that context, how such an instrument could be other than a written document. As Mr Paines neatly puts is, the argument is based on the fallacy that because A includes B, A therefore is B; thus “written documents are documents, but not all documents are written documents”.

39.	Finally, Mr Edem relies on rule 13(4) of the UT Rules, which provides as follows:

“(4) If the Upper Tribunal or a party sends a document to a party or the Upper Tribunal by email or any other electronic means of communication, the recipient may request that the sender provide a hard copy of the document to the recipient. The recipient must make such a request as soon as reasonably practicable after receiving the document electronically.”

40.	He says this supports his argument as it is not possible to send an audio recording by fax (one of the permitted means of communication under rule 13(1)). This argument is misconceived. First, rule 13(1) provides for various other permissible methods of communication, including pre-paid post or delivery by hand (which are viable for sending digital media). Second, rule 1(3) defines a “document” for the purpose of the UT Rules in very broad terms as “anything in which information is recorded in any form” (consistently, of course, with the case law discussed above). Third, and in any event, procedural rules in secondary legislation cannot legitimately be used to construe the primary legislation in an entirely different context (FOIA).

Conclusion
41.	I therefore conclude that this appeal must be dismissed. Mr Edem’s appeal to the First-tier Tribunal had no reasonable prospect of success and Judge Warren was right to strike it out.

Signed on the original				Nicholas Wikeley
on 29 April 2015					Judge of the Upper Tribunal