Chapters: 01 | 02 | 03 | 04 | 05
3.1 This exemption applies to information which is held by a public authority only by virtue of being contained in a document which falls within one of the listed categories. If the exemption applies, a public authority should refuse the request; disclosure will be a matter for the court body in question. If the public authority also holds the information for another reason, in other words it has also obtained or been provided with the information by virtue of another source or another means, the exemption will not apply. The question to be asked is: does the public authority only hold the information because it was contained in a document to which section 32 applies? That is a question about the historical origin of the information, not about the purpose for which it is held. If the public authority holds the information only because it obtained it from a relevant document, it will fall within this exemption regardless of the purpose or purposes for which it was obtained or held, and regardless of the form into which the authority may itself later convert it (for example by copying or quoting from the document in question). But, for example, if the authority previously held the information before it became contained in a court document, or it subsequently acquires it from some quite unrelated source, then this exemption will not apply to that information.
3.2 The fact that a public authority is engaged in litigation or is involved in an inquest does not bring all the information which it holds in relation to those proceedings within the scope of this exemption. For example, a public authority enters into a contract with a supplier for goods. The contract is later the subject of a dispute which is to be resolved in court. The case goes to court and the contract becomes part of the court file. The public authority which entered into the contract cannot claim this exemption to justify not disclosing the contract. The public authority does not hold the information contained in the contract only by virtue of it being contained in a document filed with a court. It holds it because it is a party to the contract.
3.3 This exemption is in two parts. Part (1) deals with documents served in the course of proceedings and court records, and Part (2) deals with inquiry and arbitration documents. Documents, for these purposes, may include books, maps, plans, drawings, photographs, graphs, discs, tapes, and films.
3.4 Part (1) relates to documents filed with the court or served upon a public authority or created by a court, for the purposes of proceedings in a particular cause or matter. A court is defined by the exemption as including "any tribunal or body exercising the judicial power of the State". As well as the system of civil and criminal courts (magistrates' courts, county courts, the Crown Court, the High Court and the Court of Appeal) it includes the Judicial Committees of the House of Lords and the Privy Council and the judicial functions of coroners.
3.5 The inclusion of tribunals brings in a great many bodies, most of them statutory, which have specific, limited jurisdiction that is usually based on the subject matter of the issue in question. Their procedures, hearings and approach to overseeing the preparation of cases can be simpler and more informal than the courts, with parties often conducting their own cases, without representation. The great majority of tribunals are concerned with the resolution of disputes between the citizen (whether an individual or a corporation) and the state, from disputes about the late submission of tax returns to reviewing detention under the provisions of the mental health legislation. Some, however, deal with disputes between individual parties, such as employment disputes or those which concern the mutual obligations of landlords and leaseholders. Like court rules, tribunal rules may provide for the disclosure of information and documents.
3.6 Part (1) also refers to the administrative staff of a court or tribunal. This term includes court clerks, ushers, listing officers, jury bailiffs and back-office staff such as those who prepare case files and court orders.
3.7 Part (1) refers to documents being filed, served or created for the purposes of proceedings in a particular cause or matter. The term "proceedings in a particular cause or matter" predominantly includes "litigation", where a person seeks to invoke the jurisdiction of the court in relation to an action or dispute, or where a person asks the court to make a particular decision. For example, an action in the High Court for breach of contract or defamation; an application for an injunction in a county court in matrimonial proceedings; an application in the High Court for judicial review of an administrative decision; and a claim for unfair dismissal brought in an Employment Tribunal and criminal proceedings in the Crown Court. The term includes not only the main action or matter itself but also any proceedings which are incidental to it, for example the enforcement of a court order, interim applications and costs. Litigation will usually involve two or more opposing parties but some matters will involve only one person who is applying to a court or tribunal to ask it to make a particular decision, for example in adoption cases. The term also expressly includes any inquest or post-mortem examination.
3.8 Part (1) covers information held by a public authority only by virtue of its being contained in:
3.9 The first two categories are principally concerned with documents created by the parties to litigation, the third with documents created by or on behalf of the court or tribunal itself in connection with proceedings in a particular cause or matter.
3.10 The first category might include information contained in:
3.11 The second category might cover information contained in:
3.12 The third category might include information contained in:
3.13 The exemption will not cease to apply to information because it is not subsequently used in the proceedings. For example, a party may file evidence at court which is later be found to be inadmissible: it will not be used in the proceedings. Courts often return inadmissible to the parties but this is not always the case. If information falls within this Part of section 32, it will not cease to be exempt if it is subsequently not used in the proceedings.
3.14 The exemption will continue to apply after the proceedings are concluded or discontinued in the same way as it did during the currency of those proceedings.
3.15 As explained above, Part 1 also concerns the judicial functions of coroners. The term "proceedings in a particular cause or matter" expressly includes any inquest or post-mortem examination and may also include a special examination or other examination conducted under the Coroners Act 1988: information relating to such matters may be exempt. For example, information which is only held because it was supplied to a coroner by a person involved in an inquest, by way of evidence (in the form of a witness statement or documentary evidence) will be exempt in the hands of any public authority who holds it only for that reason. Reports and documents which are given to a coroner in relation to sudden deaths that do not proceed to an inquest or a post-mortem examination but which lead to a notification to the Registrar that the Coroner is not proceeding further will also be exempt if they are held only for that purpose.
3.16 Part 2 relates to documents given to, or created by, a person conducting an inquiry or arbitration. An inquiry will only be subject to the FOI Act itself if it is part of the sponsoring department (that is, if it is not legally independent of that department) or if it is included in Schedule 1 to the FOI Act. If there is any doubt over whether an inquiry is itself a public authority for the purposes of the FOI Act, advice should be sought.
3.17 In relation to inquiries, a public authority could find itself holding information which falls within these categories either because it conducted an inquiry itself or because it was the sponsoring department for an inquiry. However, the exemption places an extremely important limitation on the inquiries in relation to which it applies: it applies only to the documents of inquiries or hearings which are held under any provision contained in, or made under, an enactment, that is, an Act of Parliament. This might include, for example:
3.18 Specific examples of inquiries set up under an enactment include:
3.19 This exemption will not apply to the documents of inquiries which do not owe their existence to statute, including those set up under the royal prerogative, even if a judge heads the inquiry. Examples of inquiries where the court records exemption could not be claimed would include
But in each of these cases other exemptions may apply (see below).
3.20 Arbitration is defined in the exemption by reference to Part I of the Arbitration Act 1996: the exemption can be claimed in respect of arbitration to which Part I of the Arbitration Act 1996 applies (NB. sections 85-87 and 92-98 of Part II of the Arbitration Act also apply Part l and are therefore covered by the exemption). Part I of the Arbitration Act applies only where there is a written arbitration agreement. Arbitration involves an impartial, independent third party hearing both sides (usually in private) and issuing a final and legally binding decision to resolve the dispute. It is now used widely for international disputes, disputes between major corporations and employment and consumer disputes.
3.21 The second part of the exemption applies to information held by a public authority only by virtue of its being contained in:
3.22 The first category will primarily include evidence which is filed by parties to the inquiry or arbitration.
3.23 The second category might include information contained in:
3.24 A public authority may also hold information within the second category because it was the recipient of a document created by a person conducting an inquiry. However, unless the document was created by the person conducting the inquiry, information which is held by a public authority solely because it is a party to that inquiry will not be exempt under section 32.