Forstater v (1) The ICO (2) The Ministry of Justice and (3) The Judicial College

On 22 December 2023, the Upper Tribunal (“UT”) issued a significant decision concerning the application of the Freedom of Information Act 2000 (“FOIA”) to information held by the independent judiciary. In doing so, it confirmed the constitutional status of the Judicial College following the Constitutional Reform Act 2005 and the exclusion of information held by or on behalf of the judiciary from the FOIA regime.

The UT held that the Judicial College, responsible for judicial training, is not a “public authority” under s.3(1) of FOIA. In doing so, it held that “[t]he Judicial College not being listed in Schedule 1 to FOIA can [] be seen as a conscious legislative choice, post the Constitutional Reform Act 2005 to exclude the information held by an independent judiciary and by bodies such as the Judicial College on behalf of the judiciary from the requirements of FOIA” (at §34).

The appeal arose from a request by Ms Forstater for information concerning training Ms Forstater understood had been delivered by an organisation called ‘Gendered Intelligence’ on ‘Trans awareness’ to judges of the employment and asylum and immigration tribunals. The request asked for (i) the cost of the training; (ii) the contract / agreement / terms of reference for commissioning the training; (iii) copies of any presentation material and/or hand-outs used; and (iv) the names of the judges who attended the training.

On 27 January 2022, the First-Tier Tribunal (“FTT”) had dismissed Ms Forstater’s appeal, except in relation to the costs of training (the decision is available here). The FTT concluded that “the Judicial College is not a public authority for the purposes of FOIA” (FTT, at §§21-37). It also held that categories (ii)-(iv) of the information requested were not “held” by the Judicial College and the Ministry of Justice for the purposes of FOIA (FTT, at §54 and §§60-61). However, category (i), i.e. the cost of training, was information held for the Ministry of Justice’s own purposes in order to account for the expenditure of the Judicial College’s budget (FTT, at §§57-59).

By its decision, the UT upheld the FTT decision and dismissed the appeal. In particular, it held that (i) the Judicial College was not listed as a public authority in Schedule 1 to the Act and the reference to the “Judicial Studies Board” could not simply be equated to it as a matter of construction (§§17-19 and 24-25); (ii) based on the evidence before the FTT, the Judicial College was not simply the same entity as the “Judicial Studies Board” (§§26-33); and (iii) the FTT had not committed any error of law or procedure in reaching its conclusions (§§36-46).

Ravi Mehta appeared on behalf of the Second and Third Respondents, the Ministry of Justice and the Judicial College.

The decision may be found here.