Line to take - LTT38 - Definition of court records

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  • Section/Regulation: s32
  • Issue: Definition of court records
  • Source: Information Tribunal
  • Details: Ministry of Justice / IC (29 July 2008); Mitchell / Bridgnorth District Council (10 October 2005)
  • Related Lines to Take: LTT86
  • Related Documents: FS50065282, EA/2005/0002 (Mitchell), Awareness Guidance 9, EA/2007/0120 & EA/2007/0121 (MoJ)
  • Contact: HD
  • Date: 11/08/2008
  • Policy Reference: LTT38
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

A tape recording or a written transcript of court proceedings will be considered to be court documents prepared by a member of the administrative staff of the court, despite being prepared by independent transcribers, and thus are caught by the absolute exemption at s32(1)(c)(ii).

Examples of other documents which may fall under sections 32(1)(a) & (b) are provided below.

Further Information

Section 32 of the FOIA, which provides an absolute exemption, states as follows:

“32. - (1) Information held by a public authority is exempt in formation 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”

The Tribunal has considered the s32 exemption in two cases to date, namely, Mitchell & the Information Commissioner (October 2005) and the Ministry of Justice (MoJ) & the Information Commissioner (July 2008). Both cases turned on whether a tape recording of court proceedings would engage s32(1)(c)(ii) although both also commented on various aspects of s.32 as detailed below.

Section 32(1)

Both Tribunals commented on the fact that a court is not a public authority for the purposes of the FOIA. In Mitchell, Bridgnorth District Council was the relevant public authority because the Council had obtained a copy of the transcript of criminal proceedings involving two of its officers. The Tribunal said “...we are considering court records held by public authorities either as litigants, third parties subject to a court order or, as in the present case, interest[ed] parties...” (para 31). In the MoJ case, the Tribunal said that the Act applied to the MoJ because “...a court is not a public authority but the Appellant and its predecessor, as government departments, are...” (para 11).

Section 32(1)(a) & (b)

The Tribunal in Mitchell at paragraph 33 said:

”...documents to which (a) and (b) relate will routinely include pleadings, witness statements and exhibits served as part of a litigant’s (or in criminal proceedings most often the prosecution’s) case as well as lists of documents, material served under an obligation to disclose and documents such as skeleton arguments prepared by advocates...”

In the MoJ case, the Tribunal said that sections (a) and (b) would cover “...material deployed in and for the purposes of live or even past litigation...” (para 18).

Section 32(1)(c)(i)

In the Mitchell case, the Tribunal were unclear as to what documents Parliament intended s32(1)(c) to cover which they said was made “ easier by the antithesis enacted between documents created by a court and a member of the administrative staff of a court...” (para 35). The Tribunal highlighted the example given in the Act’s Explanatory Notes of ‘bench memoranda’ which it took to refer to a document issued by the judge with a view to discussing the application of relevant legal principles, such as the draft directions to the jury on issues of law, commonly issued to advocates for comment or contradiction before the summing up. The Tribunal concluded that this was a good example of the type of document which would be exempt by virtue of s32(1)(c).

Section 32(1)(c)(ii)

In considering particularly the class of documents created by administrative staff of a court, the Tribunal in Mitchell decided that it could not extend to public orders of the court such as witness summonses or orders under the Contempt of Court Act 1981. Instead at paragraph 37, the Tribunal concluded that s.32(1)(c)(ii) “...must refer to internal documents such as notes to a judge from a court officer relating to the conduct of a particular case, for example, a note from an usher to the judge, indicating a problem with a juror...”

Court Transcripts & Tape Recordings

Both Tribunals agree that for the purposes of s32, the term “document” covers both paper transcripts and tape recordings. The Tribunal in the MoJ said at paragraph 16:

“ distinction can be made for present purposes, between a tape recording and a transcript. That was the view taken in Mitchell: it accords with commonsense and Rule 10.15(7) of the Family Procedure Rules...”.

The Tribunal in Mitchell also pointed out that it cannot be argued that the character of a transcript, (i.e. a record of the proceedings for the purposes of interested third parties) means that it is not created for the purposes of proceedings in a particular cause or matter. At paragraph 21, the Tribunal said that “...what matters is the purpose for which the original tapes were created. Transcripts or copies are not to be regarded as new documents created for a different purpose...”.

However the Tribunals in Mitchell and the MoJ cases differed in their conclusions as to whether court transcripts fall within s32(1)(c). The Commissioner will follow the approach taken in the MoJ case.

In Mitchell, the Tribunal distracted itself with trying to interpret the meaning of the word “court” and failed to consider whether transcribers were administrative staff of the court for the purposes of s32(1)(c)(ii). The Tribunal in the MoJ case simply said that the Mitchell decision had been wrongly decided. At paragraph 25, the Tribunal said:

“In Mitchell, the Tribunal ruled that [the transcript] was not created by the court for the purposes of (c)(i), interpreting “court” as meaning the judge (para 42). That ruling is not unequivocally challenged here; rather it is argued.. .that the Tribunal did not tackle the question whether (c)(ii) applied...”

The Tribunal in the MoJ case therefore limited themselves to considering the easier question of whether independent transcribers are administrative staff of the court and said:

“...we have accepted the submission that the contractor holds the tapes as agent for the Appellant [the MoJ]. That being so, we agree that the member of his staff who recorded the tapes can properly be regarded as a member of the administrative staff of the court.
‘Administrative’ is a very broad term. His or her status as a member of the court staff cannot be dependent on the terms on which he or she is engaged...” (paragraph 29).

The Commissioner will follow the approach taken in the MoJ case, namely, that a tape recording is a document created by a member of the administrative staff of a court and thus is exempt from disclosure under s32(1)(c)(ii).