MoJ wants test case to overturn Tribunal ruling
A civil servant has sent me the wrong electronic version of a document, thus inadvertently revealing that the government is searching for a test case to try to overturn an Information Tribunal ruling which it doesn't like.
This ruling deals with the question of whether information is 'held' by a public authority if it is in its files somewhere but has not been collated into one document. In the Johnson case, the Tribunal decided that the information is 'held' unless it requires a certain level of skill and judgment to retrieve it. That means that it can be asked for under freedom of information (although Mr Johnson didn't actually get what he wanted because it would have been too expensive to locate the material he was after).
This issue crops up surprisingly often, and the Campaign for Freedom of Information has drawn attention to cases where public bodies have claimed rather implausibly in response to an FOI request that they do not 'hold' any relevant information. Take for example the Leeds secondary school, which stated it held no information about complaints about bullying (even though Ofsted praised it for how it dealt with reports of bullying) - because the complaints were kept in individual pupil files and it had no specific coordinated log of them.
I have now received a letter from Revenue and Customs, responding to an FOI request, which contains a 'comment' in Word that has been left in, clearly in error. Referring to the Johnson ruling, the comment says that the Ministry of Justice is 'looking for another case to take to appeal to get this overturned'.
The Ministry of Justice would not confirm whether this is true (unsurprisingly), but says: 'In the case of Johnson v ICO and MOJ we made our position on the creation of data clear: The Act does not place a burden on public authorities to create information when responding to Freedom of Information requests.'
(As you can see from the letter, my FOI request was not a very well-informed one - I knew that HMRC could not reveal tax information about individuals, but did not realise this extended to companies - but at least I've learnt something through making the request).