IN THE MATTER OF AN APPEAL TO THE FIRST TIER TRIBUNAL

(INFORMATION RIGHTS)
UNDER SECTION 57 OF THE FREEDOM OF INFORMATION ACT 2000
EA/2013/0XXX
B E T W E E N:[APPELLANT]
Appellant
-andTHE INFORMATION COMMISSIONER
Respondent

RESPONSE BY THE INFORMATION COMMISSIONER

Introduction

1.

The Respondent (the Commissioner) acknowledges the Appellants

Notice of Appeal dated 13 December 2016 and serves this Response in
accordance with rule 23 of the Tribunal Procedure (First-tier Tribunal)
(General Regulatory Chamber) Rules 2009 (the 2009 Rules).

2.

The Appellant appeals under section 57 of the Freedom of Information Act

2000 (the Act) against the Commissioners decision notice dated 28
November 2016 with the reference number FS50636926.

3.

As required by rule 23(3) of the 2009 Rules, the Commissioner hereby

states that she opposes the Appellants appeal.

The Request

4.

On 12 June 2016, the Appellant contacted the Ministry of Justice (MoJ)

to make the following request via the what do they know website:

Below is contained in correspondence dated 2 March 2016

from Grimsby Magistrates court in relation to an information
served by email attachment.
I note that you have attached a document to
your email. 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 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

5.

On 21 June 2016, the MoJ confirmed that the requested information was
held but that it would not disclose the same in reliance on section 31(1)(a).
The MoJ went onto find that the public interest test favoured maintaining
the exemption.

6.

On 21 June 2016, the Appellant sought an internal review of the MoJs

refusal saying:
I would like the MoJ to consider whether the public interest is
better served by disclosing the information, knowing that a
person who has been dealing with the body believes that on the
balance of probabilities he is being lied to and the disclosure
may help provide a solution as to whether there are any
grounds for that belief

7.

On 5 July 2016, the MoJ issued its internal review response in which it
upheld its earlier reliance on section 31(1)(a).

8.

The Appellant complained to the Commissioner.

9.

During the course of the Commissioners investigation, the MoJ sought to

rely on section 31(3).

The Legal Framework

10.

Section 1(1) of the Act provides:

Any person making a request for information to a public
authority is entitled
(a) to be informed in writing by the public authority
whether it holds information of the description
specified in the request, and
(b) if that is the case, to have that information
communicated to him

11.

However, the Act also contains certain exemptions to the obligation under
section 1(1)(a) to confirm or deny whether the requested information is
held. The relevant exemption in this case is section 31(3) which states:
The duty to confirm or deny 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 subsection (1)

12.

Subsection (1) of section 31 states as follows:

Information which is not exempt information by virtue of
section 30 is exempt information if its disclosure under this Act
would, or would be likely to, prejudice
(a) the prevention or detection of crime..

13.

If the exemption to the obligation to confirm or deny whether the requested

information is held is engaged: the public authority then has to consider
whether the public interest test favours maintaining the exemption.

The Decision Notice

14.

On 28 November 2016, the Commissioner published her decision notice in

which she concluded that the MoJ was entitled to rely on section 31(3) to
neither confirm nor deny whether the requested information was held.

The Appellants Grounds of Appeal and the Commissioners Response

15.

The Commissioner understands that the Appellant does not seek to

challenge the finding that section 31(3) is engaged.

16.

Instead, the Commissioner understands the Appellant to challenge the

Commissioners finding that the public interest test favoured maintaining
the exemption.

In short, the Commissioner found that there was a

significant public interest in not publishing information which might

expose the MoJs operations to cyber-attacks and avoiding likely
prejudice to the MoJs ability to prevent or detect crime (see paragraphs
31 and 32 of the decision notice).
17.

Specifically, the Appellant argues that the MoJ should confirm or deny
whether the requested information is held as this would reveal whether or
not the MoJs email of 2 March 2016 accurately represented the position.
The Appellant goes onto argue that the relevant confirmation or denial
would not only further his own personal interest in this matter but also that:
There is in reality a much wider public interest if confirming or
denying provided evidence that HMCTS had lied. It is suspected for
very good reasons that HMCTS staff I have dealt with are very much
lacking in the honesty department and that should not be hidden from
the public

18.

It appears to the Commissioner that the Appellant has largely submitted his
request to pursue his own personal interest in this matter albeit the
Commissioner recognises that this private interest can be said to reflect a
wider public interest in ensuring that any public authority has met the
standards of conduct expected and required of those in public office.

However, the Commissioner remains of the view that the significant public
interest in maintaining the exemption (for the reasons outlined in paragraph
16 above) very much outweighs any private or public interest in relation to
matters of transparency and accountability.

Conclusion
19.

In light of the above, the Commissioner invites the Tribunal to uphold her
decision notice and dismiss this appeal.

20.

The Commissioner notes that the Appellant has requested a paper hearing
in this matter. The Commissioner agrees that this matter is capable of
disposal on the papers.

Dated this tenth day of January 2017

For and on behalf of the Respondent / Address for service:-

Helen Wrighton
Information Commissioners Office
Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF