IN THE FIRST-TIER TRIBUNAL Appeal No: EA/2016/0303

GENERAL REGULATORY CHAMBER

(INFORMATION RIGHTS)

ON APPEAL FROM:

The Information Commissioners Decision Notice No: FS50636926

Dated: 28 November 2016

Appellant:

Respondent: The Information Commissioner

On the papers

Before
HH Judge Shanks
and
Pieter de Waal and Michael Jones

Date of Decision: 26 April 2017

Subject matter:

Freedom of Information Act 2000 (FOIA)

Section 31(3) and 31(1)(a) (Law enforcement)
 Appeal No: EA/2016/0303

DECISION OF THE FIRST-TIER TRIBUNAL

For the reasons set out below the Tribunal dismisses the appeal.

REASONS FOR DECISION

1. On 12 June 2016 the Appellant, Mr , made a FOIA request to the Ministry of

Justice in the following terms:

Below is contained in correspondence dated 2 March 2016 from Grimsby Magistrates

Court in relation to an information (sic) served by email attachment.

I note that you have attached a document to your e-mail. I have been advised by a
member of the IT department not to open the attachment, due to the fact that an
attachment in a previous email contained a virus.

I would like disclosing (sic) all instances of computer virus issues recorded by the IT
department at Grimsby Magistrates court between December 2015 and March 2016
with a brief description of each threat.

2. The Ministry replied to the effect that it held the information asked for but that they
would not be providing it by reason of section 31(1)(a) of FOIA which provides that
information is exempt if its disclosure under the Act would, or would be likely to,
prejudice the prevention or detection of crime. Following an internal review
upholding that position Mr complained to the Information Commissioner
under section 50.

3. In the course of the Commissioners investigation and at her prompting, the Ministry
changed its position to one of reliance on section 31(3), which provides:

The duty to confirm or deny [whether information is held] does not arise if, or to the
extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice
any of the matters mentioned in [section 31(1)]

2
 Appeal No: EA/2016/0303

In her decision notice dated 28 November 2016 the Commissioner held that section
31(3) applied to Mr s request and that the public interest in maintaining the
exclusion of the duty to confirm or deny outweighed the public interest in disclosing
whether the Ministry held such information and that the Ministry were therefore
entitled not to confirm or deny holding such information.

4. Mr has appealed against the Commissioners decision notice. Both parties

consented to the appeal being resolved on the papers without a hearing. For reasons
set out in paragraph 8 below we are satisfied that we can properly resolve the issues
on the appeal without a hearing.

5. Mr appears to accept that section 31(3) applies to his request and we entirely
agree with the Commissioner that to confirm or deny whether the Ministry holds the
requested information could assist those who wish to attack its IT systems and would
thus be likely to prejudice the prevention of crime. However, Mr challenges
her conclusion that the public interest favours maintaining the exclusion of the duty to
confirm or deny. He says in his notice of appeal in effect that the Commissioner has
not taken into account the public interest in disclosure based on the fact that he
believes for good reason that he has been lied to by HMCTS staff and that disclosure
may show whether there are grounds for that belief.

6. It is not clear to us based on the material submitted by Mr what exactly he is

alleging against HMCTS or how disclosure of the information he seeks would support
his allegations. The Commissioners Response states at paragraph 17 that he is
arguing that the email of 2 March 2016 to which his request refers is inaccurate but it
does not indicate the nature of the inaccuracy the Commissioner understands him to
be complaining of. He has provided us with a long chronology dating back to
September 2012 concerning some litigation brought against him in the Magistrates
Court relating to council tax and with a number of letters to him from to HMCTS and
the Secretary of State and Lord Chancellors Humber Advisory Committee on

3
 Appeal No: EA/2016/0303

Justices of the Peace covering a similar period; we have considered these but we feel
none the wiser.

7. In the circumstances, on the material we have seen, we can see no basis for disturbing
the Commissioners conclusion that the public interest strongly favoured maintaining
the exclusion of the duty to confirm or deny provided by section 31(3) in this case.

8. We are conscious that if there had been a hearing attended by Mr , he may

have been able to explain his position for us in clearer terms. However we do not
consider it is appropriate to adjourn matters to arrange such a hearing or to seek
further information for the following reasons:

(1) he freely elected in his notice of appeal to have a paper hearing;

(2) it is reasonable to expect an Appellant in his position to appreciate the

need to set out clearly in writing what he was alleging against HMCTS and
to explain how the requested information was relevant and we have no
reason to believe him to be incapable of doing that;

(3) we cannot see on any basis that the case is of sufficient importance to
make it proportionate to incur the time and expense involved in arranging
a hearing or seeking further information by other means;

(4) in view of the very considerable public interest in protecting the court
system from the risk of cyber crime we think it most unlikely that further
explanations would lead to a different result.

9. We therefore unanimously uphold the decision of the Commissioner and dismiss the
appeal.

HH Judge Shanks
26 April 2017