Line to take - LTT22 - Accessibility of court records
- FOI/EIR: FOI
- Section/Regulation: s21, s32
- Issue: Accessibility of court records
- Source: Decision Notice
- Details: [Redacted name] / Legal Services Commission, [Redacted name] / Transport for London, Armstong / HMRC
- Related Lines to Take: LTT139
- Related Documents: FS50075171 [Redacted name], FS50076855 [Redacted name], Awareness Guidance 6 (s21), Awareness Guidance 9 (s32), EA/2008/0026 (Armstrong)
- Contact: EW/GF
- Date: 05/01/2009
- Policy Reference LTT22
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
Information contained in court records is not necessarily, and will rarely be, information which is accessible by other means.
At the outset, caseworkers need to check that the public authority is considering the information under the correct legislation - where information is the requester’s own court records, it is likely to be their own personal data and therefore a subject access request.
This line to take concerns information which is contained in court records, but not that which is held only by virtue of being contained in court records. Information which is held only by virtue of being contained in a court record will be exempt by virtue of section 32.
Access to court records in civil cases is governed by the Civil Procedure Rules. Rule 5.4 concerns the accessibility of court records.
- Rule 5.4B (1) allows a party to proceedings to obtain from the court any of the documents listed at paragraph 4.2A of the Practice Direction
- Rule 5.4B (2) allows a party to obtain from the court any other document, where the Court gives permission.
- Rule 5.4C allows the supply of certain documents to non parties to proceedings. The statement of a case and any judgement or order given in public is generally available, unless the court orders otherwise. Other information is available where the court gives permission.
The right to access court records in civil cases, therefore, is not absolute, being dependent on the discretion of the court.
Bearing in mind the scope of this line as set out in the 2nd paragraph under “further information” above. Where information is held for another purpose but is also contained within a court record therefore, the exemption provided by section 21 will not apply, unless the public authority knows as a matter of fact that:
- the relevant court would use its discretion to provide the applicant with the information requested, or
- the information is reasonably accessible by other means
In the great majority of cases, however, this will not be known.
The Commissioner cannot support the proposition that court records are necessarily and by definition reasonably accessible because this does not take into account the right of the court to refuse access. Even if a court always did use its discretion and disclose its records to anyone who requested them, the fact that it is entitled to refuse to do so means that it is not reasonable to assume their accessibility.
The DN in case reference FS50076855 (where the complainant had requested information about legal aid costs) states that, “the information [...] is only available at the discretion of the court and therefore cannot be considered easily accessible by the public.” (DN para. 26)
There is no equivalent rule in the Criminal Procedure Rules, where the only reference to court records is in part 6. Rule 6.1 requires magistrates to keep a register of the cases heard in their court. This register is not public and access to it is at the discretion of the magistrate.
During the investigation of case reference FS50075171, HMCS confirmed that court records in criminal cases are not accessible to members of the public (DN para. 4.17).
The decisive factor in the Commissioner’s finding was the general accessibility of the records. The decision reads, “Even had the complainant been able to identify which court records he was interested in, it is clear from the information provided by HMCS that he would not necessarily be able to access the actual records.”
Like the HMCS case referred to above, in the case of Armstrong v the Information Commissioner and HMRC, the Tribunal was presented with evidence which we consider supports the ICO approach that generally court records in criminal cases are not accessible to members of the public.
Despite this evidence, this approach was not reflected in the Tribunal’s conclusion. The Tribunal judged that the requested information (documents referred to in the open court during the Siddiqui trial) was reasonably accessible by other means as it was held by the Crown Court, and could be obtained by applying to the Court itself who can grant access to them. We will not follow the Tribunal’s decision — we dispute the fact the information is reasonably accessible, as the information is made available at the discretion of the courts - hence, we cannot predict what the decision of the judge regarding the release would be. The Tribunal themselves admitted this at paragraphs 55 and 56 where it said “we are reluctant to determine the final decision of the Judge” and that “it is not for this Tribunal to take the place of a Circuit Judge”, despite going on to make the judgement that s21 applied. Therefore the Commissioner will not follow the Tribunal’s judgement regarding s21.