Reuben Kirkham v The Information Commissioner & Anor
[2024] UKFTT 7 (GRC)
George Greenwood v The Information Commissioner & Anor
5 July 2024
[2024] UKFTT 581 (GRC)
First-tier Tribunal
A journalist wanted emails and WhatsApp messages between Matt Hancock and Gina Coladangelo. The government didn't search properly for emails and argued WhatsApp messages weren't covered by the law. The judge said the government must search harder and that WhatsApp messages *are* covered by the law unless it's clearly proven that getting them would be an impossible task. The government didn't prove that, so they have to hand over the relevant messages.
Key Facts
- •George Greenwood, a journalist, made two Freedom of Information Act (FOIA) requests to the Department of Health and Social Care (DHSC) concerning correspondence between Matt Hancock and Gina Coladangelo.
- •The first request concerned emails, and the second request included WhatsApp messages from specific groups.
- •The Information Commissioner (IC) made two decisions, both appealed by Greenwood and the DHSC.
- •The Tribunal found the DHSC's searches for emails in the first request inadequate and ordered further searches.
- •The Tribunal found the IC's second decision flawed for not considering whether information was held on behalf of the DHSC under FOIA section 3(2)(b).
- •The Tribunal found WhatsApp group messages within the scope of the second request, rejecting the DHSC's argument that group messages are not 'correspondence'.
- •The Tribunal rejected the DHSC's argument that the second request was vexatious due to the burden it imposed, finding insufficient evidence to support this claim.
Legal Principles
Freedom of Information Act (FOIA) – Section 1: Right to information
FOIA
FOIA – Section 3(2): Information held by a public authority
FOIA
FOIA – Section 14: Exemption for vexatious requests
FOIA
FOIA – Section 16: Duty to provide advice and assistance
FOIA
FOIA – Section 58: Determination of appeals
FOIA
Interpretation of 'correspondence' in the context of WhatsApp group messages.
Case law and Tribunal interpretation
Determining whether a request is 'vexatious' under FOIA section 14 considers objective standards and a high hurdle for public authorities.
Dransfield v IC and Devon CC [2015] EWCA Civ 454
Outcomes
The DHSC must conduct further searches for emails, including private email accounts of Hancock and Coladangelo, relating to the first request.
The Tribunal found the initial searches inadequate due to material omissions.
The Tribunal substitutes the IC's second decision notice, finding it was not in accordance with the law.
The IC failed to consider whether information was held on behalf of the DHSC under section 3(2)(b) of FOIA.
WhatsApp messages within specified groups are within the scope of the second request.
The Tribunal rejected the DHSC's narrow interpretation of 'correspondence' and considered a real-world analysis of communication in the digital age.
The second request is not vexatious.
The DHSC failed to demonstrate the request imposed an unreasonable burden, despite the large number of messages. The public interest in disclosure was also considered significant.
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