We’ve recently been considering whether we should add individual courts to WhatDoTheyKnow.com, so that users could make FOI requests to them in public. Doing so would certainly align with our wider mission of making it easy to access information from public bodies; but there are also some clear reasons against their inclusion. 

In this post we’ll examine both sides of the issue. But first, some context.

At the moment, FOI requests for information held by courts can be made via the listing on WhatDoTheyKnow for the courts service, HMCTS. Individual courts are generally not considered to be authorities in their own right, so this would mean adding bodies that are not strictly subject to FOI themselves — which is not a new concept for us: we will often list parts of public bodies separately if we think this will help our users.

Transparency is particularly important when it comes to courts, as they exercise the power of the state and their decisions can have huge impacts on individuals, organisations, the environment and society. 

In favour of listing individual courts

Further to our general principle that it is good to give access to governmental bodies serving the public, there are some more nuanced reasons to include courts in our listings:

• Requests often end up there anyway. On receipt of a request better answered by a local or individual court, HMCTS will often forward it to them, or advise the request-maker to contact the court directly themselves. The FOI process may be quicker and more efficient for all parties if requests are just sent directly to the court in question.
• It would serve an educational purpose Listing courts individually would promote the fact that FOI requests can be made for information held by courts.
• Information can be obtained from courts via FOI. Statistics, information on spending, details of room usage etc. could all be requested from courts, and we would expect such requests to be successful. Section 32 of the FOI Act exempts court records, meaning they’ll just refuse an FOI request for these, but you should be able to access other information that they hold.
• Separate requests may not trigger the cost limit Under Section 12 of the Act, authorities can refuse FOI requests if it will take them more than a certain number of working hours to provide the information. Requests made to a series of individual courts may not be aggregated for the purposes of considering the cost limits, and more information may be obtained via a series of requests made to individual courts than would be obtained via a request made to the court service centrally.

Against listing individual courts

There is really just one substantial reason against listing courts, but it is important and we give significant weight to it:

• Courts may release sensitive information When authorities respond to a request made through WhatDoTheyKnow, the information they release is published on the website. But there are rights other than FOI that give access to information from courts, eg section 5.8 of the Criminal Procedure Rules and Part 5 of The Civil Procedure Rules 1998. Court officers may consider that, due to these provisions, they are required to release information which it would be irresponsible, and sometimes illegal, to publish in response to requests made through WhatDoTheyKnow.

In conclusion

Having worked our way through these pros and cons, we conclude that listing individual courts on WhatDoTheyKnow is currently high risk, and probably not the best way to pursue greater transparency from the court system.

As in other areas, rather than improving the way requests for information are handled, proactive publication of material such as information on cases before courts, and their outcomes, would be preferable. Information which it is not appropriate to publish should be separated from other material by the courts service.   

Another approach is to make FOI requests to bodies such as the police, for material they have presented to courts, and such requests may well be successful. 

It is worth noting that there are currently three courts listed on WhatDoTheyKnow:

• Supreme Court of the United Kingdom
• The High Court of the Justiciary, which is the supreme criminal court of Scotland.
• The Judicial Committee of the Privy Council

Due to the nature of the work that these courts undertake, we believe they are lower risk listings than others. In the case of the Supreme Court they do even have their own FOI contact point and publication scheme, so should be used to responding responsibly and appropriately to FOI requests.

If you want to join the discussion of the question examined in this post, you can do so on the public “ticket” for this issue on GitHub, or you can contact the WhatDoTheyKnow team.

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Image: Tingey law firm