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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kelway, R (on the application of) v The Upper Tribunal (Administrative Appeals Chamber) [2013] EWHC 2575 (Admin) (20 August 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/2575.html Cite as: [2013] EWHC 2575 (Admin)

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In the High Court of Justice
Queen's Bench Division
Administrative Court

Index

Section	Heading	Paragraphs
A	Introduction	1
B	Cart Claim – Procedural Introduction - CO/2904/2013	2-5
C	Application for Extension of Time to File Cart Claim	6-44
(1)	Introduction	11
(2)	Legal and procedural background	12-55
(3)	Time for filing DK's Cart claim	16-22
(4)	Factual background	22-35
(5)	Did the orders of 21 September 2012 and 21 January 2013 extend time?	36-38
(6)	Extension of time for filing judicial review claim	39-42
(7)	Conclusion – extension of time	43-44
D	Applicable Law	45-69
1.	Overview	45-47
2.	Directive 95/46/EC	48
3.	'Personal data'	49-59
3(1)	Statutory definition	49-50
3(2)	Guide to interpretation of 'personal data'	51-55
3(3)	Discussion of meaning of 'personal data'	56-58
3(4)	Conclusion – meaning of 'personal data'	59
4.	'Sensitive personal data'	60
5.	'Personal data' overlap between FOIA and DPA	61-69
5(1)	Potential overlap between FOIA and DPA	61-63
5(2)	How FOIA deals with the personal data overlap	64-66
5(3)	Discussion - overlap	67-68
5(4)	Conclusion - overlap	69
E	Factual Background	70
1.	DK's county court claim	70-72
2.	NP's investigation of DK's complaint	73-76
3.	DK's formal complaint to NP	77-78
4.	DK's IPCC appeal	79
5.	DK's FOIA requests for information from NP	80-82
6.	DK's complaint to the IC and the IC's decision	83-90
7.	DK's data subject request to NP	91-93
8.	DK's and NP's response to IC's decision	94
9.	DK's appeal to the IT – prior to hearing	95-108
10.	DK's appeal hearing in the IT	99-105
11.	The UT permission and review refusal decisions	106-108
12.	DK's Cart application	109
F	The Issues	110
G	The Issues Discussed	111-223
Issue (1)	The UT powers and remedies issue	111-117
Issue (2)	The UT refusal and set aside decisions issue	118-139
Issue (3)	DPA rather than FOIA issue	140-153
Issue (4)	ECHR article 6(1) issue	154-174
Issue (5)	DPA relevant filing system and recorded information issue	175-188
Issue (6)	DPA section 1(1) 'personal data' issue	189-196
Issue (7)	Third party DPA section 1(1) 'personal data' issue	197-203
Issue (8)	Joint personal data issue	204-205
Issue (9)	FOIA section 30(1) issue	206-207
Issue (10)	FOIA section 2(2)(b) issue	208-209
Issue (11)	DPA disclosure issue	210-211
Issue (12)	Realistic prospect of success issue	212-213
Issue (13)	Important point of principle or practice issue	214-215
Issue (14)	Other compelling reason issue	216-217
Issue (15)	Cart issue	218-219
Issue (16)	Costs decision issue	220-221
H	Conclusion – FOIA Cart Claim	223
I	Discovery and DPA application – Claim CO/3391/2008	224
1.	Introduction	224-226
2.	The application	227-23
3.	Application under section 7(9) of the DPA	233-237
4.	Application under CPR 54.16	238-256
5.	Applications under CPR 25.1(1)(j) and 31.17(3)	257
6.	Conclusion	258
J	Overall Conclusion	259

Synopsis

1. This synopsis does not form part of the judgment and is provided to assist the reader in providing a brief summary of the judgment.

2. The judgment is concerned with two issues:

(1) Whether the claimant Dr Kelway ("DK") was entitled to permission to apply for judicial review of two decisions of the UT refusing him permission to appeal and to set aside that refusal decision. In the judicial review, he sought an order to set aside those two decisions. The application arises in a complex field involving a decision of the FtT (Information Rights) relating to a Freedom of Information Act ("FIOA") request to Northumbria Police ("NP") to disclose a statement made by a district judge to the police who were investigating a complaint to NP by DK that that district judge had committed a criminal offence involving an allegation of interfering with the course of justice.

(2) Whether, if permission was refused, DK was entitled to an order from the Administrative Court for disclosure of that document by way of an appeal under the Data Protection Act ("DPA") from NP's refusal decision to disclose the document or under the Civil Procedure Rules ("CPR") by way of disclosure in the judicial review proceedings DK had sought to bring against the Independent Police Complaints Commission ("IPCC") or by way of non-party disclosure. In each basis of application, DK was seeking disclosure from NP.

(3) These applications were made even more complex by virtue of the extremely lengthy and tortuous proceedings that preceded the applications.

3. The case concerned three witness statements and certain redactions in other documents. The predominant purpose of DK's various claims and applications was to obtain disclosure of a particular witness statement of the district judge which had been provided to NP. The synopsis below refers to that statement alone but it applies to all other documents in issue in the case and applications as well.

4. The judgment addresses and decides the following matters:

(1) The time for filing a Cart claim in a claim which arose during the "transitional period" – being the period between the claim arising and the provisions in CPR 54.7A coming into effect – was 16 days after the decision of the UT refusing to set aside its earlier decision refusing permission to appeal – R(Sharma) v UT was followed on this point.

(2) The Cart claim was filed almost 5 months after the date it should have been filed. DK's contention that the court had extended time in two separate orders was rejected. Since no other reason, let alone no other good reason, had been provided for the delay, time for filing the claim was not extended. The unusual features of this case were such that the court decided to consider and decide the merits of the application despite dismissing it on time grounds.

1. The claim for permission arose out of DK's contentions that the UT judge had fundamentally misapplied the law in considering the application so that its refusal and setting aside decisions should be set aside and his application for permission should be reconsidered by the UT on the correct basis. This judgment accepts that the UT judge's decisions were both fundamentally flawed and cannot stand. In those circumstances, it is incumbent on the Administrative Court considering the Cart application to consider what decision the UT judge should have reached. If the Administrative Court considers that the UT should have concluded that permission should be granted, it should then address the Cart issue of whether to grant permission to apply for judicial review of the UT refusal decisions.
2. The fundamental issues that the IT had to decide were the following:

(1) Was the Information Commissioner correct in concluding that the witness statement of the district judge was the 'personal data' of both DK and, separately, of the district judge whose statement it was.

(2) If the statement was either or both the personal data of DK and the district judge, was the document also disclosable under the FOIA and, if it was, should it have been disclosed under that Act by NP.

(3) If the document was not disclosable under the FOIA, how could DK challenge NP's refusal to disclose the document under the FOIA and under the DPA given that the FOIA route for challenging a refusal decision of a public authority is by way of an appeal to the Information Commissioner ("IC") followed by a second appeal to the FtT (Information Rights) followed by, if permitted, a third appeal to the UT whereas a challenge to a DPA refusal decision is by way of an application to the court (High Court or county court at the applicant's discretion) with a second appeal, with permission, to the Court of Appeal.

(4) Was the decision of the FtT based on an error of law.

3. Two challenges were made to that decision.

(1) Firstly a procedural decision; and

(2) Secondly a legal challenge based on the correct interpretation of 'personal data' where that expression appears in the DPA and, by incorporation of the DPA definition, into the FOIA.

8. The procedural challenge was against the closed procedure adopted by the FtT which prevented DK having access to the document he was seeking, prevented him from attending that part of the hearing during which the FtT heard submissions on whether it fell for disclosure from counsel acting for the IC and NP in the absence of DK and the FtT giving its reasons for dismissing his appeal in an open decision with a closed decision that discussed the particular document. The open but not the closed decision was provided to DK. As a further matter, DK challenged the UT refusal decisions in part because the UT judge did not consider the closed decision of the FtT and did not inspect the document under challenge. Furthermore, the Administrative Court was not supplied with copies of either the closed decision or the document under challenge.

9. The legal challenge to the meaning of 'personal data' relied mainly on the definition allegedly provided to that phrase by the Court of Appeal in the Durrant case which it was contended was definitive and which provided a narrow definition which was applicable in this case.

10. This complex series of issues was considered sequentially. In doing so, it could be seen that DK had no reasonable prospects of succeeding in a notional appeal to the UT against the decision of the FtT. This decision was based on the following findings:

(1) The UT's jurisdiction in an appeal from the FtT (Information Rights) was unusual since the FtT had a wider jurisdiction than other FtTs in that it was entitled to review the IC's findings of fact, exercise the IC's exercise of discretion decision afresh and amend the IC's refusal notice. In consequence, the UT's jurisdiction, although limited to issues of law, was entitled to review the FtT's exercise of its jurisdiction to find facts, exercise discretion and amend a refusal notice on Wednesbury grounds.

(2) The FtT's powers to hold closed hearings and issue closed decisions were potentially capable of infringing a litigant's article 6 rights as adumbrated in recent Supreme Court and European Court of Human Rights decisions and, in an appropriate case, will need to be reconsidered as potentially not being compatible with those decisions. However, sufficient is known about the contents of the district judge's statement and as to the background that DK was not unduly or unfairly hampered in presenting his case before the IT and neither the UT nor the Administrative Court were hampered in considering the lawfulness of the IT's decision despite not seeing the closed decision or the document in issue.

(3) The IT was correct, and its decision not challengeable, that the document constituted both DK's personal data and, additionally, the district judge's personal data.

(4) In those circumstances, NP was incorrect in considering the document under the FOIA but it was no longer material to consider whether the NP's decision that the document was nonetheless not disclosable under the FOIA was correct.

(5) The IC was correct in finding that NP, as the public authority holding the document, had the exclusive obligation to determine whether the application for disclosure should be dealt with under the DPA or the FOIA and that DK's decision should be determined under the DPA.

(6) The IC was also correct in finding that the document was personal data of both parties and was not disclosable.

(7) The FtT, correctly applying the statutory definition of personal data to the documents in question, including the applicable EC directive, the applicable guidance and the Durrant decision and the applicable guidance and with its knowledge of the contents of the document and the complex factual background, decided that the IC was correct in concluding that the document should be considered only under the DPA and was not disclosable in consequence under the FOIA.

(8) Because the witness statement was the personal data of the district judge, it was not disclosable under the FOIA. Similarly, it was not disclosable under the FOIA for the separate, discrete but cumulative reason that it was DK's personal data.

(9) The witness statement was also not disclosable under the DPA for the separate, discrete and cumulative reasons that it was both the personal data of the district judge and of DK.

11. The witness statement was not disclosable under the DPA because it was the personal data of both the district judge and DK, because DK had not obtained the permission of the district judge that NP should disclose it and because it was exempt from disclosure on three separate but cumulative grounds.

12. The document was also not disclosable under the DPA or under the CPRs since it was not necessary in the interests of justice that it should be disclosed and because its disclosure was prohibited under the terms of the DPA.

HH Judge Anthony Thornton QC:

A. Introduction

4. General. These two applications are made by the claimant, Dr Peter Kelway ("DK"). Each is made in separate judicial review proceedings, they are closely connected and I have considered and decided them together. Each seeks the disclosure of three statements made to police officers investigating a complaint that a district judge had committed a serious criminal offence by arranging for a tape on which was recorded court proceedings to be tampered with. The principal basis for claiming discovery is by way of an application under the Freedom of Information Act 2000 ("FOIA") or, if that is unsuccessful, by way of an application for disclosure of personal data under the Data Protection Act 1998 ("DPA"). Finally, they are claimed by way of disclosure by Northumbria Police ("NP") in the relevant judicial review claim or by way of non-party disclosure in the same claim. I will deal first with the FOIA claim which is the subject-matter of the first judicial review claim and then with the disclosure applications which are the subject-matter of the applications in the second judicial review claim.

B. Procedural Introduction - Cart Claim – CO/2904/2013

5. This application. In this application, the DK seeks permission to apply for a judicial review of a decision of the Upper Tribunal (Administrative Appeals Chamber) (UT) refusing him permission to appeal a decision of the Information Tribunal ("IT"). DK filed the judicial review claim form on 11 March 2013 seeking to set aside the refusal decision that had been sent out on or about 4 September 2012 and of the setting aside refusing to set aside the original decision that had been sent out on 1 October 2012. The decision of the UT had refused DK permission to appeal two decisions of the Information Tribunal (IT) dated 14 April 2009 (substantive decision) and 15 June 2009 (costs decision). The substantive decision of the IT had dismissed DK's appeal from a decision of the Information Commissioner (IC) dated 17 March 2008 that had confirmed the decision of Northumbria Police (NP) dated 24 November 2006 and 2 March 2008 refusing DK's requests dated 23 November and 4 December 2006 for specified documents and information under the FOIA.
6. Lodging the appeal. The UT Rules require a claimant who seeks to appeal a decision of a First-tier Tribunal ("FtT") decision to the UT first to seek permission to appeal from the FtT and only to seek permission from the UT if the FtT has refused permission. The IT was not part of the Tribunal system at the time that it made its original substantive decision but it became one when it was moved into the Tribunal system and became part of the First-tier Tribunal (General Regulatory Chamber) on 18 January 2010. It is now known as the FtT (Information Rights). This FtT has identical jurisdiction and, in relevant respects, identical practice and procedure to that that the IT had before its transfer into the Tribunals system in January 2009 and I will refer to both the IT and the FtT (Information Rights) as the "IT" in this judgment.
7. DK did not apply to the IT for permission to appeal since it was not necessary to apply to the IT for permission in 2009 when the substantive decision was promulgated. At that time, an appeal from the IT lay to the Administrative Court exercising appellate functions and it was necessary for him to apply to, and obtain from, the Administrative Court permission to appeal. Initially, DK mistakenly thought that his appeal from the IT lay to the Court of Appeal and he lodged a notice of appeal with the Court of Appeal within a month of the substantive decision, being the then applicable time limit for filing such an appeal in the Administrative Court. This notice of appeal was transferred to the Administrative Court and then filed with that Court on 4 March 2010. By then, the jurisdiction of the IT had been transferred to the FtT (General Regulatory Chamber) and outstanding applications for permission to appeal from the IT and the appeals themselves were also transferred automatically from the Administrative Court to the UT.
8. The Administrative Court did not transfer the file for this appeal to the UT until April 2012. Since the appeal had been transferred automatically to the UT, it was not necessary for the file to be transferred but its non-transfer appears to have held up the processing by the UT of DK's application for permission to appeal. The file was only transferred as a result of my intervention which itself followed an email from DK dated 1 February 2012 drawing to my attention his difficulty in having his permission to appeal application heard by the UT. I investigated the apparent lack of the transfer of the court file from the Administrative Court to the UT and, in the light of those difficulties, wrote to DK on 28 February 2012 as follows:

"I have located the file in your appeals against the Information Tribunal decisions in your case and find that the position is as follows:

1. Your appeals should have been filed with the Administrative Court within 28 days of the two decisions. The substantive appeal was lodged with the Court of Appeal on 14 May 2009 which was 2 days out of time since the substantive decision was issued on 14 April 2009. There is nothing on the Administrative Court file that amounts to a notice of appeal in the costs decision so nothing below relates to this possible second appeal if there ever was one.

2. The lodging of the notice of appeal with the Court of Appeal was an error since the relevant appeal court at that time was the Administrative Court (which had an appellate function from various tribunals – nothing to do with judicial review – so that lodging did not count as a filing of the appeal. It is not clear when the notice of appeal reached the Administrative Court office but there was delay in filing the appeal as a result of your fees remission application and uncertainties of the effect (if any) of the ECRO then in force. The notice of appeal was only filed on 4 March 2010. I express no view as to whether that filing amounted to an implied extension of time from 12 April 2009 until 4 March 2010.

3. The notice of appeal was, and remains, defective since it does not contain any grounds – the part of the claim form, usually an attachment, which sets out the legal basis of the appeal. This is different from the skeleton argument which comes later in the process. I express no view as to whether that defect can still be remedied by belated service of a grounds document.

4. The law changed significantly on 18 January 2010. On that date, the Information Tribunal ceased to exist and was replaced by the First Tier Tribunal (Information Rights) and any appeal no longer lay to the Administrative Court but instead went to the Upper Tribunal (Administrative Appeals Chamber). By virtue of the Transfer of Tribunal Functions Order 2010 (SI12010/32) the appeal was transferred automatically to that Upper Tribunal Chamber on 18 January 2010. I express no opinion as to whether or not the filing of the notice of appeal in the Administrative Court on 4 March 2010 was effective to file the appeal with the Upper Tribunal on that date.

5. The ICO wrote to the Administrative Court on 21 April 2010, with a copy to you, correctly pointing out that the Administrative Court did not have jurisdiction and that the proposed appeal should be removed from the Administrative Court warned list and that any appeal should be heard by the Upper Tribunal. The letter also pointed out that, in any event, the notice of appeal was filed very much out of time and was deficient in not setting out grounds of appeal.

6. Nothing has been done since that letter was received by the Administrative Court save that your letter dated 14 July 2010 is on file. This asks, incorrectly given the above, that your appeal should be listed in the Administrative Court warned list. The effect of that Order was that the appeal, in whatever state it was in and at whatever stage in the appeal process it had reached, was automatically transferred to the Upper Tribunal on 18 January 2010.

7. It is for you to decide whether you wish to attempt to activate this appeal given that three years have passed since the decision you wish to appeal was published. If you do, you should write to the Administrative Court quoting the reference CO/3349/2010^[1] C/O Lyn Knapman, Deputy Master, Administrative Court, asking her to transfer the file to the Upper Tribunal (Administrative Appeals Chamber) and for that file to be placed before the Senior District judge of that Chamber with a request for that District judge to issue directions. I would suggest that, in the meantime, if you wish the appeal to be re-activated, you should draft your proposed grounds of appeal and a witness statement setting out what, from your point of view, has happened from April 2009 until the present and send this to the Upper Tribunal to be placed before the Senior District judge with the file CO/3349/2010 which you have asked to be transferred by Deputy Master Knapman to the Upper Tribunal since it concerns a proposed appeal from the Information Tribunal. It will then be for the Senior District judge to decide whether the appeal can go forward or should be struck out … As for the costs appeal (if any), you will have to bring this to the attention of the Upper Tribunal yourself if there is one and you wish this to proceed. …. ."

9. Extension of time by the UT. DK did as was suggested and the file was transferred to the UT. DK applied to the UT for permission to extend the time for lodging his notices of appeal from the date that they should have been filed with the Administrative Court, namely within 28 days of, respectively, the 14 April 2009 and 15 June 2009, until the date that the appeals were transferred to and lodged with the UT in April 2012. DK filed two lengthy witness statements with the UT explaining the delay that had occurred and a detailed witness statement setting out his grounds of appeal and his submissions in support of those grounds. An oral hearing took place to consider whether time should be extended for both the substantive and costs appeals and permission to appeal should be granted. These documents were before the UT judge at the oral hearing that that judge had directed should take place. The UT has the power to deal with applications to extend time and for permission to appeal on paper and it is only in an exceptional case that these applications are dealt with orally. The UT judge assigned to the applications took the view that the exceptional features of this case arising from the lengthy delays that had occurred, the unusual and difficult issues of law that had to be considered and the fact that DK was a litigant in person warranted an oral hearing.
10. The UT judge, at the outset of this hearing on 3 September 2012, ordered that the appeal should be admitted and the extension of time claimed should be granted under paragraph 5(3)(a) of the UT Rules. He then heard DK's application for permission to appeal at a two-hour hearing, reserved his decision and sent out a fully reasoned refusal decision on 4 September 2012. DK then applied to the UT to set aside the refusal decision and this application was refused on 1 October 2013.
11. CPR 54.7A. The claim had been filed after CPR 54.7A had taken effect. When CPR 54.7A(8) and CPR 54.12 are read together, it is clear that an application for permission to apply for judicial review of a refusal by the UT to permit a claimant to appeal a decision of the FtT (including a residual appeal from the IT that has been transferred to the UT) will be dealt with on paper unless the court orders that the application should be dealt with orally. Such applications, unlike all other judicial review permission applications^[2], may not be renewed at an oral hearing but, in exceptional circumstances, the court may direct that the sole permission application allowed to a claimant may be determined at an hearing and, if an order for a hearing is made, the defendant and the interested party must be given notice of the hearing and may be represented and heard at that hearing if they have lodged acknowledgements of service.
12. The hearing of this application. Because this application is closely related to three other judicial review claims awaiting a renewal hearing, in the light of the difficult procedural history of this claim and those other claims and to assist in the effective case management of all four judicial reviews, I issued a directions order dated 22 March 2013 that included a direction that this application should be dealt with at the same hearing that all the applications in the other three judicial review claims would be dealt with. DK was advised to give notice to the defendant and the interested party of that direction. The UT served an acknowledgement of service which indicated that it relied on the two refusal decisions of UTJ Jacobs and did not propose to take any part in the proceedings and the NP did not serve one. In those circumstances, the hearing was listed for 24 May 2013 to be heard with 5 other applications in the other three judicial review claims.
13. However, DK did not appear at that hearing having given notice to the court in an emailed letter on 23 May 2013 that he was not intending to appear. No formal application for an adjournment was issued and the letter did not expressly seek an adjournment albeit that it invited me to consider adjourning on my own motion all DK's judicial review applications that had been listed for that day. When the applications were called on, and in the absence of DK at the pre-arranged video link which he has always been provided with in the many previous hearings in his judicial reviews, I formally refused to adjourn any of the applications and gave a lengthy extempore judgment setting out my reasons why I would decide each of them in reserved judgments which I would hand down at a later date. In relation to this Cart application, as an additional reason for taking that course, it would ordinarily have been decided on paper, all the necessary documents had been lodged with the court and I was, in reality, merely reverting to the ordinary procedure for deciding the application.

C. Application for an Extension of time to File Cart Claim

(1) Introduction

14. I must first address the delay that has occurred in filing this judicial review claim in the Administrative Court. DK's claim form was filed, on any view, very late. DK contends that I have previously granted an extension of time. I must therefore consider whether one is still needed and, if so, whether it should be granted. These issues require me to consider the legislative and factual context of this particular application.

(2) Legal and procedural background

15. A decision of the UT refusing permission to appeal a decision of an FtT (including an appeal from the IT which has been transferred from the Administrative Court to the UT) may not be appealed to the Court of Appeal^[3]. In those circumstances, although the UT is a court of record, it is still a court or tribunal whose decisions are susceptible to judicial review if they are not capable of being appealed or reviewed in any other way. The basis on which an UT permission refusal decision may be reviewed on judicial review has been settled by the decision of the Supreme Court in Cart v The Upper Tribunal^[4] and such applications are now usually referred to as "Cart" applications.
16. The procedure for bringing such an application is now governed by CPR 54.7A which modified the procedure for other judicial reviews set out in CPR 54 and which took effect on 1 October 2012. This modified procedure applies to all Cart applications filed in the court on or after that date even if the original UT refusal decision being challenged had been sent out prior to 1 October 2012. In this case, there are three critical dates to consider, these are the date that the UT decision was sent out to DK, the date that the setting aside decision was sent out and the date that DK's application was filed with the Administrative Court. These dates were, respectively, 4 September 2012, 1 October 2012 and 11 March 2013.
17. CPR 54.7A(2) provides that a Cart claim must be filed within 16 days after the date the UT decision was sent out to the claimant by the UT. No exception to this strict time-limit is made for UT refusal decisions which are subject to an application to review the decision by the claimant since an adverse review decision of the UT judge is not itself susceptible to any further appeal or review so that, if a review is sought, the claimant should still lodge the claim within the 16-day timescale. This rule replaced, for Cart claims, CPR 54.5(1) which provides that a judicial review claim should be filed promptly and, in any event, no later than 3 months after the grounds for making the claim (i.e. in this case when the UT refusal decision was promulgated and sent out) first arise. The timescale was shortened because of the Supreme Court, in the judgments in Cart^[5] that gave effect to the views of Sir Andrew Leggatt whose report recommending the setting up of the Tribunal system^[6] had advised that there should be a severely circumscribed ability to mount an appeal from the FtT and that that appeal process should be dealt with and concluded speedily.
18. The Cart judgments and CPR 54.7A made it clear that a successful challenge to an UT refusal decision should only be permitted if there is an arguable case which has reasonable prospects of success that both the decision of the UT refusing permission to appeal and the decision of the FtT (in this case the IT) are wrong in law and that the claim raises an important point of principle or practice or that there is some other compelling reason for the Upper Tribunal to hear the claim. The Supreme Court also advised that the judicial review process should be streamlined for Cart appeals in ways that the Rules Committee should identify. That is why CPR 54.7A(3) was introduced. The new procedure did not contain any transitional provisions that, if they had been provided, would have enabled existing appeals and applications for permission to appeal already in being on 1 October 2012 to remain governed by the old procedure.

(3) Time for filing DK's Cart claim

19. On a literal construction of CPR 54.7A, DK's judicial review claim should have been lodged on or before 21 September 2012. This provides a somewhat difficult position for those such as DK who were subject to a refusal decision sent out whilst the old CPR 54.5(1) provision was applicable but which became subject to the new CPR 54A with its 16-day timescale which would run out prior to the new rule coming into force and within the remaining time for filing a claim under the old CPR 54.5(1). This difficulty was considered by Collins J in R(Sharma) v Upper Tribunal^[7]. That case was similar in that the decision of the UT was sent out prior to 1 October 2011 and the claim was filed more than 16 days later and on a date after 1 October 2011. Collins J held that there would be an obvious injustice in holding the claimant to the 16-day period but that injustice would be remedied by granting a 16-day period of grace starting on 1 October 2011 within which the claimant could file a claim of this kind. However, he also stated that if a claim was filed after the 16-day period – that is on or after 18 October 2011, an explanation would be needed as to why there was a delay.
20. DK's application is also subject to a further consideration. On receipt of the UT's decision, he immediately exercised his entitlement to apply to the UT to set aside the refusal decision. This entitlement arises pursuant to Rule 43 of the Upper Tribunal Rules and the application must be made and can only be made pursuant to one of the limited grounds set out in that Rule. DK relied on the ground that there had been a procedural irregularity in the UT permission application proceedings. This application was dismissed on the ground that there had been no procedural irregularity but it is clear from the refusal decision of UTJ Jacob that he accepted that the application was validly made and raised a ground of procedural irregularity albeit that that ground was not made out.
21. CPR 54.7A(3) does not address the situation that arises when an UT refusal decision is subject to an in-time application for setting aside. In particular, the Rule does not address the question of whether time for filing a claim form seeking judicial review of a refusal decision of a permission application is postponed until a setting aside refusal decision has been sent out or whether time still starts to run from the date of the original decision being sent out.
22. These difficulties arising out of the application of CPR 54.7A must be addressed by the application of the overriding objective as required by CPR 1.1. In other words, this provision, as with all other provisions of the CPR, is to be applied so as to ensure that the case is dealt with expeditiously and fairly so as to allot to the case an appropriate share of the court's resources. Furthermore, the timescale within which a judicial review claim must be lodged is subject to an extension of time if applied for under CPR 3.1(2)(a) which must be considered by taking appropriate account of all relevant circumstances including the 9 factors listed in CPR 3.9(1). Furthermore, CPR 3.9(2) provides that an extension of time application must be supported by a witness statement which should identify all the facts and matters relied on.
23. CPR 54.7A cannot sensibly be read so as to require someone in DK's position to comply with the new 16-day filing rule before it took effect. Equally, it would be both unfair and a potential misuse of the court's resources to require someone in DK's position to file the claim form before the refusal of his application to the UT to set aside its initial refusal decision has been sent out.
24. CPR 54.7A can sensibly be read so that the requirement that:

"(1) This rule applies where an application is made, following refusal by the Upper Tribunal of permission to appeal against a decision of the First Tier Tribunal, for judicial review … ."

is read so that the words "following a refusal" refer to the refusal decision of an in-time bona fide application to set aside a permission refusal decision. The potential difficulty of that construction is that a claimant has one month from the date of the sending out of the initial refusal decision in which to apply for a setting aside. The answer to that difficulty is that in the rare case where a valid setting aside application is made (as opposed to an invalid application that is made on grounds other than those prescribed by Rule 43 of the UT Rules), time for filing a judicial review claim should be postponed until the UT sends to the claimant the setting aside refusal decision.

25. By chance, the UT setting aside refusal decision was sent out on 1 October 2012 which was the day that CPR 54.7A took effect. DK should therefore have filed this claim form on or before 17 October 2012, being 16 days after the UT setting aside refusal decision was sent out by the UT. However, DK filed his claim form on 11 March 2013, being 20 weeks and 6 days after 17 October 2012. He did not apply for an extension of time in the claim for as required by CPR 54 nor did he serve a witness statement setting out the grounds relied on for seeking an extension of time. The court in a directions order dated 11 March 2013 pointed out the 16-day timescale for filing a Cart claim and the case lawyer subsequently pointed out to DK that he needed to apply for an extension of time and serve evidence in support of that application. DK, somewhat belatedly, served his sixth witness statement in the UT proceedings dated 27 April 2013 in which he contended that time had already been extended so that there was no issue for the Court to decide in respect of the claim being filed out of time. He has not, therefore, strictly speaking, applied for an extension of time but I will, nonetheless, treat his witness statement as containing an application even though it also contends that he does not need one.

(4) Factual background

26. In order to resolve whether DK needs an extension of time and, if so, whether he should get one, it is necessary first to consider the relevant factual background to this period of apparent delay. In addition to the Cart claim, DH has three other judicial reviews awaiting a decision on his renewed applications for permission. All these judicial reviews arose out of a protracted case that DK started in the 12 August 1998 in the Gateshead County Court and which was only finally brought to an end by an order dated 13 June 2008. In that lengthy period, 110 orders were issued by the various courts involved in interminable procedural wrangling initiated by DK. In all, there were 62 separate hearings each of which yielded a perfected order and a further 48 orders were issued without a hearing. These hearings were conducted by at least 30 different judges at different levels of the court hierarchy, namely the Court of appeal and High Court and the County Court at both circuit judge and district judge levels. Amongst many other complaints about many of the district judges and court staff involved in these hearings was a two-fold complaint that a district judge had reneged on an assurance that he would not issue a particular order which he had no jurisdiction to issue and had subsequently tampered with the tape recording his proceedings so as to erase from it the recording of him giving that assurance. That district judge's statement and statements from two others who were present in the district judge's court when the critical assurance was said to have been given formed the principal subject-matter of DK's applications for disclosure under the FOIA to the Newcastle Police ("NP") and his appeals to the Information Commissioner ("IC"), the IT and the UT.
27. DK threatened to initiate judicial review claims on a number of occasions between 2003 and 2008 as a means of persuading various courts to adjourn proceedings which otherwise would not have been adjourned. By 2008, he was fully aware that judicial review claims are solely concerned with allegedly unlawful decisions of public bodies and that there is a very short time limit that is allowed within which a judicial claim may be filed with the Administrative Court following the making of the decision that is challenged.
28. DK finally filed his first judicial review claim in the Administrative Court on 9 April 2008. This claim challenged a decision of the IPCC dated 20 December 2007 that confirmed its earlier decision dated 20 December 2007 not to investigate DK's complaints about the conduct of the investigating police officer into his complaint to the police that the district judge had criminally tampered with the tape of his hearing. DK stated in the claim form that although he considered that his claim arose on 14 March 2008 when he received answers from the IPCC to his complaints about the decision, he accepted that the claim may have arisen on 20 December 2007. The refusing district judge's decision was that an extension should not be granted since the latest date that the claim should have been filed was immediately following the receipt of the IPCC's answers on 14 March 2008 but it was actually filed on 9 April some over 3 weeks later than it could and should have been and some 2 weeks later than the expiry of the 3-month long stop period. Permission was refused on the dual grounds that his claim was filed out of time and no extension should be granted and it lacked sufficient merit.
29. DK filed his second judicial review claim in the Administrative Court on 15 May 2008. This claim challenged decisions of the IPCC dated 7 December 2007 and 31 March 2008. The first decision dismissed his appeal from NP's dismissal of a complaint involving the direction and control of a police officer which fell outside the complaints procedure. The second decision granted NP a dispensation from investigating a second complaint against NP because that complaint was a repetition of an earlier complaint. The substance of DK's complaints was to be found in his first complaint and his judicial review was filed more than 2 months out of time. Permission was refused on the grounds of the claims intrinsic lack of merits but could as well have been refused on the grounds that the judicial review was filed out of time.
30. DK filed his third judicial review in the Administrative Court on 7 November 2008. This claim was brought against Newcastle Combined Court (NCC) and, on analysis, it challenged two critical decisions of different circuit judges refusing permission to appeal in decisions dated 18 June 2003 and 13 June 2008. The principle decision being challenged was the first of these two decisions. DK had threatened various judges in the NCC on several occasions since 2004 that he would be filing a judicial review claim but the claim was only filed about 4½ years after the first decision and nearly 5 months after the second decision being challenged had been made. In an attempt to circumvent the delay that had occurred, DK alleged that his challenge was to the second decision dated 13 June 2008. Even if that contention was correct, the claim should have been filed within about 1 month of the decision but was in fact filed 4 months out of time or, if the 3-month longstop time limit was appropriate, over 2 months out of time. Permission was refused on the dual grounds of delayed filing and the lack of any merits.
31. DK made renewed applications for permission in each of the three claims. If he was still under any misapprehension about the need to file judicial review claims promptly and in accordance with the provisions of CPR 54, he would have learnt that his views were mistaken on receiving an order dated 19 August 2010 which included a provisional decision that I had drafted in relation to DK's renewed applications. This explained to DK the strict nature of the judicial review time limit provision that required a claim to be filed as soon as reasonably practicable after the decision complained of and in any event no later than 3 months later unless there are exceptional circumstances which should be spelt out in the accompanying application for an extension of time. On those grounds, the provisional decision was to the effect that all three judicial review claims were filed out of time. In consequence, the provision decision was to the effect that that permission should be refused in all three claims on the basis of delay as well as because none of the three claims had any prospect of success.
32. Once permission to apply for judicial reviews had been refused on paper in each of the three judicial review claims, DK turned his attention to his attempts to obtain copies of material documents gathered by the NP investigations into his complaint about the district judge. The principle documents that he was seeking were copies of the statement the district judge made to the police officer investigating the complaint against him and the statements of two representatives of the defendant's solicitors who had been present at the original hearing. DK also set to work to expand his judicial review claim against the NCC to include a general complaint that there had been systematic and general unfairness by the court system that had deprived him of fair hearings throughout the entirety of the ten-year period that his claim was being pursued. DK succeeded in having his renewed permission hearings in his three claims delayed until 10 March 2010. At that hearing, he sought an adjournment on the grounds that he should first be allowed to obtain a copy of the district judge's statement from NP. He was allowed an adjournment and principally because the restored hearing was directed to await the conclusion of his FOIA disclosure proceedings, the hearing was not restored.
33. On 21 May 2012, I informed DK that I would not conclude the renewed applications until the UT had dealt with his appeal on condition that DK kept the court informed with regular updates of the progress of his UT appeal and dealt promptly with each step he had to take in the appeal process. Soon afterwards, DK informed the court that his applications for an extension of time and for permission to appeal would be heard on 3 September 2012. I responded by informing DK that I would until 30 September 2012 to conclude the renewed permission applications. On 17 September 2012, DK informed me that the UT judge had refused him permission but he was about to apply for that decision to be set aside and that he had until 5 October 2012 to "appeal that order". He also indicated that he would be applying for a disclosure order in the judicial review against the IPCC for disclosure of the documents he was also seeking in the FOIA proceedings. On 19 September 2012, the court informed DK that if he wanted a further adjournment, he should issue a formal application in the Administrative Court which, if issued, would deal with in a telephone hearing.
34. The court then issued a directions order issued dated 20 September 2012 which included this direction:

"2. The claimant is to serve on the UT any application for a review of UT judge Jacob's decision received by the claimant on 8 September 2012, if such has not already been served, within the timescale provided for in the UT rules. The claimant is to notify the Administrative Court and, separately, District judge Thornton, by Monday 1 October 2012 whether or not the UT has reviewed the said decision and, if so, what fresh decision was made.

4. If the claimant seeks to apply for judicial review of the UT's decision refusing permission and any refusal to review that decision, he must issue a fresh judicial review application setting out the grounds on which he wishes to rely. That application must be issued against the UT and, if it is so issued, must be issued by 19 October 2012. It if is issued, the consideration of whether permission should be granted is to be heard by Judge Thornton QC at an oral hearing to be heard at the same time as the claimant's application for discovery. The claim form is to be served on the UT by the claimant."

35. DK made a setting aside application to the UC on 21 September 2012 and this was considered and refused by UTJ Jacob and sent out to DK on 1 October 2012. On 1 October 2012, I informed DK that I had extended time until 20 October 2012 or the conclusion of the application to review and set aside proceedings, whichever was the later.
36. DK did not file a fresh judicial review claim form as directed and had still not filed one when he sent an email to the court dated 13 December 2012 which referred to his email dated 20 October 2012. This email was not received by the court and, indeed, does not appear to have been sent since it does not appear in the chain of emails that DK always sent to the court. In the email, DK informed the court that he had failed to persuade the UT to set aside its decision refusing him permission and invited the court "to revise my draft (sic) order in the light of this situation". He also asked the court to order that a copy of the transcript of the hearing before the UT should be made available to him at public expense. DK did not issue an application seeking to vary the order dated 20 September 2012. The court issued a further order dated 21 January 2013 refusing DK'S request for a transcript at public expense. The order also directed that the relevant date in paragraphs 3 and 4 of the order of 20 September 2012 should be changed to Wednesday 13 February 2013, thus requiring the claim form to be issued by that new date. This direction did not constitute an extension of time within which to file the claim form. No extension of time had been applied for and, in any event, an extension of time can only be sought and granted once the judicial review claim has been issued. CPR 54 requires the claimant in a judicial review, if an extension of time is sought, to apply for the extension in section 7 of the claim form accompanied by reasons for the delay set out in a supporting witness statement.
37. DK finally filed a claim form by sending 3 copies of the form without a fee or a fee remission application to the court. The documents were received by the court on 4 March 2013 but these were immediately returned to DK because he had failed to apply for a fee remission, an obvious error given the number of applications and claim forms that he had issued previously which had all been accompanied by a fee remission application. DK returned the claim form with the appropriate fee remission application and this was received and filed by the court on 11 March 2013. Section 7 of the claim form was filed in with the statement "No other applications are being made".
38. DK, when informed by the case lawyer that he needed to apply for an extension of time and support that application with a witness statement setting out his reasons for the delay that he was relying on in support of his application, submitted a short witness statement dated 27 April 2013 which in summary stated that:

(1) The UT had made no reference to the new provision in the CPR in the information it sent him with the decision refusing him permission to appeal.

(2) Notwithstanding the 16-day time limit in the new provision, the court could apply the overriding objective in the interests of justice take account of submissions made and override specific rules.

(3) Directions were issued on 20 September 2012 ordering that any judicial review application of the UT's refusal decision must be issued by 19 October 2012 and revised directions were issued on 21 January ordering that any such application must be issued by 13 February 2012.

(4) DK followed the later directions and issued the application for judicial review before the deadline imposed.

He concluded with this statement:

"The claimant therefore submits that the court has already considered the matter of the timescale over which the application for judicial review must be issued and that he has met the requirements set. The claimant submits that there is no issue for the court to decide upon in respect of the application being made out of time."

(5) Did the orders of 20 September 2012 and 21 January 2013 extended time?

39. The orders issued on 20 September 2012 and 21 January 2013 must be read in the context of their procedural background. These orders were issued in the three existing judicial review claims since this Cart claim had not yet been issued. Those orders were concerned with the case management of the renewed permission applications in the three existing judicial review claims and, in particular, with the finalisation and service on the court of the final written submissions in those three existing claims. The court had directed that those steps could be delayed until the conclusion of the UT appeal proceedings in the unrelated FOIA application. The decision to delay the renewed permission application decisions was reflected in the order of 10 February 2012 and the emailed directions the court sent DK dated 28 February 2012, 28 March 2012, 10 May 2012 and 21 May 2012. It is clear from those emails that the court was determined to reach finality in the renewed applications as soon as possible and was only prepared to delay reaching and handing down a decision until the first possible moment after the UT's refusal of the permission application or, if permission was granted, the determination by the UT of the appeal.
40. The order of 20 September 2012 was issued in the light of the information that DK had supplied to the court that the UT had refused permission but that DK was intending to apply to set aside that decision and also to apply for judicial review of the refusal decision. I was of course aware that any judicial review claim would be subject to the Cart procedure and made a case management decision in the three then current judicial reviews in the interests of speed and efficiency that I would assign the inevitable permission application to myself, direct an oral hearing for that application, direct that the claim should be issued by 19 October 2012 and that all applications in what would then be DK's four judicial reviews would be heard and concluded at the same oral hearing to be fixed as soon as possible thereafter.
41. I could not have extended time for filing a judicial review claim by that order since the claim had not yet been filed and, in any event, could not then have been issued since it was still subject to a setting aside application. All the court was doing was instructing DK that the permission applications would be concluded without awaiting a Cart claim unless the Cart claim was issued by the stipulated dates. However, once it was issued, any extension of time application would then have to be dealt with. It follows that, given the factual background and the relevant orders, the court was not concerned with whether time for the filing of the cart claim should be extended but with whether the handing down of judgment in the renewed permission applications in the three other claims should be further delayed.

(6) Extension of time for filing the judicial review claim

42. DK has elected not to put forward any reasons for the late filing of the claim form save that his time for filing was extended, or could be taken to have been extended, by the two orders made in September 2012 and January 2013. If DK could sustain this contention, it would provide an irrefutable reason for extending time from the last day for filing provided for in the September 2012 order, which was 19 October 2012. However, for the reasons already given, the two orders do not provide any, let alone any satisfactory, basis for extending time by any further amount.
43. I will consider the possible reasons for the delay that might have been put forward. These would appear to include the following:

(1) The advice that DK indicated he had received from the UT about the possibility of an appeal referred to judicial review but did not advise that there was a very short timescale within which a judicial review claim could be started in order to comply with the CPR.

(2) DK was seeking legal advice or was researching the relevant law in order to determine whether he had any grounds for a judicial review of the UT refusal decisions.

(3) DK was attempting to obtain a copy of the transcript of the hearing before UT Judge Jacob on 4 September 2012 in order to finalise his grounds for seeking judicial review. For reasons he has not put forward, this had not arrived by 13 December 2012 when he applied informally to me to order that he be provided with that transcript at public expense, an order that I had no power to make and which would inevitably have been refused even if I had the power to make it. I refused that informal application in my order of 21 January 2013 and DK subsequently issued perfectly coherent grounds which demonstrated that the transcript was not a necessary document in any event.

(4) DK was prepared to disregard my directions since he did not agree with them or because he wanted to further delay the court's decision in his renewed permission applications in his other three claims.

44. None of these reasons holds water. DK had received a clear direction on 20 September 2012 to issue and file a Cart claim with the Administrative Court by 19 October 2012 if he intended to proceed with it. He made no contact with the court until he sent an email to the court on 17 December 2012 which referred to a previous contact on 20 October 2012 which was never received by the court and which it appears from the chain of emails sent with the 17 December 2012 email was never sent. If DK had been granted an extension of time on 20 September 2012 for filing a Cart claim, that extension was only to 19 October 2012 and if he wanted a further extension, he should have made a formal application having obtained a fee remission before 19 October 2012 and he would only have been entitled to delay issuing the claim beyond that date if the court granted him a further extension beyond that date. It is clear from his failure to provide an explanation for the delay that he had no basis for obtaining an extension up to 17 December 2012. The order of 21 January 2013 did not, expressly or impliedly extend time for filing the as yet non-existent claim form. All it did was to grant a yet further extension for the culmination of the application for permission process in the three existing judicial review claims.
45. Even if time for filing had been extended until 13 February 2013, the claim was not filed by that date. The claim form did not arrive in draft at the Administrative Court until about 3 March 2013 but it could not be filed because DK had neither applied for a fee remission nor enclosed the requisite fee. This was not a minor and excusable slip as DK subsequently asserted. From his previous long history of filing applications and claims, DK knew that the court could not and would not file his claim without a fee remission. Given the delays that had occurred, even on DK's way of looking at this claim, the 13 February 2013 deadline was an absolute and final deadline which cannot be excused by postal delays or oversight with regard to the necessary fee remission.

(7) Conclusion – Extension of time

46. It follows that the time by which DK should have filed the Cart claim form will not be extended from 17 October 2012 until 11 March 2013. This is because the law as explained in the Cart case and as given effect to by CPR 54.7A clearly requires a Cart challenge to be started and progressed very quickly after a refusal decision of the UT save in exceptional circumstances. DK has provided no explanation for the delay in filing his Cart challenge for a period of nearly six months beyond the last date that it should have been filed and he has not been granted an extension of time by virtue of the two court orders dated 20 September 2012 and 21 January 2013.
47. DK is well aware, given his experience in his three other judicial review claims over the years, learnt that all judicial reviews must be started promptly. In conformity with the overriding objective, I refuse to extend time for the filing of this Cart judicial review claim. This conclusion is only provisional at this stage since, if I was to conclude that this case is so exceptional that DK would otherwise be granted permission to apply for a review the UT judge's decision had there been no delay or need for an extension of time, I would need to consider whether to grant permission despite the lengthy delay^[8]. I will therefore defer my decision as to an extension of time until after I have concluded whether this is one of those rare Cart cases in which permission should, save for the delay, be granted.

B. Applicable Law

1. DPA and FOIA - Overview

48. Before considering whether the UT decision refusing DK permission to appeal the decision of the IT, it is necessary to understand the relevant complex and arcane features of the FOIA and the DPA that deal with "personal data". The DPA was enacted in 1998 to give effect in the UK to Directive 95/46/EC on personal data, one of whose principal objectives is to protect the fundamental rights of individuals. One of the principle ways that the Directive seeks to achieve that protection is by seeking to ensure that anyone, whether a public authority or a private company or individual, who holds or processes^[9] personal data of other individuals in electronic or manual form ("the data controller") preserves its confidentiality, holds it in controlled, regulated and accessible conditions and allows access to it to the individual whose data it is ("the data subject"). In other words, personal data should be processed in controlled conditions, only made accessible in situations in which it is reasonably necessary to release it and readily accessible to the individual to enable the individual to know that the personal data were being stored and to enable them to be checked and corrected. An individual who wishes to have access to his personal data should only be deprived of access for very good reason and in the overriding public interest. The FOIA was enacted two years later pursuant to the then Government's political pledge to open up decision-making and the decision-making process of public authorities to the general public.
49. The DPA works separately and independently from the FOIA in this way^[10]:

(1) An individual who wishes to know whether a data controller is processing personal data about him has the right to request ("a data subject request") a data controller and to be informed by that data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller.

(2) The data controller is required to answer that request with a description of the personal data held, the purposes for which they are being processed and the recipients to whom they may be disclosed. This obligation of the data controller is known as the obligation to confirm or deny.

(3) An individual is entitled to have communicated to him in an intelligible form the information constituting any personal data of which that individual is the data subject and any information available to the data controller as the source of those data.

(4) Where a data controller cannot comply with the request without disclosing information relating to another individual who can be identified from that information, he is not obliged to comply with the request unless the other individual has consented to the disclosure of the information to the person making the request or it is reasonable in all the circumstances to comply with the request without the consent of the other individual.

(5) The data controller is required to process personal data in accordance with the data protection principles and the relevant conditions set out in schedules one to four of the DPA.

(6) The requirement to communicate to an individual his personal data is subject to exemptions. The relevant exemption in this case is that personal data is being processed for the apprehension or prosecution of offenders except where communication is necessary for the administration of justice and, to the extent that the personal data is sensitive personal data, processing is necessary for the purpose of or in connection with any legal proceedings.

50. The FOIA works in this way^[11]:

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

(2) The obligation to confirm or deny and to communicate information is excluded and the public authority is exempt from the duty to communicate the information if the information is absolutely exempt or if it is exempt and the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

(3) Information is absolutely exempt if it constitutes personal data of which the applicant is the data subject or if it is a third party's personal data and the public authority would be exempt from disclosing that data to both the data subject and the third party.

2. Directive 95/46/EC

51. The primary objective of the 1995 Directive on personal data is to protect individuals' fundamental rights, notably the right to privacy and accuracy of their personal data held by others ("data controllers") in computerised form or similarly organised manual filing systems whilst at the same time facilitating the free movement of such data between Member States of the European Union. Personal data is given a broad definition and the exemptions from an individual's right to access to his or her personal data are tightly drawn. The relevant provisions of the Directive are as follows^[12]:

Recitals

(1) Whereas the objectives of the Community, as laid down in the Treaty, as amended by the Treaty on European Union, include creating an ever closer union among the peoples of Europe, fostering closer relations between the States belonging to the Community, ensuring economic and social progress by common action to eliminate the barriers which divide Europe, encouraging the constant improvement of the living conditions of its peoples, preserving and strengthening peace and liberty and promoting democracy on the basis of the fundamental rights recognized in the constitution and laws of the Member States and in the European Convention for the Protection of Human Rights and Fundamental Freedoms;

(2) Whereas data-processing systems are designed to serve man; whereas they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy, and contribute to economic and social progress, trade expansion and the well-being of individuals;

(3) Whereas the establishment and functioning of an internal market in which, in accordance with Article 7a of the Treaty, the free movement of goods, persons, services and capital is ensured require not only that personal data should be able to flow freely from one Member State to another, but also that the fundamental rights of individuals should be safeguarded; …

(10) Whereas the object of the national laws on the processing of personal data is to protect fundamental rights and freedoms, notably the right to privacy, which is recognized both in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the general principles of Community law; whereas, for that reason, the approximation of those laws must not result in any lessening of the protection they afford but must, on the contrary, seek to ensure a high level of protection in the Community; …

(25) Whereas the principles of protection must be reflected, on the one hand, in the obligations imposed on persons, public authorities, enterprises, agencies or other bodies responsible for processing, in particular regarding data quality, technical security, notification to the supervisory authority, and the circumstances under which processing can be carried out, and, on the other hand, in the right conferred on individuals, the data on whom are the subject of processing, to be informed that processing is taking place, to consult the data, to request corrections and even to object to processing in certain circumstances; …

(33) Whereas data which are capable by their nature of infringing fundamental freedoms or privacy should not be processed unless the data subject gives his explicit consent; whereas, however, derogations from this prohibition must be explicitly provided for in respect of specific needs, in particular where the processing of these data is carried out for certain health-related purposes by persons subject to a legal obligation of professional secrecy or in the course of legitimate activities by certain associations or foundations the purpose of which is to permit the exercise of fundamental freedoms;

…

Article 1

For the purposes of this Directive:

1. (a) 'personal data' shall mean any information relating to an identified or identifiable natural person ('data subject'); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;

Article 13

Exemptions and restrictions

1. Member States may adopt legislative measures to restrict the scope of the obligations and rights provided for in Articles 6(1), 10, 11(1), 12 and 21 when such a restriction constitutes a necessary measure to safeguard:

(a) national security;

(b) defence;

(c) public security;

(d) the prevention, investigation, detection and prosecution of criminal offences, or of breaches of ethics for regulated professions;

(e) an important economic or financial interest of a Member State or of the European Union, including monetary, budgetary and taxation matters;

(f) a monitoring, inspection or regulatory function connected, even occasionally, with the exercise of official authority in cases referred to in (c), (d) and (e);

(g) the protection of the data subject or of the rights and freedoms of others.

3. 'Personal data'

(1) Statutory definition.

52. It is not always easy to determine whether data, which includes recorded information held by a public authority, is an individual's personal data since the definition of personal data in the DPA can give rise to technical difficulties. When interpreting and giving effect to the statutory definition of 'personal data', it is both necessary and permissible to give effect to the Directive so far as is possible. An Opinion on the concept of personal data ("WPO") was adopted by the Working Party established by Article 29(1) of the Directive^[13] and the IC whose decision notice in this case was promulgated in 2008 had been the UK representative on the Working Party. The WPO is therefore a particularly valuable guide as to how the definition of personal data should be applied to the documents in issue in this case. Furthermore, the IC has produced a Technical Guidance Note ("TGN") on personal data which incorporates the WPO into the eight questions it sets out which are intended to help determine whether data is personal data within the meaning of the DPA^[14]. The leading authority in England on the meaning of personal data, being the decision of the Court of Appeal in Durrant v Financial Services Authority^[15] is also highly relevant in this context, particularly as it the TGN was drafted to take account of this judgment as well as the WPO.
53. The statutory formulation of "personal data" is contained in section 1(1) of the DPA:

"'data' means information which-

…

(e) is recorded information held by a public authority and does not fall within any of paragraphs (a) to (d)."

"'personal data' means data which relate to a living individual who can be identified-

(a) from those data, or

(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,

and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual."

(2) 'information' is more widely defined in section 84 the FOIA as meaning:

"information recorded in any form."

(3) The DPA covers personal data processed by anybody who processes personal data whereas the FOIA is confined to information that is held by a public authority.

(4) Thus, there is an overlap in the definitions of personal data and information such that all personal data, if it is processed by a public authority, also falls within the definition of information.

(2) Guide to interpretation of 'personal data'

54. WPO. The WPO considered amongst other concepts the respects in which data may "relate" to an individual in a way that makes it personal data. Three concepts were identified being those of: purpose, concept and result. The result concept is of particular significance in this case. The relevant extract of the WPO dealing with the result concept is as follows:

"The Working Party has already paid attention to the issue of when the information may be considered as "relating" to a person. In the context of discussions on the data protection issues raised by RFID tags, the Working Party noted that "data relates to an individual if it refers to the identity, characteristics or behaviour of an individual or if such information is used to determine or influence the way in which that person is treated or evaluated.

In view of the cases mentioned above, and along the same lines, it could be pointed out that, in order to consider that the data "relate" to an individual, a "content" element OR a "purpose" element OR a "result" element should be present.

The "content" element is present in those cases where - corresponding to the most obvious and common understanding in a society of the word "relate" - information is given about a particular person, regardless of any purpose on the side of the data controller or of a third party, or the impact of that information on the data subject.

Information "relates" to a person when it is "about" that person, and this has to be assessed in the light of all circumstances surrounding the case. For example, the results of medical analysis clearly relate to the patient, or the information contained in a company's folder under the name of a certain client clearly relates to him. Or the information contained in a RFID tag or a bar code incorporated in an identity document of a certain individual relates to that person, as in future passports with a RFID chip. A third kind of 'relating' to specific persons arises when a "result" element is present.

Despite the absence of a "content" or "purpose" element, data can be considered to "relate" to an individual because their use is likely to have an impact on a certain person's rights and interests, taking into account all the circumstances surrounding the precise case. It should be noted that it is not necessary that the potential result be a major impact. It is sufficient if the individual may be treated differently from other persons as a result of the processing of such data.

Example No. 8: monitoring of taxis' position to optimize service having an impact on drivers. A system of satellite location is set up by a taxi company which makes it possible to determine the position of available taxis in real time. The purpose of the processing is to provide better service and save fuel, by assigning to each client ordering a cab the car that is closest to the client's address. Strictly speaking the data needed for that system is data relating to cars, not about the drivers. The purpose of the processing is not to evaluate the performance of taxi drivers, for instance through the optimization of their itineraries. Yet, the system does allow monitoring the performance of taxi drivers and checking whether they respect speed limits, seek appropriate itineraries, are at the steering wheel or are resting outside, etc. It can therefore have a considerable impact on these individuals, and as such the data may be considered to also relate to natural persons. The processing should be subject to data protection rules.

Also a "purpose" element can be responsible for the fact that information "relates" to a certain person. That "purpose" element can be considered to exist when the data are used or are likely to be used, taking into account all the circumstances surrounding the precise case, with the purpose to evaluate, treat in a certain way or influence the status or behaviour of an individual."

55. TGN. The TGN listed eight questions illustrated with examples which were intended to provide guidance to a decision-maker as to whether data is personal. If the answer to any of these questions is in the affirmative, that provides evidence that the data is personal^[16].
56. As an example of the WPG's further elaboration of these questions, it is worth considering that elaboration in relation to question (5) which is the question that the IT regarded as being the most relevant for determining whether the district judge's witness statement was personal data. This reads as follows: relevant part of the TGN, again dealing with the purpose element that can give rise to information relating to a data subject is as follows:

"5 The purpose of the processing

Is the data used, or is it to be used, to inform or influence actions or decisions affecting an identifiable individual?

Yes: The data is 'personal data' for the purposes of the DPA.

No: Go to next question.

5.1 Informing or influencing decisions

There are many other examples of data which 'relate to' a particular individual because it is linked to that individual and informs or influences actions or decisions which affect an individual.

Example: Data about an individual's phone or electricity account clearly determines what the individual will be charged.

Context is important here. Information about a house is often linked to an owner or resident and consequently the data about the house will be personal."

57. Durrant authority. The judgments in Durrant must also be taken into account when considering the meaning and application of 'personal data'. The leading judgment was delivered by Auld LJ. Buxton LJ delivered a short concurring judgment and Mummery LJ agreed with both judgments. This passage from the leading judgment of Auld LJ encapsulates the core ratio of the Court's decision on the personal data issue:

"28. It follows from what I have said that not all information retrieved from a computer search against an individual's name or unique identifier is personal data within the Act. Mere mention of the data subject in a document held by a data controller does not necessarily amount to his personal data. Whether it does so in any particular instance depends on where it falls in a continuum of relevance or proximity to the data subject as distinct, say, from transactions or matters in which he may have been involved to a greater or lesser degree. It seems to me that there are two notions that may be of assistance. The first is whether the information is biographical in a significant sense, that is, going beyond the recording of the putative data subject's involvement in a matter or an event that has no personal connotations, a life event in respect of which his privacy could not be said to be compromised. The second is one of focus. The information should have the putative data subject as its focus rather than some other person with whom he may have been involved or some transaction or event in which he may have figured or have had an interest, for example, as in this case, an investigation into some other person's or body's conduct that he may have instigated. In short, it is information that affects his privacy, whether in his personal or family life, business or professional capacity. A recent example is that considered by the European Court in Criminal Proceedings against Lindquist, Case C-101/01 (6^th November 2003), in which the Court held, at paragraph 27, that "personal data" covered the name of a person or identification of him by some other means, for instance by giving his telephone number or information regarding his working conditions or hobbies."

58. It is also worth considering this short passage in Buxton LJ's judgment:

"80. But the information sought by Mr Durrant was by no stretch of the imagination a borderline case. On the ordinary meaning of the expression, relating to him, Mr Durrant's letters of complaint to the FSA, and the FSA's investigation of that complaint, did not relate to Mr Durrant, but to his complaint. The 1998 Act would only be engaged if, in the course of investigating the complaint, the FSA expressed an opinion about Mr Durrant personally, as opposed to an opinion about his complaint; a contingency for which, nonetheless, the draftsman of the Act thought it necessary to make specific provision. And on the purposive construction of the expression, as investigated in paragraph 78 above, access to that material could not possibly be necessary for or even relevant to any protection by Mr. Durrant of his privacy. The excessive nature of his demands is perhaps best illustrated by the claim mentioned by my Lord in his paragraph 62, that Mr. Durrant should be told the identity of all those at the FSA who had handled his complaint. In the formal FSA complaints process in which Mr Durrant engaged before bringing the present proceedings (see paragraph 10 above) that information may or may not have been relevant, though there is no indication that Mr Durrant or those who may have been advising him then sought it. It has nothing whatsoever to do with Mr Durrant's privacy, and proceedings under the 1998 Act cannot be used now, or at all, to extract it."

(3) Discussion of meaning of 'personal data'

59. The concept of personal data must be considered in the context of being data which is protected by the Directive. The relevant legislation in the UK is intended to give effect to the Directive and should be read so far as possible to have a meaning which most closely gives it effect. The legislation is drafted in such a way that, in the context of this case, these three questions must be answered in the affirmative in order for the material in issue to be personal data:

(1) Is the material data, namely information which is being processed or recorded or forms part of an accessible record or is recorded by a public authority in the ways defined in section 1 of the DPA?

(2) Is it possible to identify a living individual from the data?

(3) Does the data relate to that individual?

60. In order to answer questions (2) and (3), it is necessary to consider the data from a number of different notions or considerations:

(1) Does the data:

(i) Have personal connotations affecting the data subject's privacy, being for this purpose his personal or family life or his business or professional capacity, rather than being purely biographical or factual with no personal connotations?

(ii) Contain biographical information in a significant sense rather than recording the data subject's involvement in a matter or event with which the individual has no personal connections?

(iii) Have the data subject as its focus?

(iv) Fall in a continuum of relevance or proximity to the data subject as distinct, say, from transactions or matters in which he may have been involved to a greater or lesser degree (the Durrant tests)?

(2) Does the data "relate" to an individual in the sense that it is "about" that individual because of its:

(i) "Content" in referring to the identity, characteristics or behaviour of the individual?

(ii) "Purpose" in being used to determine or influence the way in which the individual is treated or evaluated?

(iii) "Result" in being likely to have an impact on the individual's rights and interests, taking into account all the circumstances surrounding the precise case (the WPO test)?

(3) Are any of the 8 questions provided by the TGN are applicable? These questions are as follows:

(i) Can a living individual be identified from the data or from the data and other information in the possession of, or likely to come into the possession of, the data controller?

(ii) Does the data 'relate to' the identifiable living individual, whether in personal or family life, or business or profession?

(iii) Is the data 'obviously about' a particular individual?

(iv) Is the data 'linked to' an individual so that it provides particular information about that individual?

(v) Is the data used, or is it to be used, to inform or influence actions or decisions affecting an identifiable individual?

(vi) Does the data have any biographical significance in relation to the individual?

(vii) Does the data focus or concentrate on the individual as its central theme rather than on some other person, or some object, transaction or event?

(viii) Does the date impact or have potential impact on an individual, whether in a personal or family or business or professional capacity (the TGN test)?

(4) Does the data "relate" to the individual including whether it includes an expression of opinion about the individual and/or an indication of the intention of the data controller or any other person in respect of that individual. (the DPA section 1(1) test)?

61. The decision as to whether particular data or a particular document is or contains personal information will not often provide difficulties. In the relatively rare case where the answer is not clear cut, the decision-maker must apply any or all of the four separate but applicable tests. In doing so, he must attempt to give full effect to the relevant provisions of the Directive and, thereby, provide a purposive test to the statutory phrase "personal data". In doing so, the following guidance can be followed:

(1) The Directive is intended to provide protection to all information relating to an identified or identifiable natural person ('data subject'). An identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity. The definition is, therefore, a broad one that extends well beyond what would be regarded as personal information in an everyday context.

(2) Durrant did not, and was not intended to, provide a definitive guide to the meaning of 'personal data' as that phrase is used in both the DPA and, by incorporation, the FOIA. The case was concerned with a particular type of information that was contended to be personal data. This information contained no obvious identification of the individual in question and no identification of any of his personal features. Moreover, the suggested relationship did not extend to any possible result or impact on that individual's rights or interests and the information was not accessible to him as information under the FOIA if he could not access it under the DPA. It follows that the case was not concerned with, and did not address, information that contained or referred to a result element.

(3) In this case, however, the data in question, namely the three factual witness statements, clearly refer to the district judge. Given DK's evidence as to the use he intends to make of the data on receiving it, it is likely that the data also identifies him by identifying the effects that the statements might have on his rights and interests so that they are likely to engage the result notion identified in the WPO test. Moreover, if the information does not contain personal data, the witness statements can unquestionably be accessed under the FOIA, subject to any applicable exemption, if they are not accessible under the DPA.

(4) The TGN tests covered the same ground as the WPO tests and were consistent with them but were more extensive since they also incorporated the Durrant tests. This was the evidence accepted by the IT that it heard from the Assistant IC^[17] – paragraph 40 of the IT's decision).

(4) Conclusion – meaning of 'personal data'.

62. It follows that, in a difficult or uncertain case, the decision-maker should apply first the Durrant test and then the WPO test coupled with the TGN test. Having done so, the decision-maker should see whether the information in question is confirmed to be personal data by an application of the statutory tests. In any but an exceptional case, information identified as personal data by the application of the Durrant, WPO and TGN tests will also be identified as personal data by a straightforward application of the statutory test since the other three tests are intended to be no more than guidance as to the application of that test.

4. 'Sensitive personal data'

63. Section 2 of the DPA identifies 'sensitive personal data' as being data consisting of information of a particularly sensitive kind such as his racial or ethnic origin, his political opinions, his religious belief and his physical or mental health, his sexual life. Included in this definition is information as to the commission or alleged commission by the data subject of any offence or any proceedings for any offence committed or alleged to have been committed by him and the disposal of such proceedings. If personal data is also sensitive personal data, it is additionally protected by the DPA since, for example, it may not be processed by the data controller unless the data subject has given his explicit consent to that processing^[18].

5. 'Personal data' overlap between the FOIA and the DPA

(1) The potential overlap between the FOIA and the DPA

64. The relevant statutory provisions concerned with 'personal data' are not clearly defined in plain English^[19] and the inter-relationship between the personal data provisions in section 40 of the FOIA^[20] and section 7 of the DPA gives rise to "a less than happy marriage which should be referred to the Law Commission as soon as possible"^[21]. The essential background to the statutory treatment of personal data is the enactment of the DPA in 1998 to give effect to the Personal Data Directive 1995^[22]. Section 7 of the DPA contains one of its core provisions since it provides for the right of access of individuals, or data subjects, to their personal data held by a person or organisation, or data controllers. A data controller may or may not be a public authority and the right of access is subject to a number of defined exceptions. If a data subject requests details of his or her personal data held, or "processed", by the data controller and considers that that request has not been complied with in accordance with the DPA, that data subject may apply to a county court or the High Court to order the data controller to comply with that request^[23]. A data subject may also apply to the IC for an assessment of whether the data controller's processing of his or her personal data has been or is being carried out in compliance with the provisions of the DPA^[24].
65. Soon after the enactment of the DPA, the Government decided to provide a statutory right to obtain information held by public authorities and in 2000 it enacted the FOIA. This right is provided for in sections 1 and 2 of the FOIA and the FOIA provides that any individual who considers that his or her request for disclosure had not been dealt with in accordance with the FOIA can complain to the IC who can decide whether the public authority's refusal notice was in accordance with the law and, if not, whether and how to amend that notice^[25].
66. The result of these two separate Acts is that a public authority such as NP, that holds a data subject's personal data which the data subject can request access to under the DPA would also be susceptible to a FOIA request for production of copies of the same material as information by that the same individual since much personal data held by a public authority data controller will also come within the FOIA identification of information held by the same public authority.

(2) How the FOIA deals with the personal data overlap

67. The FOIA is drafted in such a way that where there is an overlap between the right to personal protection of personal data held by a data controller and the public access right to public authority held data, the latter would only be permitted if it was permitted by the former. Thus, the FOIA has drafted in such a way that, in circumstances where the two Acts overlap, the FOIA is subordinate to the DPA. In other words, an individual who is seeking access to his or her personal data from a public authority must do so under and by using the DPA and may not make a FOIA request for the same material under the FOIA.
68. This requirement is clearly explained in The Law of Freedom of Information as follows:

"Section 40(1) of the 2000 Act is relatively straightforward. It provides that 'Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject'. In other words, one cannot apply under the 2000 Act for information about oneself, [if that information] satisfies the definition of personal data in the 1998 Act. The 1998 Act, and its limitations and exemptions, and it alone, governs access to one's own personal data … ."^[26]

69. This principle is given effect to in the FOIA by a series of interlocking provisions. In summary:

1. FOIA

(1) The right to obtain information, or to have information communicated, is given effect to by the applicant serving a request for information on a public authority. Information, in this context, means information in any form^[27].

(2) The public authority must inform the individual whether it holds that information and, if it does, that information must be communicated to him^[28].

(3) The right to communication is subject to statutory exemptions^[29]. Unless the exemption is an absolute exemption, exempt information is in turn subject to a public interest test which requires the exemption to be upheld only where the public interest in maintaining it outweighs the public interest in disclosing the information sought^[30].

(4) The relevant FOIA exemptions in this case are the 'investigations and proceedings conducted by public authorities', 'law enforcement' and 'court records etc.' exemptions^[31]

(5) Any information to which a request for information relates is absolutely exempt information if it constitutes personal data of which the applicant is the data subject^[32].

(6) Similarly, any information to which a request for information relates is absolutely exempt information if it constitutes personal data of a third party which a public authority would not be permitted to disclose to both the data subject and the third party^[33].

(7) An individual may apply to the IC for a decision whether in any specified respect, a request for information made by the individual, or complainant, to a public authority has been dealt with in accordance with Part I of the FOIA^[34].

2. DPA

(8) A data subject who wishes to have communicated to him any of his personal data that is being processed, a concept that includes its being obtained, recorded or held, by a public authority may make a data subject request for and is entitled to have communicated to him that personal data^[35].

(9) The only exemption from this obligation is for exempt personal data as defined in Part IV of the DP. Of particular relevance to this case are the 'crime and taxation' and 'regulatory activity' exemptions^[36]. Furthermore, a data controller is not obliged to comply with a request for the disclosure of personal data if that disclosure would involve disclosing personal data of another individual who can be identified from that information unless the other individual has consented to the disclosure or it is reasonable in all the circumstances to comply with the request without the consent of the other individual^[37]

(10) A data subject may apply to the court for an order that the data controller complies with the data subject request where he contends that the data controller has failed to comply with the request in contravention of the DPA^[38]. Furthermore, anyone who is or believes himself to be directly affected by any processing of personal data may apply to the IC for an assessment as to whether the processing has been or is being carried out in compliance with the provision of the DPA^[39].

(3) Discussion – overlap.

70. It follows from these provisions that the FOIA does not apply to a request for information which is also personal data held by a public. This follows because:

(1) A request for information which is personal data is not subject to Part 1 of the FOIA. This is because that request is not subject to the obligation placed on the requested public authority to confirm or deny and, hence, to the obligation to communicate the information^[40].

(2) The obligation to communicate that information which would arise if it was not personal data is subject to an absolute exemption to which the public interest proportionality test is not applicable^[41].

(3) The information which is absolutely exempt from the FOIA communication provisions is information that the DPA characterises as being the personal data of an individual who could otherwise make a FOIA request for such information. Such material is therefore personal data which can only be the subject of DPA disclosure to the data subject^[42].

(4) The exclusive remedy for non-communication of the applicant's personal data is by way of an application to the court whereas the exclusive remedy for non-communication of information which is not the personal data of the applicant is by way of a complaint to the IC^[43].

71. The exclusion of personal data from the provisions of the FOIA is therefore achieved by the FOIA defining the information that is subject to its provisions in a way that excludes from that definition material that what would otherwise by within that definition but which is also personal data as defined in the DPA. The FOIA refers to its subject matter as information which is defined as "information recorded in any form" save for information that is personal material^[44]. It follows that personal data is information of a particular kind and that such information is excluded from the class of material defined in the FOIA as being information which is subject to Part 1 of the FOIA. One of the obvious reasons why the two Acts are drafted so as to be mutually exclusive in relation to an applicant's personal data is that the regulation of requests for personal data are subject to a different regime to that regulating requests for information.

(4) Conclusion – overlap

72. If information held by a public authority is also personal data, it is excluded from the ambit of the FOIA and any request for its disclosure should be dealt with under the DPA. This applies to the personal data of the applicant. It also applies to the personal data of a third party where the public authority is not permitted to disclose that information to either the applicant or the third party. In all these cases, the request must be processed under the DPA^[45].

E. Factual Background

1. DK's county court claim

73. The starting point of DK's IT appeal was an assessment of costs hearing held on 27 January 2004 that was conducted by a district judge in Newcastle Combined Court ("the district judge"). The hearing had arisen out of a two-day hearing by a circuit district judge in 2003 who had, in a reserved judgment dated 11 June 2003, dismissed DK's application for permission to appeal a previous order by a different district judge that had dismissed his application to reinstate the original action. The circuit district judge had stated in her reserved judgment that DK should pay the defendant's costs of the permission application hearing. The order that the court subsequently drew up and issued did not contain a direction giving effect to the district judge's decision relating to the payment of the defendant's costs. At the subsequent costs assessment hearing which was heard by the district judge, DK alleged that that judge informed those present, being himself acting as litigant in person and two representatives of the defendant's solicitors, that he could not assess the costs awarded in the defendant's favour unless the circuit judge's order was amended to add a direction that DK should pay the costs of the permission hearing and that he did not have the power to make the amendment himself although the circuit judge did have that power. However, when the district judge, in conformity with the CPR and county court practice, subsequently drew up and arranged for the court to issue the order resulting from his hearing, the order included a direction that the defendant's costs of the action should be paid by DK. The CPR permits a district judge to amend an order made by a circuit district judge if the amendment corrects an error in the order as it had been drawn up if the result of the amendment is that the order in its amended form reflects what the circuit judge had intended it should contain. The district judge's action in correcting the order in this way was confirmed to have been correct by a different circuit judge when dismissing DK's subsequent application for permission to appeal the district judge's amendment order which DK had contended had been made by the district judge without jurisdiction. The circuit judge held that the amendment order had been made correctly and was within the jurisdiction of the district judge to make.
74. DK only appears to have taken exception to the district judge's action in issuing the order that had corrected the circuit district judge's earlier order once he had failed in his attempt to appeal the district judge's amendment order^[46]. He referred to his notes made during the hearing before the district judge. He contended that these confirmed his recollection that the district judge had stated that he lacked the jurisdiction to amend the order. The solicitor representing the defendant informed him, when he asked that solicitor what his recollection was, that he also recollected that the district judge had stated that but he added that the district judge must have realised after the hearing that he did have the jurisdiction to amend the order. DK obtained a transcript of the hearing and then obtained an order permitting him to listen to the tape of the recording of the hearing. The transcript and what he heard when listening to the tape convinced him that the district judge had arranged for the tape to be tampered with so as to have the relevant passages of the district judge's comments edited out of the tape.
75. DK was convinced in his own mind that the district judge had deliberately interfered with, or caused the interference with, the tape. He began an obsessive campaign to expose what he considered to be the criminal behaviour of the district judge. He considered that the district judge had lied at the hearing as to his intentions so as to curtail discussion about his powers, had subsequently unlawfully issued the correcting order that he had always intended to issue, had then arranged for the tape recording the proceedings to be tampered with so as to cover up his lies when he realised that DK had arranged for a transcript of the tape to be obtained which would show that he had lied during the hearing and finally lied to the police officer who interviewed him as part of NP's investigations into DK's complaint about what DK considered to have been his criminal conduct. DK considered that the district judge's motivation to lie and then to issue the amendment order resulted from the district judge's malicious and vindictive wish to harm and punish him as a result of the district judge's animosity towards him arising from trying an unrelated case a few years previously in which DK was one of the litigants and, in the course of that trial, forming an extremely adverse view about him. He also considered that the district judge's behaviour was a particularly glaring example of the systematic manipulation of his claim by the Newcastle and Gateshead courts on many occasions so as to deny him a fair hearing and to thwart his quest for justice. A further strand in his thinking was that he felt that he had been deprived of the windfall arising from the omission of provisions requiring him to pay the defendant's costs in the order issued after the circuit judge's permission hearing. DK considered that the district judge, by correcting that order, had led him having unnecessarily to pay the defendant's costs of his unsuccessful reinstatement and permission applications which, as he informed the IT, totalled in excess of £90,000.

2. NP's investigations of DK's complaint

76. DK's initial action was to report what he believed to be the district judge's criminal conduct to NP in October 2004 because, in his words, "he had arranged for his remarks on jurisdiction to be removed from the tape". NP undertook three successive investigations of DK's complaint about the district judge. These were undertaken under the supervision of the same Detective Inspector. The first and third investigations were carried out by different Detective Sergeants and the review of the first investigation was conducted by the supervising Detective Inspector.
77. The first investigation concluded in May 2005 that no crime had been committed. The district judge was interviewed during this investigation but was not asked to make a statement. It is not clear whether the interview notes made by the officer formed part of the compendious document dealt with by the IT as the district judge's witness statement. DK challenged this finding and it was reviewed by the supervising Detective Inspector who, in September 2005, reached the same conclusion. DK then made what he described as "a strongly worded complaint to a senior officer at NP" and a third investigation followed. It was during this third investigation that the district judge was interviewed by the investigating officer as a witness and not under caution and a witness statement was taken from him dated 8 February 2006.
78. The investigation report of this third investigation made by the investigating officer included a copy of the district judge's statement and copies of his notes of what was said during the interview and a copy of the district judge's notes. The document referred to by the IT in its decision as the district judge's witness statement appears to be a reference to the composite document produced by these three documents^[47]. However, the district judge's notes were found by the IT not to exist or not any longer to be in existence^[48] so the disclosure request no longer extended to those notes at the IT hearing.
79. The investigating officer also interviewed and took witness statements from the two representatives of the solicitors acting for the defendant in the underlying claim and two technical witnesses involved in the forensic examination of the tape. The file containing details of the three investigations, including the five statements, was sent to the CPS for advice and, in the light of the advice received, NP informed DK in September 2006 that there was insufficient evidence on which to prosecute any party.

3. DK's formal complaint to NP

80. DK then complained to the CPS that it had advised NP without first requiring the NP investigation to re-interview the district judge under caution. This complaint was not accepted by the CPS. DK then made a general complaint to NP. This involved 14 separate complaints of neglect and failures in duty by the supervising investigating officer of the three investigations. These included a complaint that neither of the investigating officers interviewed the district judge under caution. DK's aim in making this wide-ranging complaint was to secure a further investigation that would include the district judge being interviewed under caution and that that investigation would result in his being charged with a criminal offence.
81. NP initially declined to accept the complaint but, in December 2006, following a complaint to the Independent Police Complaints Commission ("IPCC"), NP accepted the complaint and carried out a formal investigation into DK's complaints. The formal investigation included receiving a detailed statement from DK dated 25 June 2007, the service of a misconduct notice on the supervising investigating officer and his providing a written response under caution. The investigation was completed on 7 November 2007 and it concluded that there was no evidence of any police misconduct or of any failure of a performance duty so that all 14 complaints were unsubstantiated. In short, the complaint was dismissed.

4. DK's IPCC appeal

82. DK then served on the IPCC a notice of appeal against that investigation decision on 5 December 2007. This took the form of a review of the NP decision and, in a decision dated 20 December 2007, the IPCC held that it did not uphold the appeal and dismissed it. DK then decided to seek a judicial review of this decision. His claim against the IPCC is made in one of the three linked judicial reviews. Permission in each was refused on paper and the renewed application for permission in each is being decided at the same time as this application. DK filed the judicial review claim form in the Administrative Court on 4 April 2008 and permission was refused on paper on 13 August 2008. The renewed application is still to be determined, the five-year delay in the decision being taken has occurred because the court has ruled that DK should be permitted to adjourn it to await the conclusion of his attempts to obtain a copy of the district judge's witness statement.

5. DK's FOIA requests for information from NP

83. DK's first application was an information request dated 23 November 2006 for:

" … reports by DS [name supplied] and DS [name supplied] regarding a complaint made by me against [the district judge] … of Newcastle Combined Court. I would also be obliged for copies of all forensic reports and all correspondence between [NP] and Newcastle Combined Court which relates to my complaint."

It is to be noted that the five witness statements that remain in issue were not included in that request. NP informed DK on 24 November 2006 that his request related to his personal data and refused it as absolutely exempt under section 40(1). NP also advised DK that it would process the request under the DPA if he paid the appropriate fee^[49].

84. DK responded on 4 December 2006 by reapplying under the FOIA and stating that his request did not relate to personal data held by NP about him since it related to a complaint made by him. The request was therefore not a DPA data subject request. NP, without giving a reason for not sticking to its refusal of 24 November 2006 changed tack and issued a decision dated 30 January 2007 stating that it would treat DK's second request under the FOIA. NP refused the request under the FOIA and its' refusal notice stated that this refusal was based on the information being exempt under sections 30(1) and 30(2) of the FOIA and that the exemption would not be disapplied because the public interest in withholding the information outweighed the public interest in disclosing it. According to DK, he was subsequently informed by someone within the NP that NP had changed its mind on receipt of the second request for information and had decided that it could proceed under both the DPA and the FOIA and that DK was entitled to choose which regime to apply under.
85. NP was in error in dealing with this second request for information having just dealt with it and refused it unless, which was not provided, it had a good reason for doing so. It was also in error in allowing DK to choose which statutory regime he could apply under since the decision as to which regime it should proceed under was its own. Thus, without good reason to disregard the first decision, NP should have stuck to its guns and declined to deal with the second request at all or to have dealt with it in exactly the same way as it dealt with the first request. Had it done so, DK's only remedy would have been to apply again under the DPA or to complain to the IC that the refusal notices were not in accordance with the requirements of Part I of the FOIA because the refusal decisions to treat the requests as being data subject request under the DPA was Wednesbury unreasonable that they were based on an error of law or was so unreasonable that no properly informed public authority could have reached them if acting rationally^[50].

6. DK's complaint to the IC and the IC decision

86. DK's complaint to the IC. DK was dissatisfied with the part of NP's second refusal notice which declined to disclose the information sought because it had decided to apply the section 30 exemptions having balanced the public interest in maintaining the exemptions against the public interest in disclosing the documents^[51]. He first asked NP to review its decision under section 30 of the FOIA and, on 2 March 2007, NP upheld its earlier section 30 refusal. He then complained to the IC in complaint form dated 30 April 2007, a step he was entitled to do so since NP's second refusal notice was not invalid even if it was one that it had mistakenly issued.
87. His complaint was in these terms:

"The refusal if information has prejudiced action being taken to proceed against a district judge at Newcastle Court for criminal conduct. Investigations have been terminated prematurely for no sound reason.

The information is required to permit a full description of the failings of [NP] to be reported to the IPCC. It is also required to enable discussions relating to my complaints to be held with an investigating officer.

The position held by the police force that it is not in the public interest to release a copy of the investigating officers' reports is unsustainable. It is clearly in the public interest for matters relating to an aborted investigation of a judge who has lied to the police to be made public"

Thus the complaint took issue with NP's reliance on two FOIA exemptions from disclosure since DK contended that they should have been disclosed because the public interest in not applying those exemptions should have outweighed the public interest in applying them. In short, DK contended that NP should have applied the public interest test required by section 2(2) of the DPA, as it did do, but should have exercised its discretion provided for by Part I in a way that was favourable to himself. However, the IC only had jurisdiction to decide whether DK's request for information had been dealt with in accordance with Part 1 of the FOIA^[52].

88. The IC was, however, familiar with his limited jurisdiction. He appreciate that he had first to decide whether the information requested by DK should be considered under the FOIA or as his personal data under the DPA since, if it was dealt with as DK's personal data, the IC had no jurisdiction to deal with DK's complaint. Only the High Court or the county court could have dealt with such a complaint under section as an application under section 7(9) of the DPA. NP was, of course, a party to DK's complaint to the IC and at the IC's request it provided him with copies of all the information which formed part of the second FOIA request for information. Having considered the documents that were supplied with some care, the IC wrote to both DK and NP to advise them that the material he had received from NP and which DK had asked should be provided under the FOIA was DK's personal data so that he was closing DK's FOIA file and would now deal with his complaint as a request for an assessment under section 42(1) of the DPA. These views were incorporated into his subsequent decision notice that was dated 17 March 2008.
89. The IC dismissed the complaint in a decision notice whose operative parts were as follows:

"2. On 23 November 2006 [DK] wrote to [NP] to make a request for information citing the [FOIA]. The complainant asked:

"… for the supply of reports by [a named officer] and [a second named officer] regarding a complaint made by me against District Judge [name redacted] of [name redacted] Combined Court. I would also be obliged for copies of all forensic reports and all correspondence between [NP] and Newcastle Combined Court which relates to my complaint."

3. [NP] responded to [DK's] request on 24 November 2006. The police told him that the information he was seeking was his personal data and was therefore exempt under section 40(1) of the [FOIA]. [DK] was advised that the requested information may be provided to him, subject to certain exemptions, under the provisions of section 7 of the [DPA]. [DK] was also told how to make a data subject request. However, the [IC] notes that [DK] has also explained that he was later informed by the Professional Standards Department within the public authority that the request should be process under the [FOIA] rather than the DPA. It therefore appears that he received conflicting information from different departments within the public authority about whether the request was subject to the [FOIA] or the DPA.

4. [NP] did not accept that his request was for his personal data. He wrote to [NP] on 4 December 2006 insisting that his request was made under the [FIOA].

5. [NP] acknowledged [DK's] request on 3 January 2007. On 30 January 2007 [NP] issued a refusal notice which cited section 30(1) and (2) – Investigations and Proceedings Conducted by Public Authorities and 32(1)(c) – Court Records. …

9. On 7 April 2007 [DK] contacted the [IC] to complain about the way his request for information had been handled. For the sake of clarity, the [IC] has investigated and made a decision about the request dated 4 December 2005, though he has referred to the earlier request of 23 November 2006. The [IC] has deemed the complaint about the 4 December 2006 request as eligible because [DK] has supplied the requisite documentary evidence, such as copy of his request and internal review.

…

14. The [IC] has examined the information sought by [DK] and is satisfied that it is [DK]s] personal data. …

15. … Although the [IC] is satisfied that all of the information is [DK's] personal data he recognises that it is also the [district judge's] personal data in addition, the material includes personal data about other third parties. Nevertheless, because in the [IC's] view all of the information is [DK's] personal data section 40(1) applies.

…

The Decision

17. The [IC's] decision is that the information sought engages section 40(1) of the Act and therefore attracts this exemption. …

The [IC] notes that [NP's] response to the 23 November 2006 request on 24 November 2006 correctly cited section 40(1). However [DK's] letter on 24 November 2006 was treated as a new request and the public authority cited alternative exemptions, namely sections 30(1) and 32(1)(c). The responsibility for applying exemptions and determining whether a request should be considered under the [FOIA] or the DPA rests with the public authority and not the applicant. In this case the [IC] recognises that there are other exemptions besides section 40(1) which may have been applicable. However, in this case the [IC's] decision is that [NP] was not in fact obliged to comply with section 1(1)(a) by virtue of section 40(5). This is on the basis that the information requested was [DK's] personal data and therefore the request should have been considered under the DPA.

Other matters

19. The Commissioner wishes to highlight the following matters of concern:

20. Section 7 of the [DPA] gives an individual the right to request copies of personal data held about them – this is referred to as a Right of Subject Access. The [IC] has made an assessment under section 42 of the DPA of [NP's] compliance with [the DPA]. He has communicated the outcome of his assessment to [DK] separately by way of a letter dated 14 January 2008. This assessment does not form part of this decision notice. An assessment under section 42 of the DPA is a separate legal process from consideration under section 50 of the FOI Act.

21. The Commissioner notes that [DK's request for information dated 4 December 2006] should have been dealt with as a data subject request under section 7 of the DPA. He would encourage public authorities to consider requests under the correct regime at the first instance. In this case, he appreciates that the public authority responded to an earlier request dated 23 November 2006 citing section 40(1) [DK] was advised that the request should be processed as a data subject request, subject to payment of the £10 fee and the provision of identity documents. In the Commissioner's view, it was appropriate for the police to process that request under the DPA. Further it would also have been appropriate for it to have considered the 4 December 2008 request under the DPA."

90. The IC therefore held that the information that DK had requested from NP was exempt from disclosure under section 40(1) and that NP was not obliged under section 40(5) to confirm or deny whether it had the requested information. This finding related to all the information requested by DK and therefore included the five witness statements and all the other documents forming part of the NP investigations reports.
91. The IC's reasoning was that the data that DK had requested was DK's personal data since it had recorded information about the way in which his allegations about the district judge were investigated and it reflected details used to inform the final decision about DK's allegations. Moreover, the outcome of that decision would arguably affect DK as well as the district judge. The IC concluded that the information was both DK's personal data and also the district judge's personal data and it also included personal data about other third parties.
92. The IC also concluded that NP was correct in its initial decision that the request should be refused because the documents were DK's personal data so that it correctly refused his request for disclosure under section 40 of the FOIA. Moreover, the IC also expressed the view that both of DK's requests should have been made and considered as data subject requests under section 7 of the DPA.
93. In summary, therefore, the IC decided:

(1) To correct NP's mistake in issuing two mutually inconsistent decisions within one month of each other by deciding that both should have been decided in the same way;

(2) That NP had the sole duty to decide which Act was applicable to the request in question;

(3) That since NP had not complied with that duty and had allowed DK to dictate that the second request should be considered as a FOIA request, the IC should take the decision that NP had failed to take. He decided that the request was seeking DK's personal data and that DK should have made his request for it as a data subject request under the DPA; and

(4) DK's second request for information was therefore to be treated as having been made as a data subject request under the DPA.

(5) NP should have taken that same decision in relation to both requests for information that it had received from DK.

(6) To dismiss DK's complaint under section 40(1) of the FOIA on the grounds that the request sought the applicant's personal data so that its disclosure was absolutely exempt under that section. [ ]

7. DK's data subject request to NP

94. The IC's case officer wrote to DK on 10 January 2008 to inform him that the IC's view was that all the information relevant to his request was personal data and that he was not entitled to it under the FOIA but that he might be entitled to it under the DPA. DK therefore sent NP on 17 January 2008 a data subject request under section 7 of the DPA indicating that he was (i) a person reporting an offence or incident, (ii) a witness to an offence or incident and (iii) a victim of an offence. He received a bundle of documents from NP pursuant to this request that contained copies of some of the documents that he had requested. He then complained to the IC on 1 March 2008 about the non-disclosure of the balance of those documents. The IC treated this complaint as a request for an assessment under section 42 of the DPA and, in a letter dated 14 January 2008, communicated the result of that assessment to DK.
95. The administrative court has not been provided with a copy of DK's data subject request or of the IC's letter that states his conclusions following his assessment. Any dissatisfaction with the way that a data subject request is dealt with under section 7 of the DPA must be dealt with by way of an appeal to the High Court or county court. Furthermore, assessments carried out under section 42 of the DPA are dealt with by the IC as a separate process from a complaint to the IC under section 50 of the FOIA.

93. DK was not prepared to appeal the part of his data subject request refused by NP to the High Court or county court and did not take issue with the IC's assessment under section 42. Thus, the only matters involving decisions of the IC in his appeal to the IT under section 58 of the FOIA were the decision that the five witness statements were personal data and were therefore exempt from disclosure and the failure to take a decision that the three factual witness statements were not exempt from disclosure.

8. DK's and NP's response to the IC's decision

94. NP had, following the IC's decision, two data subject requests to consider, being DK's wide-ranging data subject request dated 17 January 2008 and the second request for information which the IC had ruled should be treated as a data subject request under the DPA. NP immediately complied with the IC's decision by communicating some of the material sought by DK under both requests. This material was treated as being his personal data which NK considered could be disclosed to him. These documents were, however, heavily redacted to remove the third party personal data from them that NP considered that they contained. On 26 March 2008, DK requested the IC to undertake an assessment under section 42(1) of the DPA in order to advise him whether NP had considered and dealt with the two requests in accordance with the DPA.

9. DK's appeal to the IT – prior to hearing

96. DK served a notice of appeal on the IT on 7 April 2008. The Administrative Court has not been provided with a copy of that notice of appeal so it is not possible to ascertain what the grounds of appeal were. However, in the light of the previous procedural history, the only ground of appeal that the IT had jurisdiction to consider was whether the IC's decision that the NP should have decided that DK's second request for information should be decided under the DPA regime was perverse. However, that appeal was now academic since all the documents being sought by DK were subject to his data subject request and his second request for information which were both being processed by NP. Any complaint that DK had about the redactions or any withholding of disclosure had to be dealt with under section 7(9) of the DPA by way of an application to the High Court or the county court.
97. Over the next few months, an unidentified member of the IT held a number of directions hearings and pre-hearing reviews by way of telephone conferences with DK and the IC's representative.
98. In the words of the IT decision:

"There were a number of directions hearings and pre-hearing reviews by way of telephone conferences which resulted in three sets of directions being issued by the Tribunal. These were primarily aimed at determining what documents were in dispute. … By the time we arrived at the full hearing there had been further disclosures under the data subject request and under the FOIA request before us including some a few days before the hearing and one at the beginning of the first day. All that remained in issue was 5 witness statements."

99. These resulted in three sets of directions being issued by the Tribunal. These were primarily aimed at determining what documents were in dispute and, by the time of the full hearing, there had been further DPA disclosures under the data subject request and DK's second request for information so that all that remained in issue were the 5 witness statements. Since DK had elected to apply for these as part of his data subject request, and since the IC had ruled that his other request should also be dealt with under the DPA, the IT should have ruled that it no longer had jurisdiction to deal with that residual element of the matters referred to it by DK's notice of appeal.

10. DK's appeal hearing in the IT

100. The effect of this somewhat convoluted history was that DK had requested disclosure of most if not all of the documents in NP's possession that related to its investigations into his complaint about the district judge as a request for information under the FOIA. NP refused to disclose any documents requested under section 40 and then under section 30 of the FOIA. DK complained to the IC under section 50 of the FOIA about this refusal. The IC dismissed the complaint relating to all the documents sought on the sole ground that the data was DK's personal data. DK had also made a data subject request to NP at the suggestion of the IC^[53] and NP initially responded by supplying a limited number of redacted documents. Although that disclosure took place shortly before the IC's decision, the IC did not take account of it and was probably unaware of it.
101. Closed part of the IT proceedings. The IT was hearing an appeal against the refusal of the IC to direct that certain documents should be provided to DK which the NP and the IC had held should not be provided. In conformity with the IT and the FtT(GRC) procedure, the IT had before it at the hearing of the original appeal two folders of documents comprising the open folder of documents which all parties were entitled to see and refer to and a closed folder which only the IT and the representative of NP who held the documents and who was resisting their disclosure could see. The IT went into closed session and excluded DK in order to consider and hear submissions about these documents. Finally, the IT delivered a full open decision and also supplemented that with a closed decision, referred to by the IT as a confidential annex to the open decision, which was placed on the IT case file with a copy being sent to the NP.
102. This confidential annex was stated in the open decision to have explained why the three factual witness statements, which with the two further expert's reports remained in issue, were personal data. This resulted from an application of the principles that had been set out and explained in the open judgment. The confidential annex also explained that this personal data was not subject to the public interest exemption provided for in section 30(1) of the FOIA. DK would not have seen nor been provided with a copy of the closed decision nor would he have heard or been aware of the contents of the closed submissions and discussion. However, the UT judge would have been provided with the tribunal file containing the closed file and the confidential annex to the open decision and his decision refusing permission would have been based on what was set out in both the open judgment and the confidential annex I have not been provided with any of the closed material or of the confidential annex but I have not seen the need to refer to it or call for it from the Upper Tribunal since I consider that I can fairly decide DK's application without seeing either of these sources.
103. DK appealed the IC's FOIA decision and the notice of appeal covered the entirety of his FOIA request. He also, at about the same time as he served his notice of appeal, sought an assessment of the DPA disclosure from the IC. The IC informed DK of the result of his assessment which DK has not challenged. NP supplied further documents under both the FOIA and the DPA in several tranches, the last of which occurred at the beginning of the first day of the IT hearing.
104. The result of this drip-feed of disclosure was that, following the last tranche of disclosed material, all that remained undisclosed and for decision were the district judge's and the two solicitors' representatives' factual and the two technical witness statements. Since the IT, the UT and the Administrative Court have not been told why NP disclosed any of the data under the FOIA and the DPA, it is not possible to ascertain why this disclosure was given even though NP's refusal decision to withhold all the requested data had been upheld by the IC. DK contended at all three stages of the disclosure proceedings that none of the data was personal data and all of it should therefore be disclosed. Despite these changes of position, the IT considered and decided the appeal in the same way that the IT and NP had reached their respective decisions notwithstanding that its decision related to a small fraction of the data that the NP and the IC based their decisions on.
105. DK lodged an appeal against the IC's Decision Notice on 14 April 2008 seeking a substitution of the IC's Decision Notice with a Decision Notice providing for the disclosure of all five witness statements. There followed a number of directions hearings and pre-hearing reviews by way of telephone conferences and three sets of directions were issued by the IT. A two-day hearing took place on 30 and 31 March at which DK represented himself and the IC, as the respondent, and NP, as an additional party, were separately represented by counsel. The IT decision, promulgated on 14 April 2009, was confined to the remaining disputes concerning the existence of certain documents and as to whether five statements taken during the third inquiry, including the district judge's statement, should be disclosed. The IT decided that the three factual statements of the district judge and the two solicitors were DK's personal data and were therefore absolutely exempt from disclosure (applying section 40(1)) whereas the two technical statements were not personal data and were in principle subject to exemption as forming part of the NP's investigation into whether the district judge should be charged. However, this was a qualified exemption and should not be given effect to because the public interest in disclosure outweighed the public interest in maintaining the exemption (applying sections 30(1) and 2(2)((b)). The IT ordered their disclosure subject to certain redactions that were also ordered.
106. The reasoning of the IT in its open decision may be summarised as follows:

(1) The IT exercised its discretion to undertake a merits review of the IC's decision under section 58(2) of the FOIA and also considered whether the IC's decision was wrong in law and whether the IC ought to have exercised his discretion differently.

(2) The requested information, being the five witness statements remaining for decision, was "data" within the meaning of the DPA and was recorded information held by a public authority as provided for in section 1(1)(e).

(3) The information in the three factual statements, being those of the district judge and the two solicitors, comprised personal data of DK in that it related to DK, particularly because they concerned the district judge's actions and the outcome of the investigation into those actions, both of which directly affected DK. Moreover, DK was identified by these statements and had supplied the information for the purposes of NP's investigations.

(4) Such information related to DK since it contained a result element in that its use was likely to have an impact on his rights and interests taking into account all the circumstances of this case. That impact included his liability to pay Canon's costs of its involvement in the underlying litigation and the other ways that DK had explained in evidence of the impact as it might relate to him of the investigations into the district judge's actions.

(5) In reaching the conclusion that the three factual statements related to DK in this way, the IT stated this:

"60. We are bound by the Court of Appeal's decision in Durrant. We are required to decide in this case where the mention of the data subject "falls in a continuum of relevance or proximity to the data subject as distinct, say, from transactions or matters in which he may have been involved to a greater or lesser degree."^[54] In order to assist in making our decision we consider we can take into account the notions provided in the Guidance which include those provided by Auld LJ and the Opinion, but we are not bound to do so if they are not of assistance. We note that in other decisions of the Information Tribunal and elsewhere that Auld LJ's notions have appeared to be given more significance than we believe that Auld LJ intended."

(6) The three factual statements were sufficiently proximate to DK to constitute his personal data whereas the other two technical statements were not. This finding was explained in more detail in the confidential annex to the decision which DK, the UT judge and I have not seen.

(7) The two technical statements where, however, found to be within section 30(1)(a)(i) of the FOIA as being subject to a qualified exemption by virtue of being held by the NP for the purposes of an investigation as to whether the district judge should be charged with an offence. The reasons why this decision was reached was explained in the confidential annex.

(8) However, the two technical statements were ordered to be disclosed with certain personal data of the makers of the statements redacted. This decision was reached applying the test in section 2(2)(b) of the FOIA on the grounds that the investigation into the district judge's actions was complete so that the public interest in understanding why the investigation reached a particular conclusion or in seeing that it had been properly carried out outweighed the public interest in maintaining the exemption.

11. The UT permission and review refusal decisions

107. Upper Tribunal District judge Jacobs directed an oral hearing to consider DK's application for an extension of time to lodge his notice of appeal and his application for permission to appeal. Despite the notice of appeal being lodged nearly 3 years out of time, UTJ Jacobs had no difficulty granting DK an extension in reliance on the very lengthy witness statement that he had lodged which explained why the lodging had been held up by a series of procedural hick ups which he was not wholly responsible for. He was particularly influenced by the fact that DK had initially lodged his notice of appeal in the Court of Appeal within one month of the date of the substantive decision and not advised by court officials that he should have lodged it in the Upper Tribunal. The UT judge also granted an extension of time for lodging DK's second notice of appeal in relation to the IT's costs decision.
108. The UT judge dismissed both of DK's applications for permission. The district judge dismissed the substantive decision because:

(1) The IT decided the appeal against DK on two grounds, the personal data exception (DPA section 40) and the information held in relation to a possible offence exception (DPA section 30(1)(a)(i)). DK has to establish an error of law in both grounds in order to succeed in his appeal.

(2) The meaning of personal data is difficult and somewhat nebulous. Since the IT was correct in its decision on the other ground, the district judge would not embark on an analysis of the first ground.

(3) The existence of the possible offence exception was clearly made out since the data consisted of witness statements made as a result of DK's complaint against the district judge. The issue was, therefore, whether the IT erred in law when applying the balancing exercise required by section 2(2) of the FOIA in deciding that the public interest in maintaining the exception outweighed the public interest in disclosing the witness statements. The IT's decision in favour of maintaining the exception disclosed no error of law.

(4) This issue involved an exercise of judgment and the IT gave a clear explanation of why they reached the decision they did which was supported by evidence that they had heard from police officers. The decision was not based on speculation and nothing was overlooked in the decision-making process. It was within the reasonable bounds of a permissible decision.

(5) DK's contention that the first ground should be considered since, if it was found that the IT had erred in applying section 40, it would have been more likely to find in his favour when applying section 30 was not accepted since there was no connection between the section 40 personal data issue and the section 30 balancing of interest issue.

(6) DK's proposed costs appeal has no prospects of success. He had applied for and was granted an award of costs to be paid by NP in the summarily assessed lump sum of £1,000. He contended that the award should be in a sum of approximately £26,000. Any award of costs is exceptional in a FtT, particularly where the claiming party lost the substantive appeal. The reason for an award was because NP had not complied with directions promptly thus causing DK extra time in preparation. The IT, with considerable experience in FOIA cases, reached a decision that that should fairly be represented by an award of £1,000. It provided a clear explanation for that award. That exercise of discretion was well within its permitted discretion and there were no grounds for interfering with it.

109. DK sought a review of the refusal decision on procedural grounds. He contended that the UT judge had decided the application on the basis of there being no error of law displayed in the IT's decision on the section 30 ground whereas he should have decided the section 40 appeal. The UT judge dismissed that contention because DK's appeal could only succeed if he succeeded in showing that there were errors of law in the IT's decision in both grounds. Since he had determined that there was no error in the section 30 ground of decision, it was not necessary for him to decide whether the section 40 ground had any prospect of success.

12. DK's Cart application

110. DK's Cart application was based on the UT judge's error of law in not considering the section 40 issues, in wrongly deciding the section 30 issue at all and in a way that led to his refusing DK permission to appeal and in denying him his article 6 rights to a fair hearing.

F. The Issues

111. This Cart judicial review permission application made under CPR 54.7A gives rise to the following issues:

A. UT Errors of Law

(1) What are the powers of the UT and what possible remedies could it provide in hearing an appeal from the substantive and costs decisions of the IT ("the UT powers and remedies issue");

(2) Whether there is a reasonably arguable case that the UT's refusal and set aside decisions were wrong in law ("the UT refusal and set aside decisions issue"):

B. Points of Law Arising from IT Decision

(1) Jurisdiction and article 6 issues

(3) Whether the IT had jurisdiction to consider DK's appeal (the "FOIA IT jurisdiction issue");

(4) Whether the IT's procedure in placing the three witness statements in a closed bundle, in holding a closed hearing and in delivering a confidential annex to its open decision infringed DK's ECHR article 6(1) rights in depriving him of a fair judicial determination of his right of access to his personal data (the "ECHR article 6(1) issue");

(2) 'Personal data' issues

(5) Whether the three witness statements referred to DK and were "recorded as part of a relevant filing system" and/or were "recorded information held by a public authority" as defined in sections 1(1)(c) and 1(1)(e) of the DPA (the "DPA section 1 relevant filing system and recorded information issues");

(6) Whether the three witness statements are DK's personal data of the kind defined in section 1(1) of the DPA ("the DK DPA section 1(1) personal data issue");

(7) Whether the three witness statements are the individual makers' or other third party's personal data of the kind defined in section 1(1) of the DPA ("the third party DPA section 1(1) personal data issue");

(8) Whether the three witness statements are both DK's and the individual maker's personal data and, if so, what the effect of that is ("the joint personal data issue");

(3) FOIA issues

(9) Whether the witness statements are exempt information as having been held by NP for the purposes of an investigation which NP had a duty to conduct with a view to it being ascertained whether a person should be charged with an office (the " FOIA section 30(1) issue");

(10) Whether, if section 30(1) of the FOIA is engaged, the public interest in maintaining the exemption from disclosure is overridden by the public interest in disclosure (the "FOIA section 2(2)(b) issue");

(4) DPA issues

(11) Whether, if the witness statements are personal data that are absolutely exempt under sections 40(1) and/ or 40(2) of the FOIA, they are or would be disclosable to DK under the DPA (the "DPA disclosure issue");

(5) Overall issue

(12) In the light of the answers to issues (3) – (11), whether DK's proposed appeal to the UT has a realistic prospect of success ("the realistic prospect of success issue");

C. Cart Issues

(13) Whether the proposed appeal to the UT raises an important point of principle or practice ("the important point of principle or practice issue");

(14) Whether there is some other compelling reason why the UT should hear the proposed appeal ("the other compelling reason issue");

(15) In the light of the answers to issues (1) – (14), permission to proceed should be granted under CPR 54.7A(7); and

D. The costs decision Cart application

(16) Whether permission should be granted to proceed in relation to the UT judge's dismissal of DK's application for permission to appeal the IT's costs decision dated 15 June 2009 (the "costs decision application issue").

G. The Issues Discussed

Issue (1) - UT Errors of Law – The UT Powers and Remedies Issue

1 Issue (1)

112. Issue (1) is as follows:

What are the powers of the UT and what are the possible remedies that it could provide in hearing DK's appeal from the substantive and costs decisions of the IT ("the UT powers and remedies issue").

2. How the issue arises

113. The issue seeks definition and clarity as to the powers of the UT and the possible remedies that it could provide if it heard an appeal from the substantive and costs decisions of the IT. This issue arises because the powers of the IT are more extensive than other FtTs. These powers extend to its ability to review the IC's findings of fact, exercise the IC's exercise of discretion afresh and open up and amend an IC refusal notice.
114. An appeal from the IT or the FtT (Information Rights) to the UT may only be taken on a point of law^[55]. Thus, any appeal from an exercise by the IT of would be limited to a consideration of whether the IT had failed in a significant manner to take account of matters it should have taken account or taken into account matters of significance which it should not have taken into account or exercised its statutory powers in a manner that no reasonable IT exercising those powers could have exercised them.
115. A second issue may arise. In this case, neither the IC nor the IT considered several potentially relevant issues including the section 30 issue^[56] which would, to be resolved, involve the exercise of discretion. If the IT should have considered that issue, its failure to do so gives rise to an issue of law. If the UT decides that the IT should have considered that issue but did not consider it, what remedy is available to the UT? This question arises because the UT is not given express powers to undertake that exercise itself and is also not given express powers to refer the issue back to the IT.

3. IT powers in hearing an appeal

116. The powers of the IT before and since its incorporation into the Tribunal structure as a FtT are set out in paragraph 58 of the FOIA and are as follows:

Determination of appeals.

(1) If on an appeal under section 57 the Tribunal considers—

(a) that the notice against which the appeal is brought is not in accordance with the law, or

(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

The Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(5) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

117. A review under section 58(3) involves the IT in hearing evidence, inspecting the relevant data, file or information held by the public authority - including the data sought by the data subject or third party appealing the IC's decision – and then reaching its own conclusion as to, for example, the application of any statutory exemption. That power is an adjunct to the power provided for in section 58(1)(b) that enables the IT to exercise any discretion exercised by the IC differently to the way that the IC exercised it if it considers it appropriate to do so. These powers provide the IT with significantly wider powers to decide cases involving a claim to inspect and be provided with copies of documents than are generally available to FtTs. DK's appeal involved the exercise of both of the powers that I have referred to as well as the additional power to require documents to be redacted before being disclosed to the data subject and the power to substitute a different decision notice to that issued by the IC.

4. Conclusion – issue (1)

118. The IT has the power to consider whether the IC's decision notice was issued in accordance with the law and to decide any point of law arising from the IT's decision. If the IT had failed to consider a particular ground of appeal, such as the section 30 issue, that had been referred to it and which it should have considered because that point was directly relevant to an issue arising out of the decision notice to the effect that it had not been issued in accordance with the law, the IT made an error of law. The UT has the power to consider that point of law and, by necessary implication, has the power to decide the issue itself using the evidence and materials that were before the IT. That power would include power to exercise afresh or for the first time any discretion that the IT could and should have exercised and to review any finding of fact that the IT should have reviewed since these are powers given to the IT by statute. In exercising these remedies, the UT would be confined to the evidence and materials introduced into the first hearing and could only receive fresh evidence if that evidence could not have been introduced at the first hearing.

Issue (2) - UT Errors of Law – The UT refusal and set aside decisions issue

1. Issue (2)

119. Issue (2) is as follows:

Whether there is a reasonably arguable case that the UT's refusal and set aside decisions were wrong in law ("the UT refusal and set aside decisions issue")

2. How the issue arises

120. The UT judge issued a refusal decision refusing DK permission to appeal the IT's decision and a decision refusing to set aside his refusal decision. DK wishes to seek permission to challenge both of these decisions as a prelude, he hopes, to being granted permission to appeal and then appealing the IT's adverse decision. It is a requirement in making a Cart application for permission to challenge a refusal decision that the claimant demonstrates that the refusal decision was wrong.

3. Errors in the UT refusal and setting aside decisions

121. UT refusal and set aside decisions. These two decisions, when taken together, are defective in at least five significant respects.
122. Error 1 – IT decision was made under both sections 40 and 30. The first and principal respect in which these decisions are erroneous is that they both state, and are based on the conclusion, that the IT dealt with DK's appeal under two exceptions, being the section 40 and section 30(1)(a)(i) exceptions. This is a clear and demonstrable error. The IT stated in its conclusion in relation to its consideration of the disclosability of the three factual witness statements under section 40:

"61. Applying the statutory provisions and judicial authority cited above to the facts in this case, we find that three witness statements … [are DK's] personal data … Our finding is explained in more detail in the confidential annex.

Whether S.30 FOIA is engaged?

62. We have found that three of the witness statements are caught by s.40(1) and therefore are absolutely exempt under FOIA. The remaining two witness statements fall to be considered under the alternative exemption claimed, namely s.30."

123. It was therefore either a phantasy or a serious misreading of the IT decision to conclude that the IT had decided that the factual witness statements could not be disclosed. This error was compounded by an apparent failure to appreciate that, sections 40 and 30 of the FOIA are mutually exclusive since section 40 addresses personal data and section 30 addresses data or information that is not personal. The IT could only have decided DK's appeal under one or the other sections. Of course, the IT could have addressed the section 30 issue on a contingent alternative basis. That decision would have had to have been reached on the basis that: "if we are wrong in finding that the three factual witness statements are DK's personal data, what would we then have decided by applying section 30?" Whatever the IT could have done, however, it is clear from its decision that it decided to confine itself to the section 40 issue.
124. Error 2 – Failure to address the IT's section 40 personal data finding. DK was seeking to appeal on one basis, namely on the sole basis upon which he had lost before the IC. He was in other words applying for permission to appeal on the ground that the IT had erred in its decision that section 40 applied on the subsidiary ground that the closed hearing and confidential annex procedure adopted by the IT was unfair to him because he did not have an adequate opportunity to answer whatever points were relied on by the IT in reaching its conclusion that the relevant data was personal. He was entitled to a decision as to whether or not he could appeal on those grounds.
125. The UT judge appears to have decided not to address this ground because, as it was put in the refusal decision:

"The meaning of personal data is difficult and to some extent nebulous. As I pointed out to him, any error of law that the tribunal may have made in applying that exemption would be of no help to him if there was no error in respect of the latter. In other words, the tribunal's decision was supported on the two exemptions in the alternative. I have decided that there was no error of law in respect of section 30. It follows that any error of law in respect of section 40 was not material."

126. This approach led to the UT judge failing to address the only two grounds of appeal put forward by DK because he appears to have been looking for a let out from addressing what he regarded as the difficult personal data issue. This approach was adopted because he had erroneously considered that the IT had also decided the section 30 issue even though the two issues were mutually exclusive and the section 30 issue had not in fact been addressed by the IT as a contingency or in the alternative.
127. Error 3 – Concluding that the IT had found that the section 30 exemption should stand. The UT judge concluded, and stated in terms, that the IT's decision in respect of section 30 was legally sound. In reaching this conclusion, the UT judge was clearly referring to both parts of the presumed section 30 decision, being a decision that section 30 was engaged and a decision as to the balancing exercise that had to be struck between the competing public interests in disclosing and not disclosing the three witness statements. He concluded that this second decision was evidence-based and he referred to the evidence of police officers who had given live evidence at the IT hearing.
128. His reasoning was as follows:

"7. Given the nature of the exercise, it is a difficult (sic) to explain with precision how the balance was struck. It is even more difficult to do so in a way that will convince someone who has taken a different view. Within those limits, the tribunal provided a clear explanation. It set out the factors it had taken into account. Those factors were not based on speculation; the tribunal heard evidence of their significance from police officers. And it took a nuanced approach, recognising that different considerations could apply over time to the same information.

8. I can see no error of law in the way that the tribunal dealt with the balance of interest. The factors it took into account were relevant. There are no other significant factors that the tribunal overlooked. Its conclusion was rational and reasonably open to it; it was certainly not perverse. It was within the reasonable bounds of judgment. And the tribunal explained as clearly as it could how it had exercised that judgment."

129. In fact, the IT did not consider whether the three factual witness statements engaged section 30 nor whether the section 30 exemption should be displaced.
130. The evidence that the police officers gave only addressed, according to the open decision, the public interest in disclosing the expert evidence. Furthermore, in relation to those two experts' witness statements, the IT concluded that the public interest was in favour of disclosure yet the UT judge stated that the IT had decided that the public interest in relation to the application of section 30 to the three factual witnesses was against disclosure.
131. The UT judge therefore decided that the IT reached a section 30 decision about the three witness statements for good reason even though it never considered that matter at all. He therefore made two fundamental errors. Firstly, he erred because he assumed that the IT had jurisdiction to decide the section 30 issue whereas it had no such jurisdiction. Secondly, he erred because he decided the application on the basis that the IT's section 30 decision was open to it and was not therefore reviewable on appeal when, in fact, the IT had not taken a section 30 decision at all.
132. It is possible that this error occurred for one of the following reasons:

(1) The UT judge concluded that the IT had reached a contingent decision about this matter in its confidential annex and only explained that it had reached that decision in that annex;

(2) The UT judge was speculating how the UT would have decided the section 30 issue had it remained a live issue at the hearing because it had found that the data was not personal and so had not had to address the section 30 issue; or

(3) The UT judge was adopting the IT's reasons in deciding that the two technical witness statements should be disclosed under section 30 and transposing those reasons to the non-existent decision under section 30 in relation to the three factual witness statements.

(4) The UT judge had erroneously concluded that the IT had the jurisdiction to decide the section 30 issue even though it had decided that section 40 was applicable.

133. The UT judge's reasons do not suggest that he reached his conclusion on any these somewhat improbable grounds. If he had, he had an obligation to explain why he was adopting the particular approach that he was adopting and provide reasons for doing so. In fact, none of these three possible approaches would appear to be justified, particularly since the IT's section 30 decision was that the technical witness statements should be disclosed whereas the notional section 30 decision adopted by the district judge in relation to the other witness statements was that they should not be disclosed.
134. The most obvious explanation is that the district judge totally misunderstood what the IT had decided and produced a rushed decision based on that misunderstanding as soon as the hearing was concluded which was sent out the following day. What he should have done, if he considered that a decision under section 30 necessarily arose in the appeal he was considering giving permission for, was to consider whether there was a realistic prospect of the UT deciding that section 30 was engaged but that the exception was not displaced even though it was displaced in relation to the two technical witness statements. This would have required him to provide a summary of the evidence received by the IT that would be available to the UT that would support the conclusion that the exception was not displaced. This summary would, if necessary, have needed to have been provided in a confidential annex.
135. Error 4 – Other live issues not considered or decided. The UT judge did not identify that issues (1), (3) – (5) and (7) – (9) arose in the proposed appeal and in consequence did not consider whether permission to appeal should be granted on any of those issues. Indeed, he appears to have been oblivious that these issues would, or certainly might, arise in the actual appeal if it took place.
136. Issue (3) needed to be addressed since it was an issue directly raised by DK in his notice of appeal and his skeleton. He was contending that the closed procedure adopted by the IT was inherently unfair to him and he had no clear idea why it had decided that the factual witness statements had been held to be his personal data. Since the district judge's witness statement was the principal document that he was seeking and was the document that had throughout driven his otherwise successful attempts to obtain discovery of NP's entire investigation file, this was a ground of appeal that had to be considered and addressed.
137. Error 5 – The setting aside decision. DK expressly based his application to set aside the refusal decision on the grounds that the UT had erred in not considering his section 40 grounds of appeal and in only considering the application on his presumed section 30 grounds. His supporting witness statement pointed out that if data was declared to be exempt under section 40 (because it was personal data), it could not be considered for disclosure under section 30. He also stated that the IT had referred to section 30 but only in connection with the two technical witness statements and had never assessed the three factual witness statements under section 30. He concluded by contending that the IT's decision on the public interest test was confined to the two technical witness statements and was in his favour but that that decision was irrelevant in relation to the question of whether the decision regarding the undisclosed material was lawful. These grounds clearly raised issues of procedural irregularity which is one of the statutory grounds permitting the UT to set aside and re-make its previous decision^[57].
138. The previous decision clearly cried out to be set aside and re-made. Instead, the UT judge erroneously dismissed DK's setting aside application in this curt passage which did not address DK's submission:

"[DK's] application alleges procedural irregularity in that I concentrated on section 30 of the FOIA rather than on section 40. I explained why I did so in paragraph 4 of my reasons. The Tribunal had dismissed [DK's] appeal on two alternative grounds. An appeal to the Upper Tribunal could only succeed if neither of those grounds was sound. For the reasons that I explained, the decision was sound in respect of section 30. There was, therefore, no benefit to considering the difficult issue that arose under section 40."

139. I have already explained that the IT did not dismiss DK's appeal on two grounds but only on the first section 40 ground. Therefore, DK could only succeed in his appeal if he first persuaded the UT to set aside the section 40 decision and then, in a succeeding step, itself exercise its own discretion to dis-apply the section 30 exception in a situation where the IC and the IT had not considered that issue at all.

4. Conclusion – issue (2).

140. The UT judge's decisions as to both the permission and the set aside applications are fundamentally flawed. It follows that I must now decide whether DK's proposed appeal to the UT has a realistic prospect of success without the benefit of a sustainable UT refusal decision. That will require me to consider each of the issues (3) – (18) save those which I conclude cannot arise in, and are not raised by, that appeal.

Issue (3) – Points of law – The DPA rather than the FOIA issue

1. Issue

141. Issue (3) is as follows:

Whether the IT and/or the UT had jurisdiction to consider DK's appeal (the "FOIA IT and/or UT jurisdiction issue")

2. How the issue arises

142. This issue arises because of the quite separate and different statutory pathways available to an individual wishing to challenge a public authority's refusal to provide information pursuant to an information request under the FOIA compared to the same individual wishing to challenge a data controller's refusal to provide the same material which is personal data pursuant to a data subject request under the DPA. The FIOA provides for a complaint to the IC and a two-stage appeal from the IC's decision, firstly to the FtT (Information Rights) and, secondly by an appeal to the UT with permission from either the FtT or the UT to the UT. The DPA provides for an application to a district judge of the High Court or county court and by an appeal from that decision to the High Court or the County Court with permission of the deciding judge or a judge of the High Court or County Court and, by way of a second appeal, to the Court of Appeal with the permission of the Court of Appeal^[58]. The UT judge should have considered whether the IT or the UT had jurisdiction to hear DK's proposed appeal given that the IC's decision under appeal was to the effect that the information request referred to him under the FOIA should be treated as having been a data subject request for personal data served under the DPA.
143. There are, therefore, two jurisdictional issues that must now be considered. These are: (1) whether DK can appeal at all and, if so (2) whether he can appeal the substantive issue or only the procedural issue of whether the IC's jurisdictional decision was correct.

3. Analysis of the critical procedural steps

144. Introduction. In this case, DK has always been adamant that none of material that he was requesting was his personal data or, by inference, anyone else's personal data. This view has apparently been fuelled by his belief that he is entitled to obtain copies of the various documents he applied for as information under the FIOA s but would not be entitled to them if they were his personal data that he applied for under the DPA. He never appears to have considered whether this jurisdictional controversy made any practical difference or, in other words, whether he would be denied access to the documents he sought because they were neither disclosable as information nor as personal data.
145. DK's first request to NP was refused because NP considered that it was a request for personal data. DK resubmitted the same request and NP, without explanation, decided that the request should be dealt with under the FOIA but that it should not be disclosed because the section 30 exemption applied and that exemption should not be disapplied. The IC subsequently decided not to hear DK's appeal under section 30 because the three witness statements constituted DK's personal data and that, in consequence, DK's request should be dealt with under the DPA. DK had also made a third request under the DPA. NP accepted the IC's jurisdictional decision and answered the DPA data subject request by disclosing some of the requested documents in a redacted form. NP subsequently disclosed most of the remaining documents it had withheld under all three requests. The IT was therefore left, in an appeal from the IC's decision, with being left to consider whether the five witness statements should be disclosed and decided that three were DK's personal data and two were not, that all five were also the personal data of a third party and that the three factual witness statements should not be disclosed but the two technical statements should be disclosed in a redacted form. It is in that context that the two jurisdictional issues summarised above arise in relation to DK's proposed appeal from the IT to the UT arises.
146. DK's two FOIA information requests. This is a summary of the relevant procedural steps that occurred in relation to DK's FOIA information requests and his DPA data subject request and the subsequent complaint to the IC, appeal to the IT and permission and set aside applications to the UT:

DK's Request for information

(1) 23 November 2006. DK sent NP an FOIA request for information for the communication to him of NP's two investigation reports into DK's complaint against the district judge and other documents. The request was made under section 1(1) of the FOIA.

(2) 24 November 2006. NP sent DK a refusal notice specifying that the information he had requested was DK's personal data and was therefore absolutely exempt under section 40(1) of the FOIA. NP also advised DK, presumably under section 16(1) of the FOIA, that it was possible that the requested information could be provided under section 7 of the DPA and as to how to make a DPA data subject request.

(3) 4 December 2006. DK informed NP that he disagreed that his request for information had been for his personal data. He resubmitted his request for information and stressed that it was being made under the FOIA.

(4) 3 January 2007. NP replied to DK's second request for information with a refusal notice that stated that the information requested by DK was exempt under section 30(1) and 32(1)(c) of the FOIA and that those exemptions would apply. The effect of that refusal was that NP had dealt with the second request for information on the basis that the information was not DK's personal data.

(5) 2 February 2007. DK required NP to conduct an internal review of NP's second refusal notice.

(6) 2 March 2007. NP maintained its second refusal notice.

DK's complaint to the IC

(7) 7 April 2007. DK complained to the IC under section 50(1) of the FOIA that his second request for information dated 4 December 2006 had not been dealt with by NP in accordance with the requirements of Part I of the FOIA.

(8) 10 January 2008. The IC wrote to DK and advised him that the information he had requested from NP was his personal data, that he was therefore closing DK's FOIA complaint and that he would now deal with that complaint as an assessment under section 42(1) of the DPA as to whether NP's processing of DK's personal data was carried out in compliance with the DPA.

(9) 17 January 2008. DK sent NP a data subject request under section 7 of the DPA requesting the communication to him of specified personal data. The request was couched in wider terms than the earlier FOIA requests for information. Unlike the two FOIA requests for information, the data subject request included a request for copies of the witness statements held by NP.

(10) 17 March 2008. The IC issued a decision notice:

(1) That all the information requested by DK was DK's personal data which were subject to the absolute exemption of section 40(1) of the FOIA;

(2) NP was not obliged to comply with the requirements of section 1(1)(a) of the FOIA so that it did not have to confirm or deny whether it held the information requested because the subject matter of the request was DK's personal data; and

(3) The responsibility for determining whether an information request should be dealt with under the FOIA or the DPA rested with NP as the public authority concerned

(4) It followed that NP should have considered DK's request under the DPA.

Steps prior to IT hearing

(11) 25 March 2008. DK received a bundle of heavily redacted documents from NP pursuant to his DPA data subject request.

(12) 26 March 2008. DK requested the IC to undertake an assessment under section 42(1) of the DPA.

(13) 7 April 2008. DK lodged a notice of appeal with the IT on the grounds that the IC's decision notice was not in accordance with the law.

(14) 7 October 2008. DK received a bundle of documents from NP that were communicated under his data subject request.

(15) 17 October 2008. The IC sent DK and NP his DPA assessment. DK has not provided a copy of this assessment to the Administrative Court.

(16) Further documents were disclosed to DK by NP a few days before the IC hearing and on the morning of the first day of the hearing. Following that disclosure, the only outstanding documents that had been requested were the five witness statements.

(17) April 2008 – April 2009. In the words of the IT's decision:

"There were a number of directions hearings and pre-hearing reviews by way of telephone conferences which resulted in three sets of directions being issued by the Tribunal. These were primarily aimed at determining what documents were in dispute. … By the time we arrived at the full hearing there had been further disclosures under the data subject request and under the FOIA request before us including some a few days before the hearing and one at the beginning of the first day. All that remained in issue was 5 witness statements."

The IT hearing

(18) 30 and 31 March 2009. The 2-day IT hearing.

(19) 14 April 2009. The IT's decision notice was promulgated. It:

(1) Confirmed the decision notice dated 17 March 2008 in relation to the three factual witness statements of the district judge and the two solicitors' representatives[

(2) Confirmed the IC's decision that those statements should not be disclosed because they were DK's personal data and, in a confidential annex, provided further details of why this data was his personal data.

(3) Provided a substituted decision with regard to the two technical witness statements with certain passages redacted as being the makers' personal data.

(20) 14 May 2009. DK lodged a notice of appeal with the Court of Appeal against the IT's decision notice. This notice of appeal was transferred by the Court of Appeal to the Administrative Court on 4 March 2010 and by the Administrative Court to the UT in April 2012. DK's grounds and a supporting skeleton were served on the UT on 26 August 2012. The basis of the appeal was that the IT had erred on a point of law in deciding that the three factual witness statements were his personal data. This error had allegedly occurred because the IT had applied an erroneously wide erroneously wide interpretation instead of the meaning that the Court of Appeal had given it in the Durrant decision.

(21) 15 June 2010. IT costs decision.

The UT proceedings

(22) 4 March 2010. Transfer of proceedings to Administrative Court.

(23) April 2012. Transfer of case file to the UT.

(24) 4 September 2012. Refusal decision of the UT

(25) 1 October 2012. Setting aside refusal decision of the UT.

Judicial review claim

(26) 11 March 2013. Claim for judicial review

4. Jurisdiction

147. DK's jurisdictional difficulty in this case is that his relevant request for information was made under the FOIA and he insisted that it should not be processed as personal data under the DPA. This request followed immediately upon an identical request that he had also under the FOIA which NP had declined to respond to with a decision that stated that that request should be treated as a data subject request under the DPA. Despite that, NP accepted the second request as being made under the FOIA and decided that the information requested should not be disclosed since it was exempt from disclosure under the FOIA. It was not clear why, given its first answer, NP answered the second request in this way given that DK's request could not be made under both the FOIA and the DPA and NP had already decided that the DPA was the Act that should be used.
148. Having received NP's second decision taken under the FOIA, DK sought to challenge it on the grounds that the information he had sought was incorrectly held by NP in its second decision to be exempt from disclosure under section 30 of the FIOA. DK contended that the section 30 exemption should have been disapplied by NP. The IC appreciated that he might not have had jurisdiction to deal with a complaint raised in relation to this second refusal given that NC's first refusal appeared to be a valid refusal and DK's remedy against that first refusal should have been by way of an application to the court for disclosure of the documents under section 7(9) of the DPA.
149. The IC first considered whether he had the jurisdiction to proceed with DR's complaint. His decision was to the effect that he did not have jurisdiction. The IC's decision spelt out very clearly that responsibility for determining whether a request for information should be considered under the FOIA or the DPA rests with the public authority and not the applicant^[59]. He also made it clear in his decision that if the public authority concluded that the information was personal data, it should refuse to deal with the disclosure request for that information under the FOIA and should only proceed to deal with it under the DPA. That conclusion is clearly correct given the way that the FOIA excludes personal data from its ambit and from the complaint and appeal structure from FOIA decisions.
150. The decision of the public authority that a request should be processed under the DPA even if it was made under the FOIA is final and not subject to appeal. An applicant must accept the public authority's decision that the application should proceed under the DPA and can only obtain disclosure of the personal data by way of a new application under the DPA. Similarly, if the application had been made under the DPA and the public authority decided it could not be dealt with under that Act, the applicant should reapply to the public authority under the FOIA.
151. In this case, the IC was faced with the procedural difficulty that the public authority's decision being challenged was being challenged because NP had correctly applied the FOIA but had incorrectly exercised its discretion under that Act whereas the IC was of the opinion that the FOIA was inapplicable for all purposes. The IC therefore decided the application under the only section of the FOIA that his jurisdictional decision permitted him to use, namely section 40(1) which provides that:

"Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject."

The effect of that decision was to confirm the IC's view that the application should never have been dealt with under the FOIA and that, unless that decision was overturned, DK's only remedy was to apply to the court under section 9(7) of the DPA.

152. DK's appeal to the IT was, therefore, limited in jurisdictional terms to the issue of whether the IC was correct to conclude that section 40(1) applied to his FOIA request. If it did, DK would then have to make a separate application to the Courts under section 9(7) of the DPA. In deciding that narrow issue, the IT was limited to points of law and the only point of law that arose was whether the IC was Wednesbury unreasonable in reaching the decision that had been reached, in other words whether the decision was erroneous in law or had taken into account materials that should have been ignored and vice versa or was irrational. The IT, in considering that question, was not considering whether or not the IC should have exercised his discretion differently since the question was one of fact and not one of discretion^[60]. However, it did have jurisdiction to decide whether the decision was Wednesbury unreasonable and it was entitled to decide that by hearing evidence if it chose to. The IT heard evidence, considered the documents in both the open and closed bundles and concluded that the materials were subject to section 40(1) with the consequence that it had concluded that the IC and itself did not have jurisdiction to decide whether the personal statements should be disclosed to DK. However, having decided that section 40(1) did not apply to the experts' reports, it had the jurisdiction to decide whether they should be disclosed or disclosed in a redacted form. The IT went on to decide those questions and ordered their disclosure in a redacted form.
153. DK then sought to appeal the section 40(1) decision to the UT. The only basis for such an appeal was whether the IT made an error of law in deciding the section 40(1) decision.

5. Conclusion – IT's and UT's lack of jurisdiction

154. The IT have jurisdiction to deal with the appeal but its jurisdiction was limited to considering whether the IT's section 40(1) decision was vitiated by an error of law.

Issue (4) – Points of law - The ECHR article 6(1) issue

1. Issue

155. Issue (4) is as follows:

Whether the IT's procedure in placing the three witness statements in a closed bundle, in holding a closed hearing and in delivering a confidential annex to its open decision infringed DK's ECHR article 6(1) rights in depriving him of a fair judicial determination of his right of access to his personal data (the "ECHR article 6(1) issue")

2. How the issue arises

156. This issue was clearly raised by DK in his notice of appeal and his supporting witness statements and submissions. If the issue is expressed by reference to the facts of this case as follows: "whether the IT's procedure in placing the three witness statements in a closed bundle, in holding a closed hearing and in delivering a confidential annex to its open decision infringed DK's ECHR article 6(1) rights in depriving him of a fair judicial determination of his right of access to his personal data".

3. IT and FtT practice and procedure – closed material, hearing and decision

157. Identifying the issue. The powers available to the IT and the practice and procedure relating to their exercise are set out in Rules 14 and 38 of its Rules of Procedure which are supplemented by an explanatory Practice Note issued by the IT some years ago which is available on its website and is worth quoting from. These Rules and the Practice Note are set out in the annex to this judgment. The Practice Note is dated May 2012 but it reproduced the practice that had been followed in the IT for some years previously and it mirrored the practice that the IT applied in this case in April 2009. These procedural provisions are underpinned in certain cases by specific provisions of the FOIA and DPA which authorise the withholding of information or data in defined situations^[61]. This entire regime authorising the withholding of access to personal data is underpinned by provisions in the Directive authorising the withholding of data where this is reasonable necessary and proportionate.
158. The IT and its successor FtT have developed and adopted various practices for the confidential consideration of documents containing personal or sensitive material. The relevant features of this practice, all of which were adopted by the IT in this case, were as follows:

(1) The NP supplied copies of the documents and information that it was not prepared to disclose and which the IC had directed should not be disclosed in a closed bundle to the IT. An open bundle of those documents and information that had been disclosed to DK were provided in an open bundle to both the IT and DK.

(2) The IT held an open hearing that was open to the public. This hearing took oral evidence and considered the material in the open bundle and all other relevant documents common to the parties in public. At an appropriate moment during the hearing, the IT went into closed session. DK and the public were excluded from the closed session and the IT considered the closed bundle and heard in private closed evidence and submissions from the two counsel representing, respectively, the IC and NP in the presence the other members of the legal teams representing, respectively, the IC and NP and with no other person being present.

(3) The hearing was then re-opened and the remaining stages of the hearing took place.

(4) The open decision was based on the open hearing and open bundle and a summary of what had occurred during the closed hearing and of the closed bundle documents. References to the closed materials did not reveal the contents of the closed documents. The decision contained a confidential annex which was said in the open decision to explain its decision that the three factual witness statements were sufficiently proximate to DK to constitute his personal data.

(5) The open decision was provided to all parties, the confidential annex was only provided to the IC and NP. Both the open decision and the confidential annex were placed on the IT's file along with the closed bundle of documents.

(6) At the hearing of the UT's determination of DK's application for permission to appeal, the closed decision and the closed bundle were not referred to – since DK had never seen these documents – but the IT file was available for the UT judge but he did not consider or take account of its contents in reaching his decisions as to the application for permission and for a setting aside of the permission decision.

159. The documents remaining in issue. The IT decision was only concerned with three statements and two experts' reports that had been provided to NP during their inquiries into DK's complaint against the district judge. The principal document that DK was seeking a copy of were two statements made by the district judge on different occasions to two different investigating police officers. The other two statements were provided by two representatives of the solicitors who acted for the defendant Canon (UK) Ltd at the hearing before the district judge and two technical reports concerned with forensic examinations of the tape that DK contended had been criminally interfered with. DK's notice of appeal to the IT had also put further documents in issue but NP had disclosed all of them by the time of the IT hearing. The IT dismissed DK's appeal in relation to the three factual witnesses' statements and allowed it in relation to the two technical reports, albeit with some redactions first having been made to those reports. The IT dismissed the appeal on the basis that the absolute exemption from production provided for by section 40(1) was applicable to the three statements. This was also the first of the two bases for NP's decision to refuse DK's disclosure request and the basis relied on by the IC in dismissing his appeal from that refusal decision. Having decided the appeal on that ground, the IT did not consider DK's second ground of appeal, namely whether the qualified exemption provided for by section 30(1) should be disapplied.
160. The IC's Director of Data Protection Practice gave written evidence to the IT at the hearing to the effect that the TGN was consistent with the Opinion. The Director also gave written evidence about the advice he gave to the team leader of the ICO team dealing with DK's appeal to the IC as to whether these statements constituted personal data about DK. His advice was based on the contents of these statements and upon the contents of other requested information that DK was seeking from NP and which NP had subsequently disclosed to DK. The IT also considered all the requested documents relating to NP investigation of DK's complaint of the district judge's alleged criminal conduct including those that NP was at that time still resisting providing to DK. These documents were placed in two separate bundles, the first being the open bundle of documents that had been disclosed by the NP prior to the hearing and the second being the closed bundle containing the documents that NP was still resisting disclosing to DK. The IT also heard evidence from DK and from the officer most actively involved in the third and most substantial investigation of DK's complaint NP had undertaken, from the officer who dealt with DK's FOI request and from the officer who was a member of NP's Intelligence and Information Department at the time of the investigation.
161. It is clear, therefore, that in reaching its decision the IT took into account the contents Opinion and the TGN, the decision in Durrant, the evidence of the IC's Director of Data Protection Practice, the contents of both the open and closed bundles, the evidence of DK and the three NP officers who gave evidence. NP and the IC were separately represented by different counsel and each counsel provided detailed submissions in open session and further submissions in closed session when the contents of the closed bundle were considered in the absence of DK. Detailed and well-structured submissions were also presented in open session by DK who had clearly done a considerable amount of research into the relevant legal principles that the IC should apply which he made use of in his written and oral submissions. The IT that determined DK's appeal was a particularly experienced tribunal. Its chairman was the principal district judge for information rights and the other two members of the tribunal were also experienced in the working of the FOIA.

4. Article 6 and closed and confidential material

162. The IT's closed material procedures may need to be refined in the future to take account recent changes in the law that have narrowed the procedure that it is permissible to apply to closed hearings and materials to enable a tribunal such as the IT to conform to article 6 of the ECHR^[62]. These more onerous requirements are not currently practised by the IT and any refinement could be introduced without any change to the IT's rules of procedure. Such amended and more onerous requirements include the greater use of redaction, the provision of a gist which summarises the relevant information or data without disclosing the identity of third parties or any particularly sensitive material, the use of a special advocate^[63], the conduct of hearings without the tribunal seeing the confidential material and the use of a more limited confidential procedure in more limited circumstances than hitherto. Since I have concluded that no injustice or unfairness occurred in this case by the adoption of the full range of closed and confidential procedures available to the IT, it has not been necessary to consider the extent to which those practices are not article 6 compliant or in possible need of review to ensure compliance with the Supreme Court judgments in Bank Mellat (No 1).
163. Neither the confidential decision nor the closed bundle was provided to the Administrative Court and I have not seen them. Moreover, DK has not provided the Administrative Court as part of this Cart application with copies of the documents that have been disclosed to him by the NP, nor the open bundle nor copies of the two technical experts' reports in their redacted form which the IT directed should be disclosed to him. Given the nature of DK's challenge to the IT's decision, DK should have supplied the open bundle and such disclosed documents as were not in that bundle to the Administrative Court. It was also open to DK to apply to the Administrative Court to direct that it should be provided with all the open and closed documents held by the IT but he did not make any such application although it is clear that he was aware that he could make such an application. These apparent omissions are not as serious as it might appear because DK has supplied what amounts to a gist of the three relevant witness statements to the Administrative Court in connection with other applications in the three other judicial reviews and all outstanding applications in these claims are now being heard together. I have therefore been able to use material filed in these other claims when considering this Cart application and the related disclosure application that is also being considered by me.
164. I can of course direct the UT to supply me with all the documents on its case file for this case which would include both the open and closed files and the confidential annex that it holds on file^[64]. I have carefully considered whether I should obtain the UT files but I have decided that this Cart application and the related discovery application can be fairly decided without a sight of either the closed and confidential or the open and previously disclosed material^[65].

5. DK's submissions

165. DK contends that:

(1) The IT should have allowed submissions from both parties about the witness statements to have proceeded in open court. No part of the hearing should have taken place in private with him being excluded. The IT should have concluded the hearing and only then examined the disputed documents in private without the parties or their representatives being present.

(2) The IT should have told DK what personal data about him was contained in the witness statements. Without that, he is unable to apply for disclosure of the statements under the DPA.

(3) The IT should also have prepared a summary of the confidential annex for the benefit of both parties so as to clarify the legal basis of their decision. DK also contended that he should be permitted to see the redacted parts of the two witness statements that the IT permitted disclosure of.

These steps would have allowed a proper and fair hearing and consideration of the issues by the parties without prejudicing the position of NP.

166. DK's submissions as to the steps that the IT should have adopted have considerable force. The IT appears to have adopted all of the confidential measures that it commonly adopted at that time without providing any satisfactory explanation as to why each of the measures was necessary and proportionate. Moreover, the IT does not appear to have considered a one-off set of confidential measures that would have provided for the minimum necessary closed procedure and so as to meet the justice and fairness of the proceedings. It is to be hoped that the IT will, sometime soon, re-examine and update its closed and confidential procedure and guidance to ensure that it is compliant with articles 6 and 8 and in conformity with the Supreme Court guidance in Bank Mellat (No 1) as soon as possible^[66].

6. Whether DK was unfairly treated in this case

167. For the reasons already given, the only conceivable issue that the IT had jurisdiction to hear, and that issue was not ultimately open to it, was whether the decision of the IC that DK's request for information should be dealt with as a data subject request under the DPA was Wednesbury unreasonable. It was unnecessary for the Administrative Court to see the disputed documents since the only basis of challenge is that the IT applied the decision in the Durrant case incorrectly. That issue can be determined without reading the documents, particularly since DK has now disclosed to the Administrative Court a number of documents he obtained from NP's investigation files as part of the DPA provided by NP. He has also served a number of witness statements in one or more of the four outstanding judicial reviews which contain extensive material about the desired outcome of his referral of the district judge to NP and his motives in making that referral. The documents obtained from NP provide a sufficient gist of the contents of the witness statements that it is neither fair nor reasonable to seek and obtain sight of the three outstanding statements.
168. Available evidence of the contents of the three statements. DK described himself in his data subject request as being:

"(i) a person reporting an offence or incident; (ii) a witness to an offence or incident and (iii) a victim of an offence."

He described his motives in reporting the district judge to NP and in requesting NP to conduct a criminal investigation of the district judge's conduct and to be interviewed under caution as being for the purposes of persuading the police to charge the district judge, to prosecute him and to ensure that he was convicted. I will set out a brief summary of the currently available evidence of DK's motives in reporting the district judge to the police. I will also take into account that DK has failed to disclose much of the evidence that he has obtained from NP or his own statement made to the police a few months after he initiated the police investigations into what he considers to have been the district judge's tampering with the court tapes and his lying to the police.

169. The district judge's statement and the police notes of the interview. A highly significant document was disclosed to DK by NP and by DK to the Administrative Court. It is the Case Summary prepared by the officer in charge of the third and final investigation conducted by NP which was sent to the CPS to obtain its charging decision as to whether NP should charge anyone involved in the subject-matter of DK's complaint. It is undated but has been dated by DK as being prepared on or about 12 May 2006. The introductory section includes these extracts:

"In relation to this matter, a judicial review process relating to complaints made by [DK] against staff at Newcastle Law Courts in particular the court manager [name supplied] has been instituted^[67]. … The investigating officer has liaised with the CPS who confirmed that a file of evidence should be forwarded for decision, in the light of the nature of the allegation and in particular that it involves a district judge.

… District Judge [named]

Statement dated 08/02/06: This statement is short and succinct he does not address any specific allegation but does deny any wrong doing on his part. An officer report by the o[fficer] i[n] c[harge] detailing what was said during this interview is attached at annex C as is (sic) the Judge's notes.

The crux of this report is that whilst reading through the transcript the Judge identified a typing error to the effect that the word "effect" would in actual fact be "perfect" meaning that he would amend the order. The Judge also explained that a Judge could amend an order but not a judgment, therefore he was within his rights to change the order. Judge [named] stated that the fact that he could change an error is a basic fact within civil law not one he would ever get "confused" with.

In response to the allegation that the tape of the hearing had been tampered with and by definition this would have been done by or on behalf of Judge [named], the Judge finds the allegation outrageous and scandalous."

170. In an internal memo from the interviewing officer to the investigating officer dated 12 February 2006 from which this Case Summary was obviously prepared, the interviewing officer includes this comment:

"[The district judge] … explained … so the following was established:

1) [The circuit judge] had not made an order for costs, as a result the hearing on 27/01/04 which was to assess costs could not continue.

2) [The district judge] cannot change another judge's judgment but can change an order if necessary.

3) [The district judge] identifies this during the hearing on 27/01/04 with the assistance of all parties and states that he will perfect the order of [the circuit judge] so as to reflect the issue of costs.

…

As a result of this interview it was established that [the district judge] could change/add to the order of [the circuit judge] and that he in fact said as much in the hearing dated 27/01/04. There may have been a misinterpretation by the other parties when [the district judge said the following:

'… and I think what needs to happen is the judgment from [the circuit judge] needs to be perfected certainly in relation to the costs and needs to be served on [DK]'

In layman's terms the above sentence is saying that the [district judge] will add to the order derived from [the circuit judge's] judgment in relation to costs to allow [DK] to appeal costs (copy of [district judge's] notes obtained detailing this).

The subsequent order for costs was typed up the same day and sent out on 28/01/04 to all the relevant parties.

This explanation would appear to remove any motive for the subsequent allegation revolving around the audio tape."

171. One of the two legal representatives of the defendant at the hearing provided important corroborative evidence of the reported views and summary of the statement of the district judge in two letters to DK dated 8 October 2004 and 11 April 2005. In the first, the legal representative stated:

"…we confirm that [the district judge] adjourned the hearing on 27 January 2004 as he did not feel able to amend the Order made by [the circuit judge] under the slip rule.

[The district judge] considered at the hearing that he did not have jurisdiction to amend.

As outlined in the judgment of [the senior civil judge at NCC in his judgment refusing DK permission to appeal the district judge's amendment order under the slip rule] on 27 April 2004, it is presumed that the [district judge] (after consulting the civil procedure rules) subsequent to the hearing on 27 January 2004, considered that he did have jurisdiction after all."

In the second, the legal representative stated:

"In the course of our meeting with [the interviewing officer], we confirmed that part of the transcript that has been recorded in our attendance note does not appear within the court transcript.

The element that is missing from the transcript is our note referring to [the district judge's] comment that he would have to liaise with [the circuit judge] concerning amendment of the Order. From our note, these comments were made at the end of the hearing and it appears to us it may well be the case that the tape had run out, and that is why these comments have not been recorded in the transcript.

We do not agree with your comment that there are significant gaps in the transcript at crucial points in [the district judge's statement.

We do not believe that the information that is contained in our attendance note that is missing from the transcript in any way effects the outcome of that hearing, or subsequent hearings."

172. DK also disclosed a copy of the independent technical expert's report of her examination of the cassette and tape allegedly tampered with. Her conclusion was that:

"During the section of the recording alleged to have been edited, there are no features which I would expect to observe had the recording been stopped and restarted, or over-recorded, and no changes or breaks in the background noise which may indicate editing through cutting and splicing the tape and then copying a new tape. There is also no evidence that the tape is a copy.

There is no evidence that the recording has been digitally edited. In order to digitally edit the recording, specialist equipment and a good level of operator skill would be required to leave no traces of edits and retain the four track configuration and speed of the recording."

173. This evidence supports the conclusion arrived at by both the police officers carrying out the investigation and the CPS who effectively took the decision not to charge anyone since there was no evidence that a criminal offence had been committed that:

(1) The tape had not been tampered with.

(2) The district judge made it clear at the hearing that the circuit judge's order could and should be perfected by an amendment.

(3) The district judge recollects that he made it clear that he would perfect the amended order after the hearing, the transcript suggests that that statement was made, if made at all, after the tape had run out or after it had been switched off. The statement, whether made during or at the end of the hearing, was misunderstood by DK and the two legal representatives to mean that [the circuit judge] would perfect and amend the order. This possibility is reinforced by a statement in the transcript to the effect that "the court" could amend the order which might be considered to be an ambiguous reference either to the circuit judge or to the district judge.

(4) If the district judge's recollection is incorrect, the only other feasible possibility is that he made the statement that only the circuit judge could amend or change the order at the end of the hearing but after the hearing researched his jurisdiction by reading the civil procedure rules, he realised that he did have jurisdiction (which the CPRs clearly gives him) which he could exercise without recalling the hearing or notifying the parities (which he could) and proceeded to issue an amended costs order;

(5) The district judge amended the order on the same day as the hearing after it had been concluded and it was typed up in its amended form the following day and sent out to the parties by the court staff; and

(6) The district judge had no intention or motive to do anything other than apply the CPRs to an order which had mistakenly failed to record the circuit judge's intentions as expressed in the circuit judge's judgment and, as held by the senior civil circuit judge in the court in question in DK's subsequent application for permission to appeal the amendment order, the district judge had the jurisdiction to amend the order and was correct to amend the order in the way that he did.

174. The police investigation file was passed to the CPS who took into account its entire contents including the statements of the district judge. The charging decision was taken by NP on the advice of the CPS. The advice of the crown prosecutor whose advice not to prosecute was followed by NP included this advice of that crown prosecutor:

"… there is no evidence in respect of which a charge of attempting to pervert the course of justice, conspiracy to pervert the course of justice or any other criminal offence could be based."

7. Conclusion – issue (4)

175. Given this information about the contents of the district judge's statement and the motives of DK in reporting the district judge to the police summarised above, a court or tribunal has sufficient knowledge of the contents of the statement to enable it to decide whether it contains the personal data of DK or of the district judge or of any other third party. It was therefore not necessary for either the UT or the Administrative Court to see and read the contents of any of the five statements that remained in the closed bundles or to be informed of the contents of the submissions given in closed session or the closed judgment about this matter. No unfairness has, therefore resulted from the IT's adoption of its closed hearing procedures.

Issue (5) -'Personal data' issues – DPA section 1 relevant filing system and recorded information issues

1. Issue (5)

176. Issue (5) is as follows:

Whether the three witness statements referred to DK and were "recorded as part of a relevant filing system" and/or were "recorded information held by a public authority" as defined in sections 1(1)(c) and 1(1)(e) of the DPA (the "DPA section 1 relevant filing system and recorded information issues")

2. How the issue arises

177. The definition of "data" in the phrase "personal data" in the DPA is set out in section 1(1)(a) and it includes five types of information including:

"(c) information which is recorded as part of a relevant filing system or which the intention is that it should form part of a relevant filing system"

and

"(e) information which is recorded information held by a public authority and does not fall within paragraphs (a) to (d)".

178. DK, in his grounds of appeal lodged with the UT, contended that the IT had erred in not considering whether the three statements formed part of a relevant filing system since, unless they did, they could not be "data" to which the DPA applied. In support of this contention, DK relied on a lengthy passage in Auld LJ's judgment in Durrant^[68].
179. The IT had not ignored the definition of "data" but had concluded that the relevant sub-paragraph that was applicable was sub-paragraph (e). The decision stated:

"It is accepted by all the parties that the requested information constitutes "data" within the meaning of the DPA in that – even if it does not fall within paragraphs (a) – (d) - it will fall within paragraph (e)."

3. Application of "data" definition to this case

180. The principal requested information in issue were at least six separate documents compendiously described as the district judge's statement that had been given to, or taken from him by, investigating police officers who were gathering evidence to enable a decision to be taken as to whether there was sufficient evidence to show that the district judge should be charged with a serious criminal offence. The six documents were, or appeared to be two separate statements made to two separate police officers, one in 2005 and one made on 8 February 2006. The first statement may not have existed as a formal statement but instead appears to have been found in notes or a draft made by the investigating officer whilst interviewing the district judge during the second investigation that was carried out. The second statement appears to have been a short formal statement which was signed or acknowledged by the district judge during or after being interviewed by a different investigating officer in the third investigation. The district judge is reported in the investigation report to have denied any wrong doing. The judge is also recorded as having made notes during or in advance of the interview and the interview was conducted by reference to the transcript of the hearing that had been typed out and was available to the district judge and the investigating officer whilst the interview proceeded. The investigating officer appears to have taken a detailed written note of the entire interview. The interviewing process and a summary of, or evidence of the contents of, what the district judge said and provided by way of a draft or final statement were described and provided in the respective case summaries prepared by the investigating officer.
181. The salient documents obtained during each investigation were placed in a file whose only contents were the statements, notes and documents obtained by the investigating officer whilst investigating DK's complaint that the district judge had perverted the course of justice. The documents obtained in the second investigation formed part of this file which had had added to it the additional documents obtained in the third investigation. This file was forwarded to the CPS with the case summaries added to it to enable the CPS to advise whether there was evidence which could base a charge of attempting to, or a conspiracy to, pervert the course of justice or any other criminal offence. The file, by the time it reached the Divisional Crown Prosecutor, contained the case summary and witness statements, the correspondence between DK, the complainant, and the police and HM Court Service, the documentary exhibits provided by DK and the officer report from the investigating officer to his Detective Sergeant dated 12 February 2006^[69].
182. The IC had available the entire file as a discrete file within a larger collection of documents and he concluded that the district judge's witness statement or statements formed part of that file and that the entire contents of that file constituted the personal data of both the district judge and DK. The IC case worker concerned with the IC's decision notice setting out the IC's rejection of DK's complaint gave detailed evidence to the IT which it summarised in its open decision. He described the file as containing the information that was used to inform a decision as to what, if any, action should be taken against the district judge in relation to his alleged conduct which had directly impacted upon DK. In addition, DK was identified with much of the information and/or had supplied it himself for the purposes of the police investigation. The file was sufficiently compact and focused that the entirety of the file was used for the purpose of considering whether the district judge should be charged and the IC's team leader did not consider it necessary to carry out a detailed page-by-page analysis of the information but, instead, confined his consideration to an analysis of whether the information related directly to DK's allegations.
183. It followed that the IC had no doubt that the information then being requested and decided upon was "data" because it fell squarely within the statutory definition of a "relevant filing system" and hence within subparagraph (c) of section 1(1) of the DPA. This definition is:

"… any set of information relating to individuals to the extent that, although the information is not processed by means of equipment operating automatically in response to instructions given for that purpose, the set is structured either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible."

The file in question was clearly in its entirety within that definition since it comprised:

(1) "a set of information";

(2) whose contents related to two individuals – the district judge complained about and DK as the complainant;

(3) whose contents were structured into four types of information as identified in the Crown Prosecutor's advice;

(4) whose contents were structured by reference to individuals, being the district judge and the complainant who had supplied much of the contents of the set;

(5) whose contents were structured and by reference to criteria relating to individuals, being the district judge's alleged criminal conduct and the details of the complaint made by DK in his detailed statement also contained in the file; and

(6) whose contents were structured such that specific information relating to a particular individual was readily accessible, being the district judge's statements, comments and views and DK's statements, comments and views and documents supplied by him.

184. By the time that the IT hearing, the only parts of that file that had not been disclosed were the five witness statements. These had come from the file but since the file had been dissipated by the disclosures that had already occurred, the statements could equally be regarded as being discrete and unfiled documents. The IT did not have to analyse which of the two subparagraphs these statements came within, if at all, since, as it recorded in the decision:

"It is accepted by all the parties that the requested information constitutes "data" within the meaning of the DPA, in that – even if it does not fall within paragraphs (a) – (d) – it will fall within paragraph (e)."

185. DK now seeks to challenge the IT's decision on grounds that include a challenge to the findings that (1) it was accepted by him that the information constituted data; (2) that that was because the witness statements fell within subparagraph (e) and (3) because they did not fall within subparagraph (c) either. His conclusion was that the statements were therefore not "data" so that the DPA was inapplicable.

4. Discussion

186. DK's submissions did not develop his contention that he had accepted that the information was data or that the information did not fall within paragraph (e). I will assume that the IT was in error in treating this issue as no longer requiring a decision and turn first to DK's contention that subparagraph (c) was inapplicable. His submission relied heavily on Auld LJ's judgment in Durrant. Auld LJ's judgment concluded that the information in that case was not recorded as part of a filing system because the filing system was not structured. That case is, on analysis, not relevant to this case. The data controller in Durrant held the relevant documents in hard copy in a paper filing system which was not structured in a way that enabled specific information relating to a particular individual to be readily accessible. The relevant documents were therefore held not to fall within subparagraph (c). However, in this case, as already explained, the relevant documents were readily identifiable parts of a file that was part of a relevant filing system as defined in paragraph 1(1) of the DPA.
187. The IT considered the relevant subparagraph to be subparagraph (e) given the parties acceptance that they were data and the fact that they had become clearly identifiable separate documents that no longer formed part of a file. The statements were therefore held by a public authority and each statement was "recorded information". It is significant to be aware of the fact that subparagraph (e) was added to the DPA by way of an amendment contained in the FOIA because the definition of data in the DPA as originally enacted did not cover completely unstructured records held by a public authority such as planning applications or permissions. Thus, subparagraph (e) was added so as to cover such records.
188. The IT's finding that these individual statements, held in the file relating to the police's investigation of DK's complaint, were recorded information held by NP, is an unimpeachable finding.

5. Conclusion

189. The statements were part of a relevant filing system and fell under subparagraph (c) and the IT were entitled to treat them as falling under subparagraph (e) for the purposes of the hearing since the parties had accepted that they were data and, at the time of the hearing, having been separated and isolated, they could reasonably be treated as being recorded information held by NP and falling under subparagraph (e).

Issue (6) – 'Personal data' issues - DPA section 1(1) 'personal data issue'

1. Issue (6)

190. Issue (6) is as follows:

Whether the three witness statements are DK's personal data of the kind defined in section 1(1) of the DPA ("the DPA section 1(1) personal data issue")

2. How the issue arises

191. In order to conclude that the relevant statements were DK's personal data to which section 40 was applicable, the IT had to decide whether their contents fell within the definition of personal data as interpolated by the WPO, the TGN and the findings in Durrant^[70]. DK submits that the IT wrongly found that the contents of the statements "related to" him. This was a strained application of that statutory definition and it was applied by the IT because they had not followed the guidance in Durrant as to the application of this somewhat nebulous phrase but had followed the erroneously wider definition provided by the TGN which had been drafted subsequent to the promulgation of the Durrant decision and that definition did not, as it should have done, follow and apply the relevant passages in Auld LJ's judgment.

3. DK's submissions

192. DK submitted lengthy written submissions on this issue. These submissions were addressed to two related matters, the IT's reasons for finding that the contents of the statements contained information that related to DK and enabled him to be identified and his contention that the IT's approach failed to give effect to the Durrant case that it was bound to follow. The IT's reasons are summarised above^[71]. DK contended that the only references to himself in the statements must have been the personal views of the witnesses rather than information about him. That information could not have been biographical in any significant sense and could not have had him as its focus – the two notions identified by Auld LJ's judgment. The information was about his complaints about the district judge and was not information that related to him. DK also submitted that the IT's reliance on the TGN was misplaced since the TGN applied a wider concept of personal data than that identified by Durrant.

4. Discussion

193. It is now known that the district judge's principal statement and the notes taken by the investigating officer of what the district judge said during his interview explain how DK had made a fundamental error in formulating his complaint against the district judge. DK had contended consistently that the district judge had informed him during the critical hearing that the circuit judge's order needed to be "effected" if any costs order was to be made against him which he took to mean that the order could only take effect if it was manipulated so that the district judge, in himself altering, or "effecting" the order must have done so with malicious intent since he had indicated that only a circuit judge could take this step. However, as the district judge apparently made clear in his statement, he would have stated that the order could only take effect when it was "perfected" and that the transcript recording him using the word "effected" was clearly in error. It is also known that the district judge expressed outrage at DK's reporting him to the police on the basis that he had committed a criminal offence in arranging for the tape to be doctored so as to omit his assurance that he would not "effect" the order but he would not take defamation proceedings against DK. Furthermore, DK's evidence in the judicial review proceedings was to the effect that he had reported the district judge because he wanted him to be interviewed under caution, charged, tried, convicted and punished and that he was aware that such a course of action would destroy the district judge's judicial career and would probably lead to a custodial sentence. DK in his skeleton argument adds that he wishes to use the statements once they are disclosed to prove that the police have conspired with the court to prevent the exposure of a criminal act of a member of the judiciary and/or of court officials in altering evidential matter held by the court.
194. The district judge is reported to have strongly denied interfering with the tape and that denial is strongly corroborated by the technical investigations of the tape which showed no discernible evidence of having been tampered with in circumstances where even a skilled expert would be hard pushed to tamper with the tape in a way that had obliterated all evidence of being tampered with.
195. There is, therefore, strong supportive evidence to support the IT's conclusion, based on the closed material, that the information in the statements related to DK. Furthermore, the IT applied the part of the definition of "relating to" contained in the TGN that has a "result element". The IT stated in its open decision that it approved this passage contained in the IC's decision notice which was to this effect:

"47. … The IC is satisfied that the requested information is [DK's] personal data because it records information about the way his allegations and complaints against the judge were investigated. Further it reflects details used to inform the final decision about [DK's] allegations. The outcome of that investigation arguable affects [DK] as well as the judge."

The IT added to this reasoning their own gloss which amounted to its acceptance of the submissions of counsel for the IC. The relevant part of the decision was as follows:

"58. In this case, Mr [name added] on behalf of the IC places much reliance on the "notion in the Opinion which assists in understanding how information "relates to" an individual. The Opinion considers that a content or purpose or result element should be present. Mr Hooper particularly relies on the result element where data can be considered to relate to an individual because their use is likely to have an impact on a certain person's rights and interests, taking into account all the circumstances surrounding the present case. In this case, Mr {name} refers us to Mr [name]'s conclusions … that the result of the [NP's} investigation into DK's allegations could have an impact on the costs order against DK and hat this element helped Mr [name] advise the [IC] case officer that all the disputed information was DK's personal data. Also we have before us DK's own explanation in respect of his Data subject request as to how the information may relate to him."

5. Conclusion

196. DK's contentions are based on Durrant which he contends contains a definitive explanation as to how the phrase " data which relate to a living individual" should be interpreted and applied and that the TGN in its post-Durrant revised form is not to be followed in so far as it provides a wider or different interpretation. However, these contentions amount to a significant misreading of Durrant. The relevant passage in Auld LJ's judgment are applicable to the kind of information and the factual context of that case. The passage does not cover any aspect of one of the three potential ingredients of personal data identified in the WPO, namely data with a "result" element which is a significant ingredient of the information contained in the statements I am concerned with. Furthermore, the reasoning of Auld LJ is expressed in somewhat opaque language which is not easy to apply even to information containing a "content" or "purpose" element. The WPO and the TGN appear to provide a reasonable clear and sustainable explanation of the meaning of the phrase. This explains why the Directive, the WPO, the TGN and the Durrant judgment must be read together and applied by using a structured approach incorpor]ating the relevant elements of all four sources^[72].
197. The IT reached its decision using a structured approach which applied all four documents and which reached a balanced and sustainable decision. Even though the full explanation for the conclusion it reached is not available since it is contained in the closed decision, sufficient is revealed about the relevant evidence in the decision which, when taken with the facts now known, shows that there is no reasonable prospect of a tribunal finding that the IT's decision was in error.

Issue (7) - 'Personal data' issues - third party DPA section 1(1) personal data issue

1. Issue (7)

198. Issue (7) is as follows:

Whether the three witness statements are the individual makers' or other third party's personal data of the kind defined in section 1(1) of the DPA ("the third party DPA section 1(1) personal data issue")

2. How the issue arises

199. Both the IC and the IT reached the same very significant, and by DK overlooked these highly significant passages in, respectively the IC's decision notice and the IT's decision:

"15. … Although the Commissioner is satisfied that all of the information is [DK's] personal data, he recognises that it is also the [district judge's] personal data, in addition, the material includes personal data about other third parties."

This finding was repeated and adopted by the IT in paragraphs 48 – 49 of its decision.

200. The effect of these provisions is noted by The Law of Freedom of Information as follows:

" Sub-sections 4)(2) – (4) … contain what can only be described as convoluted exemptions relating to personal data about individuals other than the applicant. In order to be exempted from the right of access under the [FOIA], the personal data must satisfy one of two conditions. …

Condition 1A: The data falls within section 1(1)(a) – (d) of the [DPA] and disclosure to a member of the public would contravene any of the data protection principles …

The net effect of Condition 1A is that under the FOIA personal data about third parties may be obtained by members of the public from public authorities provided that the public authority would be permitted under the 1998 Act to disclose such data to both the data subject himself and the third party".^[73]

Such information is exempt and the duty to confirm or deny does not arise.

201. The first data protection principle states that personal data which is sensitive personal data shall not be processed unless one of the conditions in each of Schedules 2 and 3 are met. The district judge's witness statement is sensitive personal data because it "consists of information as to the commission or alleged commission by him of any offence.^[74]" None of the conditions in either of the schedules are met. In particular, the district judge has not given his explicit consent to the processing of the personal data – that is to the disclosure to DK of his statement and the other documents summarising part or all of his statement^[75]. The only other condition that could conceivably be relevant and met relates to information whose processing is necessary for the administration of justice. Since no action will be taken against the district judge on the basis that there is no evidence of any wrongdoing of any kind, it cannot be said that the information is necessary or even potentially relevant for the administration of justice.
202. In fact, it should be taken into account that the district judge was asked by DK in a letter dated 5 September 2005 whether he had made a statement to the police about the tape in question and the Diary Manager at the district judge's court replied on 7 September 2005 that the district judge could not make comment about individual cases and correspondence received and he therefore made no comment with regards to the letter. DK then wrote to the Senior Civil Judge in the same court on 9 September 2005 informing that judge of the contents of his exchange with the district judge and repeating his request for the district judge's comments. The letter informed the Senior Civil Judge that unless he got an answer, he would have no alternative than to raise a formal judicial complaint against the district judge. The Senior Civil Judge replied on 14 September 2005 who replied that he saw no evidence to suggest that the district judge had failed to cooperate with the police enquiries and declined to respond further to DK's letter. These exchanges show that the district judge, if asked directly to agree explicitly to the disclosure of his statement would either not respond at all or would respond curtly that he was not prepared to give his explicit consent.

3. Significance of section 40(2) of the FOIA and its applicability to the witness statement

203. The effect on DK's information request under the FOIA for disclosure of the statement of the district judge and for a data subject request for the same statement under the DPA is as follows^[76]:

(1) The statement, being any document in which his statement or statements is or are set out or summarised or discussed, is the sensitive personal data of the district judge which is recorded as part of a relevant filing system^[77].

(2) The statement is one which:

(i) Constitutes DK's personal data which do not fall within section 40(1) of the FOIA and it is therefore exempt;

(ii) Constitutes the maker of the statement's personal data and it is therefore exempt because:

(a) The data it contains falls within paragraph (c) of the definition of data in section 1(1) of the DPA^[78];

(b) Its disclosure would contravene the First Data Protection Principle set out in Schedule 1 in that it would involve processing personal data in circumstances in which none of the conditions in Schedule 2 or Schedule 3 are met^[79]; and.

(c) In particular in that regard, the first condition referred in each of these Schedules is not met since the maker of each statement has not given his consent or his explicit consent to that disclosure^[80].

(iii) The duty to confirm or deny does not arise because:

(a) The data it contains is exempt information by virtue of section 40(1); and

(b) The giving of the confirmation or denial would not have to be given to comply with section 1(1)(a) of the FOIA^[81].

(3) The exemption for the data is one of absolute exemption by virtue of section 2(2)(f) of the FOIA because they are exempt by virtue of section 40(1) and a combination of sections 40(2) and 40(3)(3)(a)(i) of the FOIA.

(4) The statement may not therefore be processed under the FOIA and may only be processed under the DPA.

(5) The statement is exempt from disclosure when processed under the DPA because:

(i) Its disclosure is prohibited because the maker of the statement is a data subject for the purposes of the statement, the personal data of that data subject is sensitive personal data and that data subject has not given his explicit consent to its disclosure to DK and neither the First Data Protection Principle nor Condition 1 nor Condition 6(a) nor 7(1)(a) nor any other of the Conditions of Schedule 3 have been met ^[82];

(ii) It is not reasonable in all the circumstances to comply with DK's request because the maker of the statement has not consented to the disclosure of the information and it is not reasonable for NP to comply with that request despite the non-approval because NP police have a duty of confidentiality to the maker of the statement and that make has expressly refused his consent^[83]; and

(iii) The disclosure is for the purposes of the prevention or detection of crime or the apprehension or prosecution of offenders, for those purposes that disclosure is not exempt from the first data principle in relation to compliance with Schedule 3 of the DPA, the maker of the statement, being one of its data subjects, has not given his explicit consent to its disclosure to DK and neither the First Data Principle nor Condition 1 nor Condition 6(a) nor 7(1)(a) nor any other of the Conditions of Schedule 3 have been met^[84].

(iv) The statement may, therefore, not be disclosed by NP to DK under neither the FOIA nor under the DPA even though it is personal data because it is also the sensitive personal data of the maker of the statement.

(v) The same conclusions arise, mutatis mutandis, in relation to the statements of the other two witnesses and their respective failures to give explicit consent in writing to their disclosure to DK.

4. Conclusion

204. The statements are not disclosable whether or not they are DK's personal data although the fact that they are, simultaneously, the personal data of both DK and their respective makers provides significant additional reason for the correctness of the IT in refusing disclosure.

Issues (8) – (12) - Issues that have been answered in other issues or do not arise

205. Issue (8) is as follows:

Whether the three witness statements are both DK's and the individual maker's personal data and, if so, what the effect of that is ("the joint personal data issue")

206. This issue has been answered in issue (7) above.
207. Issue (9) is as follows:

Whether the witness statements are exempt information as having been held by NP for the purposes of an investigation which NP had a duty to conduct with a view to it being ascertained whether a person should be charged with an office (the " FOIA section 30(1) issue")

208. This issue does not arise. The IT did not address it since it decided that the IC correctly decided that DK's information request under the FOIA should be answered as a data subject request under the DPA.
209. Issue (10) is as follows:

Whether, if section 30(1) of the FOIA is engaged, the public interest in maintaining the exemption from disclosure is overridden by the public interest in disclosure (the "FOIA section 2(2)(b) issue")

210. This issue does not arise. The IT did not address it since it decided that the IC correctly decided that DK's information request under the FOIA should be answered as a data subject request under the DPA.
211. Issue (11) is as follows:

Whether, if the witness statements are personal data that are absolutely exempt under sections 40(1) and/ or 40(2) of the FOIA, they are or would be disclosable to DK under the DPA (the "DPA disclosure issue")

212. This issue has been answered in issue (7) above. The answer is "no".
213. Issue (12) is as follows:

In the light of the answers to issues (3) – (12), whether DK's proposed appeal to the UT has a realistic prospect of success ("the realistic prospect of success issue");

214. The answer is that DK's proposed appeal to the UT has no prospects of success on the grounds that the UT has no jurisdiction to hear it, the decision of the IT that DK's information request had to be dealt with as a subject access request under the DPA discloses no arguable prospect of success and that, in any event, the finding of the IC that the relevant statements are the personal data of the makers of those statements, which was challenged in the IT and is not subject of the proposed appeal to the UT, provides a conclusive answer to DK's proposed appeal and to his information request under the FOIA.

Issues (13) – (15) - Cart Issues

215. Issue (13) is as follows:

Whether the proposed appeal to the UT raises an important point of principle or practice ("the important point of principle or practice issue")

216. The only point of principle or practice of any importance relates to the meaning of personal data, the difficulties of interpreting that phrase in the light of the Durrant judgment, the lawfulness of the TGN. However, these potentially important points of principle do not arise for consideration in this potential appeal since the appeal is bound to fail on the third party personal data point arising under section 40(2) of the FOIA. Any appeal on the Durrant point would therefore be academic. Moreover, the facts in this case are such that the relevant information is DK's personal data whatever interpretation is placed on that phrase. The Durrant point would, on that ground as well, not arise save as an academic question.
217. Issue (14) is as follows:

Whether there is some other compelling reason why the UT should hear the proposed appeal ("the other compelling reason issue")

218. There is no other compelling reason why the UT should hear the proposed appeal.
219. Issue (15) is as follows:

In the light of the answers to issues (1) – (15), whether permission to proceed should be granted under CPR 54.7A(7) ("the Cart issue")

220. The answer is no. In the light of that answer, I do not grant DK permission to extend time in which to lodge the claim form. The application is therefore dismissed as being out of time and, on its merits, as having no prospects of success^[85].

Issue (16) - The costs decision Cart application

221. Issue (16) is as follows:

Whether permission should be granted to proceed in relation to the UT judge's dismissal of DK's application for permission to appeal the IT's costs decision dated 15 June 2009 (the "costs decision issue")

222. DK seeks permission to appeal the costs decision of the IT and seeks to judicially review the UT judge's refusal to grant permission to appeal that decision. The application raises no point of law and is, in any event hopeless. The costs decision of the IT was one which was well within the margin of discretion permitted to a tribunal in considering costs issues, was fully reasoned and was, in any event, clearly reasonable and one it was entitled to come to.
223. DK's application for permission to seek a judicial review of the IT's costs decision is refused as being out of time, as one for which permission to extend time will not be granted and as one which raises no point of law and is totally without merit.

H. Conclusion - FOIA Cart claim

224. The order will be:

(1) The application dated 27 April 2013 for a declaration that the claim form in CO/2904/2013 was filed within time is dismissed.

(2) The alternative application to extend time for filing the claim until 11 March 2013 is dismissed.

(3) The claim was not filed within time as provided for in CPR 54.7A(3) or within any reasonable period thereafter. The application for permission is dismissed on this ground.

(4) Application for permission to apply for judicial review of the decisions of Upper Tribunal Judge Jacob dated 4 September and 1 October 2012 is dismissed on the grounds that the claim does not disclose an arguable case.

I. Discovery and DPA application – Claim CO/3391/2008

1. Introduction

225. The application that I am concerned with was issued as recently as 24 April 2013 but its origins go back to the first oral permission hearing on 9 March 2010 in the three judicial review claims issued in 2008. At that hearing, DK sought an adjournment to enable the renewed permission applications to be heard after, and in the light of, his attempts to obtain a copy of the district judge's statement dated 6 February 2006 and other documents through his FOIA request to NP. This was the same statement that he had sought in his FOIA request that I have dealt with in this judgment. I granted an adjournment on those and other grounds and gave directions for the resumed hearing which was fixed for 6 October 2010. This was again adjourned because DK had not yet obtained documents he said that he needed for the hearing, prepared the necessary hearing bundle or served an application seeking an order for the disclosure of the district judge's statement. DK then issued the first application for disclosure in claims CO/3391/2008 and CO/11166/2008 on 11 November 2010 seeking an order for the disclosure of that statement.
226. The application sought the order without a hearing which would provide for the disclosure of the statement to DK prior to the adjourned permission applications hearing fixed for 17 December 2010. It was accompanied by a witness statement which explained that, in DK's view, it was necessary for the judge dealing with his renewed permission hearing to have sight of this statement which was the subject of the appeal from the IT that awaited a hearing in the Administrative Court^[86]. The application was referred to me and, in an order dated 10 December 2010, I dismissed the application with these reasons:

"The hearing is a permission hearing at which [DK] needs to show an arguable case. The hearing does not need the [district judge's] witness statement and the copies of the [Newcastle Combined Court] logs [also being sought]. If permission is granted, and it can be seen that these documents are needed for the full oral hearing, directions as sought can then be given."

227. This order was served on DK by post on 10 December 2010 as is clear from the Administrative Court electronic records. DK applied for an adjournment of the hearing at the hearing because he had not then received the logs that he had been seeking from the Newcastle Combined Court. He did not renew his application for the district judge's statement at the same time and nothing more was heard of the application until a fresh application was issued on 12 February 2013 seeking disclosure of the district judge's statement and the two further statements, being the three statements still in contention in the UT Cart application. This application was issued in both CO/3391/2008 and CO/11166/2008. This application was replaced by a third application issued on 24 August 2013 only in CO/3391/2008 which is the application with which I am now concerned.

2. The application

228. The application seeks an order that NP release copies of the three witness statements which are referred to as:

"… [having been] created during the investigation of a complaint against [the district judge] and were subject to actions in the IT in April 2009."

The application is made on two bases: (1) in CO/3391/2008 to enable the outstanding renewed permission application to be fairly and lawfully considered and (2) under CPR 31.17 for an order for disclosure against a person who is not a party to the proceedings.

229. The application is only made against NP who is an interested party in CO/3391/2008 in a judicial review claim seeking the quashing of a decision of the Independent Police Complaints Commission's decision dated 20 December 2007. That decision dismissed his appeal against the dismissal by NP of his complaint against the Detective Inspector in charge of the police investigations into DK's complaint against the district judge. The original complaint related to 14 specific alleged incidents of misconduct by the Detective Inspector in relation to the manner in which the investigations were carried out. The application is not made against the IPCC who had copies of the three statements as part of the file that had been passed to them by NP to enable it to consider, and dismiss, DK's appeal.
230. The application under CPR 31.17 is made against NP as a non-party. CPR 31.17 provides:

(4) This rule applies where an application is made to the court under any Act for the disclosure by a person who is not a party to the proceedings.

…

(3) The court may make an order under this rule only where-

(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and

(b) disclosure is necessary in order to dispose fairly of the claim or to save costs.

The application does not identify under which Act it is being made but there are two relevant Acts, being section 34(2) of the Superior Courts Act 1981 ("SCA") and section 7(9) of the DPA, which are applicable and I will consider the application under both of them.

231. It follows that the application is being made against NP:

(1) as an interested party in the judicial review brought by DR against the IPCC under CPR 54.16(2) and 31.6;

(2) by way of an application under section 7(9) of the DPA against NP's refusal to provide copies pursuant to DK's subject access request dated 17 January 2008 and

(3) by way of an application under section 34 of the SCA coupled with the relevant CPR, being CPR 25.1(1)(j) and 31.17(3).

232. DK has recently suggested in emails to the court that the court has no jurisdiction to hear and determine his application because it was determined by the order dated 10 December 2010 so that the issue is, as it was put, res judicata. However, the application was not finally determined by that order. An interim or procedural order is never final and may be reviewed or set aside by a later procedural order, particularly as here when there are changed circumstances. Moreover, in judicial review proceedings, it is clear that an order refusing disclosure prior to the grant of permission by way of a paper refusal may be the subject of a fresh application made at an oral hearing or subsequent consideration of the leave application. Finally, this application is being made in changed circumstances in that it is now allied, as it had not previously been, with applications under the SCA and the DPA. These applications may be made even if the procedural decision under CPR 54.16 stands. It would be unjust, therefore, not to permit the CPR 54.16 application to be reargued given those changed circumstances.
233. I must decide the order in which I consider the applications. The natural starting point is the application under the DPA. This application, if successful, would be determinative of DK's applications for disclosure of the witness statements, it is a natural adjunct to the Cart application and if I found that DK was entitled to the disclosure of the statements pursuant to his subject access request, he would be entitled to disclosure without any exercise of discretion. Equally, if he is not entitled to disclosure of his personal data under the DPA, that would be a highly relevant consideration to take into account when deciding his application on the other two grounds.

3. Application under section 7(9) of the DPA

234. Section 7(9) of the DPA provides that:

"If a court is satisfied on the application of any person who has made a request under the foregoing provisions of this section that the data controller in question has failed to comply with the request in contravention of those provisions, the court may order him to comply with that request."

235. DK requested NP to supply him with various documents by a request made under section 7(1) in a request dated 17 January 2008. This request was made as a direct consequence of the IC informing DK in a letter dated 17 January 2008 advising him that the information he had requested from NP was his personal data and that he was, in consequence, closing DK's FOIA complaint since the request should have been made to and processed by DK under the DPA. NP supplied all of the documents that were the subject of the subject access request save for the three statements I am concerned with and, meanwhile, the IC and the IT on appeal affirmed NP's failure to supply them under the FOIA on the grounds that any request should be dealt with under the DPA. DK's challenge to that approach has only finally been dismissed by the Cart decision in this judgment. It follows that DK is left with his unresolved attempts to obtain copies of these statements and that section 7(9) of the DPA provides a statutory means of seeking to overturn NP's DPA refusal to supply them. This route is clearly open to DK in this court since his application to this court is wide enough in its terms to encompass a section 7(9) application which may be made to the High Court and which it is highly convenient for me to decide as an adjunct to the FOIA application that I have just decide with which it is closely connected.
236. DK must show that the NP refused his application in contravention of the provisions of this Act. No reasons were given for that refusal so I must consider whether the unreasoned decision contravenes the DPA. In doing so, I can and do rely on my decision just reached under the FOIA to the effect that the statements are not disclosable and may not be disclosed to DK under either the FOIA or the DPA^[87].
237. I did not explain in that earlier part of the judgment why section 7(6) of the DPA is applicable to excuse NP from disclosing the statement. Clearly, NP could not disclose it to DK, even though it contains his personal data, without disclosing the personal data of "another individual" – namely the maker of the statement being the district judge. The district judge has through the court manager and the senior civil circuit judge made it clear that he does not consent to his statement being supplied to DK and, in any event, would only have provided the statement to the police on receiving an assurance that the statement would only be used in court if it was necessary to refer to it there. Given DK's adamant wish to have the district judge prosecuted and his blind refusal to accept that the other evidence he has seen leads to the inexorable conclusion that the tape was not tampered with and no crime has been committed by anyone in relation to such tampering, it would be wholly unreasonable for NP to disclose its contents to DK.
238. I repeat my reasoning there. The failure to obtain and the absence of any agreement of the district judge to his statement being disclosed to DK is an absolute and irrevocable bar to its disclosure to DK. The application under the DPA is therefore refused since NP's refusal to disclose it was in accordance with the law.

4. Application under CPR 54.16

239. Applicable principles. The following principles apply to disclosure in judicial review proceedings:

(1) Disclosure is dealt with under a combination of CPR 54.16 read with CPR 31.6 and 31.12. In other words, the normal disclosure principles must be read together with judicial review rules of evidence.

(2) No written evidence disclosed prior to permission being granted unless the court orders otherwise^[88].

(3) An interested party is under no obligation to provide discovery before or after permission has been granted. In exceptional cases, the court may order disclosure but it is virtually unheard of for an interested party to be ordered to disclose documents prior to permission being granted.

(4) The reason why disclosure is rarely ordered before permission has been granted is that the test for permission is a relatively modest one: does the claim have reasonable prospects of success. Because of the need for speed in judicial review proceedings and given that low threshold, issues of disclosure should normally await the granting of permission – if permission is to be granted at all. If permission is not granted, disclosure will not then be ordered.

(5) The exceptional circumstances in which disclosure is considered and possibly ordered prior to permission being granted is where the claim cannot be considered for permission because of the absence of a vital document but the surrounding circumstances suggest that once that document is obtained, there is a good prospect of the claim being granted permission.

(6) If documents are disclosed, they may not be used in any other proceedings or judicial review claims or disclosed to any other person or party unless the court expressly sanctions that use or other disclosure.

240. Basis of DK's application. The application is made in the judicial review claim against IPCC in which a quashing order is sought to quash the IPCC's decision to dismiss DK's appeal. No clear judicial review grounds are put forward in support of the claim and the only grounds that can be identified are that the decision was Wednesbury unreasonable in that it failed to take into account highly relevant material and/or was irrational as being one that no reasonable IPCC decision-maker could have made. The basis for DK's application for discovery is set out in his third witness statement dated 18 April 2013 accompanying the application notice. This document serves as both a witness statement and a written submission.
241. DK's overall contention is that disclosure of the district judge's statement and the other two factual statements is essential if there is to be a fair consideration of his application for permission to bring a judicial review of the IPCC's decision to dismiss his appeal. The gist of DK's complaint in the judicial review was that the shoddy manner in which his original complaint to NP was investigated led to a decision that no criminal conduct had occurred and no charges or prosecutions would result. This complaint is fleshed out by reference to 14 specific conduct complaints against the investigating officer. All these complaints were dismissed. DK appealed against that dismissal and the IPCC dismissed that appeal. In doing so, it is contended that the IPCC, who had been supplied by NP with its investigation file that contained copies of the statements in issue, dismissed the appeal in a Wednesbury unreasonable manner. He seeks an order quashing the decision and mandatory orders that NP's investigation into his complaint against the district judge be repeated from scratch during which the district judge should be re-interviewed under caution and that the IPCC should obtain all relevant documentation relating to the original investigations from NP and the CPS and provide copies to DK.
242. DK's contentions in support of the wholly unreasonable nature of the IPCC's consideration of the appeal are convoluted but may best be summarised as follows.
243. The background to the application was a civil claim brought by DK against a defendant which was struck out by the court. A circuit judge in a previous hearing in that case had ordered DK to pay the opposing party's costs of an earlier hearing, such costs to be assessed by a district judge. The previous order was defective in omitting certain words and the district judge, who had been assigned the costs hearing, concluded that he had no jurisdiction to assess the costs to be paid by DK and adjourned the hearing.
244. It was clear from other independent evidence that the district judge had made a material statement in the presence of DK and the defendant's two legal representatives before adjourning the hearing. This statement amounted to an assurance he had no jurisdiction to issue an order that amended the circuit judge's previous order so as to provide himself with jurisdiction to assess DK's costs liability to the defendant. The district judge subsequently reneged on that assurance by issuing an order without notice that amended the earlier order so as to give himself that jurisdiction.
245. DK subsequently obtained the court tape of the district judge's hearing and when it was transcribed he found that the assurance that he believed that the district judge had given was not to be found on the transcript. However, there appeared to be gaps in the tape recording and he concluded that the assurance had been deliberately edited out by and that that had occurred as a result of the actions or the instructions of the district judge whose motive in committing this grave criminal offence was to cover up his judicial error in reneging on his assurance that he would not issue an amended order that he had no power to issue.
246. Disclosure is sought of the district judge's statement or statements that he made to the two police investigating officers who interviewed him at different states of NP's investigation into DK's complaint that the district judge had committed a criminal offence in tampering with the tape.
247. It is vital that these documents should be considered by the judge determining DK's permission application in his judicial review claim against the IPCC since the contents will provide clear evidence of the IPCC's failure to consider the evidence provided by the statement properly or to appreciate that the district judge was guilty of perverting the course of justice. Without a sight of that statement, it would be unlikely that the district judge's guilt could be established.
248. The statements are therefore crucial pieces of evidence because there is clear independent evidence that the district judge assured DK that he had no jurisdiction to amend the previous defective costs order. It is therefore inconceivable that his statements fail to deal with that assurance. It follows that the district judge either accepts that he had given that assurance or asserts that he had in fact stated at the hearing that he did not have jurisdiction to amend the costs order.
249. If the district judge accepted that he gave an assurance, the investigating officer should then have questioned him further and under caution as to why he subsequently issued the amending order that he had stated agreed that he had no jurisdiction to issue and why the tape transcript shows that the tape had had that assurance edited out of it. The likely outcome of such inquiries would be that the investigating officer would be found to have carried out a wholly inadequate interview of the district judge which had led to the erroneous decision not to prosecute. Had the judge been properly interviewed, it is likely that his evidence would have led to his being prosecuted.
250. If, on the other hand, the district judge stated that he in fact informed the hearing that he had jurisdiction to amend the order, the only reasonable conclusion that could be drawn would be that the district judge had lied to the police given the strength of the independent evidence showing what he had in fact assured those attending the hearing. Furthermore, if it was shown that he had lied, it would give rise to the inevitable conclusion that he had caused the tape to be tampered with since he could have been no other motive for lying other than to cover up his criminal behaviour in tampering with the tape.
251. Either way, DK's complaints about the investigating police officer would be shown to have been justified since it would be clear that he had conducted the investigation in a wholly inadequate manner. Moreover, the contents of the statement would show that the district judge had not been properly interviewed and that he should be re-interviewed under caution.
252. In summary, the IPCC should have drawn the following conclusions: (1) DK's complaints about the investigating officer's inadequate investigation were justified; (2) NP's exoneration of the investigating officer was unjustified; (3) The IPCC should have recommended that NP's investigation of DC's complaint should be undertaken afresh with the district judge being fully and thoroughly interviewed under caution.
253. It is overwhelmingly in the public interest for a fresh investigation to be carried out and for the district judge to be interviewed under caution and prosecuted given his unlawful conduct. Moreover, the disclosure now sought should have been ordered by the IT in the FOIA proceedings and could have been provided by NP in this claim in any event so that disclosure should now be ordered. Without sight of the statement, it would be impossible for the Administrative Court to take a fair and balanced view as to whether there was a reasonable prospect of DK showing that the IPCC's decision to dismiss his appeal was erroneous and that a re-investigation of DK's complaint by NP should take place.
254. In further support of his contentions, DK alleged that NP, the IPCC, the IC and IT and the Administrative Court ("the establishment" as he compendiously described them in his witness statement) have obstructed his attempts to bring the district judge to justice because of a wish to "protect one of its own".
255. Discussion. DK has not referred in his supporting statement to his own statement which he provided to the investigating officer nor to any of the documents that he has obtained from NP through his subject access and information requests. However, many of the documents that were disclosed have since been disclosed by DK in the judicial reviews he is still pursuing. These documents show that:

(1) The district judge in fact stated at the hearing that he would arrange for the order to be perfected by the court. This statement was erroneously transcribed from the tape as being that the order would be "effected" and was interpolated by DK as an assurance that the district judge would not himself "effect" the amendment of the order because he had no jurisdiction to do this. The defendant's legal representatives taken during the hearing recorded the district judge as stating that the order would be amended but by the circuit judge who made it and not by the district judge. It follows that the evidence clearly shows that the district judge assured those present that the order would be perfected by the court leaving it open as to whether the judge making that order would be the circuit judge or himself.

(2) The forensic technical examinations of the tape showed on evidence of their being tampered with and that it only a very highly skilled technician would be capable of tampering with the tape without leaving any traces of that tampering.

(3) The district judge had no motive for tampering with the tape as alleged. He stood to gain nothing by doing so, he had no malicious intent and the suggestion by DK that he had crossed swords with him in a previous case in a way that had led to him being ill-disposed towards DK was not supported in any way by the evidence produced by DK in the judicial reviews.

(4) There was virtually no opportunity for the district judge to tamper with the tape even if he had the means of doing so.

(5) DK's appeal to the circuit judge against the district judge's amendment order was dismissed on the grounds that the amendment was correctly made under the "slip rule" and was one that the district judge had jurisdiction to make.

(6) There was therefore no evidence that the district judge had lied to the police investigating officers when giving his two statements.

(7) The investigating report summarised the second statement as being very short and as containing a vehement and emphatic denial that he had tampered with the tape and a clear and cogent explanation that he had referred to the "perfecting" of the order not the "affecting" of the order so that he had stated that he did have jurisdiction to perfect the order and that he would himself perfect it^[89].

256. It is also relevant to take account of the fact that the statements are exempt from disclosure from NP and from the IPCC by virtue of the DPA and FOIA so that there would have to be exceptional circumstances for disclosure to be ordered since to do so would circumvent the provisions of these Acts.
257. Conclusion. The permission application can be fairly and fully considered without sight of the district judge's or the two legal representative's witness statements. The IT correctly refused to order their disclosure under the FOIA and it is clear that they are not disclosable under the DPA. In those circumstances, the application under CPR 54.16 is dismissed.

5. Application under CPR 25.1(1)(j) and 31.17(3)

258. These provisions permit a party to proceedings to apply for disclosure from a non-party subject to the conditions set out in CPR 31.17(3). Neither of those conditions are applicable to DK's application. Firstly, the documents sought are not "likely to support the case of [DK] or adversely affect the case of [the IPCC]"^[90]. For the reasons set out above^[91], the witness statement is likely to adversely affect DK's case and support the IPCC's case. Secondly, the documents are not "necessary in order to dispose fairly of the claim or to save costs"^[92]. In fact, the statements are not necessary at all since it is clear that they support the documents already available which show that the district judge gave no assurance of the kind contended for by DK, did not tamper with the court tape and committed no offence. Furthermore, given that these statements are the district judge's personal data which has exemption from disclosure under the DPA, it would be wrong to exercise the exceptional discretion available by virtue of these provisions to circumvent the DPA given that their disclosure is not necessary for the purpose of the fair and just disposal of this judicial review claim.
259. Conclusion. The application under each of the three heads is dismissed.

J. Overall Conclusion

260. The following orders will be made:

(1) In CO/2904/2013.

(1) The application for a declaration that the claim form in CO/2904/2013 was filed within time is dismissed.

(2) The alternative application to extend time for filing the claim form until 11 March 2013 is dismissed.

(3) The claim was not filed in time as provided for in CPR 54.7A(3) or within a reasonable period thereafter. The application for permission is dismissed on this ground.

(4) Application for permission to apply for judicial review of the decisions of Upper Tribunal Judge Jacob dated 4 September 2012 and 1 October 2012 are dismissed on the grounds that the claim does not disclose an arguable case.

(5) No order as to costs.

(2) In CO/3391/2008

(6) The application dated 24 April 2013 seeking disclosure of documents under CPR 25.1(1)(j) and 31.17(3) and section 7(9) of the Data Protection Act 1998 is dismissed.

(7) No order as to costs.

HH Judge Anthony Thornton QC

Appendix

THE TRIBUNAL PROCEDURE (FIRST-TIER TRIBUNAL)

(GENERAL REGULATORY CHAMBER) RULES 2009

S.I. 2009 No. 1976 (L. 20)

Prevention of disclosure or publication of documents and information

14.—(1) The Tribunal may make an order prohibiting the disclosure or publication of—

(a) specified documents or information relating to the proceedings; or

(b) any matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified.

(2) The Tribunal may give a direction prohibiting the disclosure of a document or information to a person if—

(a) 9(a) the Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and

(b) the Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction.

(3) If a party ("the first party") considers that the Tribunal should give a direction under paragraph (2) prohibiting the disclosure of a document or information to another party ("the second party"), the first party must—

(a) exclude the relevant document or information from any documents that will be provided to the second party; and

(b) provide to the Tribunal the excluded document or information, and the reason for its exclusion, so that the Tribunal may decide whether the document or information should be disclosed to the second party or should be the subject of a direction under paragraph (2).

(4) If the Tribunal gives a direction under paragraph (2) which prevents disclosure to a party who has appointed a representative, the Tribunal may give a direction that the documents or information be disclosed to that representative if the Tribunal is satisfied that—

(a) disclosure to the representative would be in the interests of the party; and

(b) the representative will act in accordance with paragraph (5).

(5) Documents or information disclosed to a representative in accordance with a direction under paragraph (4) must not be disclosed either directly or indirectly to any other person without the Tribunal's consent.

(6) The Tribunal may give a direction that certain documents or information must or may be disclosed to the Tribunal on the basis that the Tribunal will not disclose such documents or information to other persons, or specified other persons.

(7) A party making an application for a direction under paragraph (6) may withhold the relevant documents or information from other parties until the Tribunal has granted or refused the application.

(8) Unless the Tribunal considers that there is good reason not to do so, the Tribunal must send notice that a party has made an application for a direction under paragraph (6) to each other party.

(9) In a case involving matters relating to national security, the Tribunal must ensure that information is not disclosed contrary to the interests of national security.

(10) The Tribunal must conduct proceedings and record its decision and reasons appropriately so as not to undermine the effect of an order made under paragraph (1), a direction given under paragraph (2) or (6) or the duty imposed by paragraph (9).

Decisions

38.— (1) The Tribunal may give a decision orally at a hearing.

(2) Subject to rule 14(10) (prevention of disclosure or publication of documents and information), the Tribunal must provide to each party as soon as reasonably practicable after making a decision which finally disposes of all issues in the proceedings (except a decision under Part 4)—

(a) a decision notice stating the Tribunal's decision;

(b) written reasons for the decision; and

(c) notification of any right of appeal against the decision and the time within which, and manner in which, such right of appeal may be exercised.

Practice Note issued by the First-tier Tribunal (Information Rights)

Practice Note

Closed Material in Information Rights Cases

1. It is a general principle of tribunal practice that hearings are in public with all parties entitled to be present throughout; and that the documents provided to the tribunal by any party are seen also by all the other parties.

2. In the information rights jurisdiction, there are some cases in which this principle must be modified.

3. In some appeals, the tribunal is able to make its decision without looking at the information whose disclosure is disputed. These can and do proceed normally.

Sometimes however, the public authority cannot properly explain its case without showing the disputed information to the tribunal. Put another way, sometimes the tribunal cannot check, on behalf of the citizen, that the public authority is entitled to an exemption under the Freedom of Information Act 2000 or the Environmental Information Regulations 2004, without seeing the disputed information for itself.

Obviously, though, disclosure of the information to everyone in the proceedings would defeat the object of the exercise. There is no point in deciding whether information should or should not be disclosed, if it already has been. Similar difficulties can occur with supporting evidence and arguments.

4. In these circumstances the law permits the tribunal to deviate from the normal rule but only so far as is necessary to ensure that the purpose of the proceedings is not defeated.

Any such deviation must be authorised by a district judge.

5. Rule 14(6) GRC Rules empowers the tribunal to give a direction that certain documents or information be disclosed to the tribunal but not to the other parties to the appeal. The Information Commissioner and the public authority are normally under a duty to disclose to the tribunal all the material they hold which is relevant to the appeal. Should they wish any of that material to be withheld from the requester then one of them must apply to the district judge for a direction to that effect.

6. The application must be in writing. It should include a draft of the requested direction and enclose a copy of material which the applicant seeks to withhold. The reasons for withholding the information must be given. In respect of the disputed information it will be sufficient to say that the tribunal needs to see it in order to evaluate the evidence properly. In the case of other material, greater explanation may be required. On receipt of the application, tribunal staff will, unless there is good reason not to do so, tell all the other parties that it has been made; but they will send a copy of the application only to the district judge.

7. When considering the application, the district judge will first ask whether it is possible for a hearing to take place within the normal rules of disclosure. If yes, (s)he will give directions accordingly. If not, the district judge will make a direction under Rule 14(6) stating the information which is to be withheld. It is common to refer to the withheld information as "closed material".

8. Care must be taken, when drafting the direction, not to give away the nature or content of the withheld information. That said, it may be possible, by providing an index to the documents, for example, to give an idea of what material has been withheld. The public authority and the Information Commissioner will be expected to assist the Tribunal in this respect.

9. The district judge will limit non-disclosure to what is necessary. For example, it may be possible to edit a document so that at least some of it is disclosed even though some has to be withheld. If the district judge's provisional view is that some but not all of the material should be withheld, tribunal staff will write to the requesting party with a new proposed draft. This is to give the applicant for the direction a chance to add further comments and to ensure that the later draft is clear and correct.

10. Once the district judge makes a direction under Rule 14(6) the Tribunal must conduct the proceedings so as not to undermine its effect. All parties must co-operate in this. The district judge will also be vigilant as to whether, as events unfold, the direction might require amendment.

11. There are likely to be consequences for any hearing which takes place. It may be that all the parties being present for all of the hearing would undermine the effects of a Rule. If so, Rule 35(4)(c) permits the tribunal to exclude one of the parties for some of the time.

12. If this happens, the district judge will explain to the excluded party, usually the citizen, what is likely to happen during the closed part of the hearing. The district judge may ask if there are any particular questions or points which (s)he would like put to the other parties while (s)he is absent.

13. Before the closed part of the hearing ends, the tribunal should discuss with the remaining parties:-

(a) What summary of the closed hearing can be given to the excluded party without undermining the Rule 14(6) direction.

(b) Whether, in the course of the closed session, any new material has emerged which it is not necessary to withhold and which therefore should be disclosed.

14. The tribunal's final decision and reasons must also be recorded so as not to undermine the effect of any Rule 14(6) direction.

15. We are still perhaps working out the practical effects of Rules 38(2) and 14(10)^[93]. They do not mean that a closed part of the decision is always needed whenever closed material has been seen. Where the Tribunal orders disclosure it may be necessary for part of the decision to remain closed until after the period for an appeal has expired.

16. It may be prudent in complex cases for a draft of the decision to be shared with the public authority/IC in advance to reduce the risk of inadvertent disclosure.

17. Tribunal practice may require further modification in cases involving matters relating to national security. See Rule 14(9).

May 2012.

It is ordered that:

1. In CO/2904/2013:

(1) The application for a declaration that the claim form in C0/2904/2013 was filed within time is dismissed.

(2) The alternative application to extend time for filing the claim form until 11 March 2013 is dismissed.

(3) The claim was not filed in time as provided for in CPR 54.7A(3) or within a reasonable period thereafter. The application for permission is dismissed on this ground.

(4) Application for permission to apply for judicial review of the decisions of Upper Tribunal Judge Jacob dated 4 September 2012 and 1 October 2012 are dismissed on the grounds that the claim does not disclose an arguable case.

(5) No order as to costs.

2. In CO/3391/2008

(1) The application dated 24 April 2013 seeking disclosure of documents under CPR 31.17 and section 7(9) of the Data Protection Act 1998 is dismissed.

(2) No order as to costs.

3. This order is to take effect on, and any time limit is to start running from the date of this order and not 20 August 2013.

HH Judge Anthony Thornton QC Dated this 11^th day of September 2013

By the Court