Judicial College Not a Public Authority Under FOIA: Forstater v Information Commissioner Case

Citation: [2023] UKUT 303 (AAC)
Judgment on

Introduction

In the case of Forstater v Information Commissioner and Others [2023] UKUT 303 (AAC), the Upper Tribunal (UT) deliberated on the issue of whether the Judicial College was a “public authority” under the Freedom of Information Act 2000 (FOIA) at the time of a request made by Ms Maya Forstater. The appeal centered on the legal interpretation of the FOIA’s Schedule 1 listing and the proper construction of the term “Judicial Studies Board” within it, with wider implications on the applicability of FOIA to bodies not expressly listed.

Key Facts

Ms Forstater sought information from the entity formerly known as Her Majesty’s Courts and Tribunals Service (HMCTS) regarding training provided by ‘Gendered Intelligence’ to certain judiciary members. The request was denied on the basis that the information was held by the Judiciary, which is not deemed a public authority under FOIA.

The crux of the appeal concerned whether the Judicial College, which was not explicitly listed in FOIA’s Schedule 1, could be treated as a continuation or renaming of the Judicial Studies Board, which was listed. Ms Forstater argued that the two were the same entity and should, therefore, be subject to FOIA’s transparency obligations.

The Upper Tribunal’s analysis involved several legal principles:

  • Literal Interpretation of Statutes: The UT adhered to the principle that clear and unambiguous statutory terms should be given their ordinary meaning, as demonstrated in their reference to section 3 of FOIA.
  • Statutory Construction: The UT looked at the intent of the legislature and the use of the listing system within Schedule 1 to minimize disputes over which entities are public authorities subject to FOIA, following Lords Hope’s rationale in Sugar v BBC [2009] UKHL 9; [2009] 1 WLR 430.
  • Identifying Public Authorities: FOIA prescribes a detailed process for adding or removing entities from Schedule 1, indicating legislative intent on which bodies should be considered public authorities. The case illustrated that omission due to the lack of an Order under section 4(1) or section 4(5) of FOIA, or a designation under section 5, prevents a body from being considered a public authority.
  • Burden of Proof: The UT established that the appellant must present sufficient argument for the Tribunal to consider that the Information Commissioner’s decision is not in accordance with the law under section 58 of FOIA.

Outcomes

The Upper Tribunal dismissed the appeal, upholding the decision of the First-tier Tribunal (FTT) that no error in law was involved. It confirmed that the Judicial College could not be considered a “public authority” under FOIA as it was never listed in Schedule 1 and no orders had been made under section 4(1) or section 5 to deem it as such. The UT further noted that the Constitutional Reform Act 2005 distinguished the new functions and responsibilities of the Judicial College, suggesting a clear break from the Judicial Studies Board.

Conclusion

The UT’s decision reflects a stringent adherence to the literal interpretation of the FOIA’s provisions and legislative listings. The outcome affirms the importance of explicit legislative listings under Schedule 1 of FOIA in identifying public authorities, and sets a precedent that changes in naming or functions that are not reflected through statutory mechanisms do not warrant a reinterpretation of such listings. The decision also clarifies that entities solely performing judicial functions or those expressly non-listed cannot be compelled to adhere to FOIA’s requirements. This case provides valuable guidance on the interpretation of ‘public authority’ and sets boundaries for FOIA’s scope of application, reinforcing the legislative aim for clarity and precision in identifying bodies subject to its obligations.