Maya Forstater v The Information Commissioner & Ors

Under the Freedom of Information Act 2000, the general right of access arises only where the request is made to a body that is a public authority. The statutory scheme principally depends on the body being listed in Schedule 1 or designated by order. A body’s functional similarity to a listed body does not, without more, make it the listed body. A new body may qualify only where the evidence clearly establishes that it is the same body under a new name and satisfies the statutory conditions. Courts and tribunals should not read a different body into an unambiguous statutory entry merely because the legislature has failed to update the list. In a full merits appeal, the burden of proof is secondary to the tribunal’s duty to decide the matter independently on the evidence.

Ms Forstater requested information about judicial training from HMCTS, the Ministry of Justice and the Judicial College. The First-tier Tribunal found that the Judicial College was not a public authority under the Freedom of Information Act 2000, although the Ministry of Justice held information about the cost of the training.

The First-tier Tribunal’s decision dated 30 November 2021 was challenged on grounds concerning the identity of the Judicial College and the former Judicial Studies Board, statutory construction, findings of fact, burden of proof, and whether information was held on behalf of the judiciary. Permission to appeal was granted on three grounds, with the remaining grounds considered at a rolled-up hearing. The central issue was whether the Judicial College was a public authority when the request was made.

The appeal was dismissed. The First-tier Tribunal had made no error of law.

1. Statutory scheme. Sections 1 and 3 of the Freedom of Information Act 2000 establish that the right of access applies to information held by a public authority. A body is a public authority principally if it is listed in Schedule 1 or designated under section 5. Sections 4(1) and 4(5) provide the statutory mechanisms for adding and removing bodies. The scheme strongly indicates that an unlisted body is not a public authority merely because it performs similar functions to a listed body.
2. Judicial College and Judicial Studies Board. The Judicial Studies Board ceased to exist on 31 March 2011 and the Judicial College came into being on 1 April 2011. The evidence entitled the First-tier Tribunal to find that the Judicial College was a new body, not the Judicial Studies Board under a new name. Similar functions and operational continuity did not establish identity. Even if a mere change of name could in principle permit a renamed body to fall within an existing Schedule 1 entry, clear evidence would be required, including evidence that the statutory conditions concerning establishment and appointment remained satisfied.
3. Statutory construction. The words Judicial Studies Board in Schedule 1 were clear and referred to the body known by that name. The tribunal could not substitute Judicial College for those words because the former body remained listed after it ceased to exist. The limited jurisdiction to adopt a rectifying construction applied only in a plain case of drafting error. The omission was not such an error, and the statutory power to amend Schedule 1 lay with the Secretary of State or Minister for the Cabinet Office.
4. Appeal and evidence. The First-tier Tribunal was required by section 58 to decide independently whether the Commissioner’s decision was lawful and did so. Although the ordinary presumption placed the burden on the appellant, the concept was secondary in a full merits review. The Tribunal’s conclusion rested on the evidence, particularly the evidence of the Judicial College’s executive director, and was not irrational or perverse. The Judicial College’s own earlier responses describing itself as subject to FOIA could not determine the legal interpretation of Schedule 1.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the First-tier Tribunal decision dated 30 November 2021 did not involve an error of law.
• First-tier Tribunal (General Regulatory Chamber): found that the Judicial College was not a public authority under the Freedom of Information Act 2000, while finding that the Ministry of Justice held information concerning the training costs.