Quinn v Information Commissioner

The Appellant asked for an internal review of the decision on 30 th March and such a review was conducted by Russell Yates, Head of the Open Government and Relocation Unit, part of the National Offender Management Service (NOMS). Mr Yates wrote to the Appellant on 7 th April 2005 to notify the Appellant of the outcome of the review. In this letter he reiterated the searches that had been undertaken and stated that "it may well be that copies of the investigation report are no longer held in the Home Office or Prison Service Headquarters". He then went on to rely upon s.12 FOIA noting that the Section 12 FOIA, "appropriate limit" cost of £600 had been exceeded and that he intended to take no further action.

Mr Achow responded by telephone on 16 th August in which he indicated that: "he was not willing to state as a matter of fact that the information was not held, although there was no record of it, in case it one day appeared.".

This was confirmed in writing by Mr Achow on the same date. He stated that the Home Office had been unable to locate a copy of the information, despite extensive searches covering: the Prison Service, the Home Office and the National Archives catalogue. To the best of his knowledge the document no longer existed. He then recited factors in support of this namely:

Ms Webb wrote to Mr Achow on 2 nd September 2005 noting that the age of the report made it not unreasonable to suppose it had been destroyed, and asking for a disposal schedule to demonstrate this. Mr Achow spoke to Ms Webb on 6 th September 2005 confirming that he did not have a disposal schedule for this document and that the current records management policy was different from the records management policy that would have had effect previously. He also sent a copy of the current NOMS (National Offender Management Service) disposal schedule at Chapter 5 of PSO (Prison Service Order) 9020.

Having been unable to gain a clear assurance that the information was not, as a matter of fact, held, Ms Webb contacted Susan Chrisfield the Deputy Data Retention Officer and Freedom of Information Compliance Manager at the Home Office who stated in her letter of 11 th November 2005:

At this point Ms Webb concluded her investigation. In the decision Notice dated 8th February 2006 the Commissioner went on to find that:

The Tribunal were impressed with the persistence that Ms Webb had shown in seeking to reach a resolution and felt that whilst there had been inconsistencies in the expression of the Home Office response (the initial "exhaustive search" not having included the Core Home Office to whom the original request was addressed), she had sought further evidence on a number of occasions until the Home Office were unable to provide any more information beyond surmise.

During the currency of the Information Commissioner's investigation, the Appellant made separate enquiries of The National Archive and Treasury Solicitor (because there were numerous criminal prosecutions resulting from the riot) both of whom confirmed that they did not hold a copy of the Dunbar report.

The Appellant appealed to the Tribunal on 1 st March 2006. His grounds of appeal could be summarised as follows:

In support of his grounds Mr Quinn relied upon :

The Tribunal would like to record their gratitude to the Appellant who although unrepresented, presented his appeal concisely, clearly and after what was obviously a great deal of preparation. His extensive knowledge of Prison Service record keeping procedures was of great assistance.

The Home Office were joined as an additional party and both they and the Information Commissioner opposed the appeal as set out in their replies, their arguments were expanded in skeleton arguments submitted to the hearing and in oral submissions, which can be summarised as follows:

The Appellant suggested in his grounds of Appeal and the accompanying documentation that a search should be made of the Directorate of Prison Medical Services and the Prison Board. The Home Office contacted the present Director of the Prison Medical Services who informed the Home Office that they had no trace of the report. This enquiry was made despite the Prison Medical Services now being the responsibility of the Department of Health. The Minutes of the Prison Board referred to the Report but no copy was included.

Mr Quinn provided a witness statement reiterating his understanding of the circulation of the report at the time. He was not required to add to this evidence at the hearing. Both Ms Webb the Assistant Complaints Resolution Manager at the

The hearing was adjourned to a paper hearing to enable all parties to submit legal arguments upon the question of:

Having received submissions from all the parties, we note the following: Section 58 of the Act provides as follows:

The approach accepted by the Tribunal in Hemsley v The Information Commissioner (EA/2005/0026), was that in deciding whether the Decision Notice was in accordance with the law under section 58(1)(a), the Tribunal was entitled to consider all the evidence by way of rehearing and was not restricted to a form of judicial review.

We are satisfied that this Appeal also relates to a question of mixed fact and law, (the Tribunal here addressing s 58(1)(a) of the Act as to whether the notice against which the appeal is brought is not in accordance with the law). Consequently on a proper, purposive reading of s 58, this Tribunal has full jurisdiction over issues of pure fact and may take into account all evidence before it.

As regards any fact review, the Tribunal can substitute its own findings and if in the light of that decision it finds the Information Commissioner's decision cannot stand, the Appeal should be allowed or a new notice substituted. Equally if the Tribunal finds that the facts relied on by the Information Commissioner cannot be supported by the evidence, the Tribunal may review them.

Ms Webb in her investigation points to the letter of 2 nd March 2005 as the date that the Home Office notified the Appellant that they did not hold the information. Whilst it is clear that the phraseology is not explicit (and indeed the Home Office

None of the parties challenge this finding, neither does anyone take a point upon the timing of the section 1(1)(a) notification. The 2 nd March 2005 was outside the 20 working day time limit set out in Section 10, however, it is clear that Mr Achow's initial response of 27 th January 2005 (which was within time) purported to be such notification. In the Appellant's letter of 8 th February 2005 in which he suggested further avenues for the Home Office to follow, he indicated that he was not concerned with the timing of any response, being "more concerned about access to the Report than the extra few days it may take after all this time." It is clear from the papers before us that the Home Office have sought to act promptly at all stages of the searching process, responding in timely fashion to each of the Appellant's letters. At the date of the hearing all the searches that the Appellant wished to be undertaken had been completed, consequently the Tribunal did not address this point.

The principal question for the Tribunal is whether the Home Office held the information requested at the date of the request. In considering this question, the Tribunal is entitled to take into consideration all the evidence that it has heard in relation to the status of the copies of the reports (as set out above). Mr Yates, in the open and well briefed answers he gave in oral evidence, was most helpful to the Tribunal in confirming that the Home Office had searched thoroughly and sensibly.

The central question of whether the Home Office held the information at the date of the request can be sub-divided as follows:

The burden of establishing that the report was not held at the time of the Information Commissioner's investigation rested with the Home Office. The Appellant bears the burden under rule 26 of the Information Tribunal (Enforcement Appeals) Rules 2005 of satisfying the Tribunal that the disputed decision should not be upheld. In discharging this burden, the Appellant is of course entitled to pray in aid the evidence submitted by the Home Office.

It is clear that the Home Office held at least 6 copies of the report in 1989 and they have been unable to provide any evidence of what has happened to any one of them. Their searches of the files failed to find any original submission to Ministers or senior officials in the Home Office or the Prison Service dealing with the handling, presentation or follow-up to the Dunbar Report to which a copy of the Report was attached. Such references as were found to the report on file were checked to confirm that they did not add anything of substance beyond the contents of the summary placed in the Library of the House of Commons. These references also provided no lead on what might have happened to each copy of the report referred to.

The Home Office was unable to provide any evidence of the destruction of any of the copies of the report, despite having a system to record file destruction. When a file was destroyed the card at the central registry would be marked as destroyed and retained. This record would mean the whole file contents were destroyed, and did not itemise any documents contained within or attached to the file. Files are reviewed before destruction, and in light of the Home Office and National Archive now accepting that the Dunbar Report is among the class of document that should have been preserved for posterity, if any of the file copies of these reports were destroyed and no record kept this would point to a disregard for the procedures in place at the time.

Distribution was very limited. Mr Yates explained that the original submission of the report to the Home Secretary was copied primarily to senior officials within the Prison Service. Within the mainstream Home Office, only the Ministers' Private Secretaries received copies of the submission. Mr Yates gave evidence that senior officials may have destroyed their own working papers without recording that fact, on the working assumption that the top copy of the papers would be kept on a registered file. However, there is no direct evidence of this. In any event in order for the Home Office to meet the requirements of the Public Records Acts, there should have been a central registered file kept initially for working reference and ultimately for the National Archives. We find it very surprising that, in a central government department reliant on records and subject to the provisions of the Public Records Act, on at least six occasions a sensitive and important document would have been unilaterally destroyed without those responsible first having it confirmed that a copy was safely held on a central registered file.

The Dunbar Report was clearly a sensitive document with a restricted circulation which was considered very important within the Prison Service . The Home Office had been unable to find a written instruction relating to document retention before 1995, but the general policy was to review documents every 10 years. Mr Yates' evidence was that the Home Office has now discussed the report with the National Archive, and on the basis of the summary both organisations confirmed that it is likely that the report should have been selected for permanent preservation. The Tribunal are satisfied that had it been considered under the Public Records Acts (as the Home Office is bound to) and as was the practice at the time, it would have been retained for the National Archive.

During the hearing it was confirmed that the report had not been destroyed during a recent Core Home Office move as those papers were weeded before destruction and the report was not found.

The Information Commissioner found that the age of the document made it more probable that it would have been destroyed, but that was not to give sufficient weight to the practices in place at the time, the sensitivity and importance of the document to the issue of handling people on remand and its historical importance.

The only evidence beyond surmise that the Home Office rely upon to support their assertion that the document is not held, is their failure to locate it. Conversely despite having held at least 6 copies of the report at one time, they do not rely upon their failure to locate evidence of its destruction as evidence that it hasn't been destroyed and is still held somewhere.

The Tribunal is not satisfied on a balance of probabilities that each copy of the report that was held by the Home Office has been destroyed.

Whilst this issue was raised in argument during the hearing, again beyond the failure to locate any of the copies of the document, there is no evidence before the Tribunal that the Home Office copies of the report have been moved from their premises without record to premises that are beyond the control of the Home Office. The Tribunal reminds itself that the relocation of files within the registries and departments of the Home Office, even their warehousing in storage facilities, are not what is meant here, and whilst there is clearly confusion as to what has happened to some files (such as all the policy files of the NW and SW regional Offices prior to their reorganisation which cannot be located in their entirety) there is no evidence beyond speculation that they have been moved from Home Office premises.

The Tribunal finds that this is the most probable course of events. In doing so we give particular weight to the nature of the filing system used at the Home Office Registries. The Tribunal heard that there are in excess of 250,000 files at the central registry at Branston, they are recorded on a manual card index, hence the possibility of human error is considerable. The compilation of the files is not systematic, the contents appearing to vary depending upon the individual who compiled a particular file. There is no consistent policy of attaching documents to a file, and no method of recording on the card index that which is contained in each file. A search of the system boils down to the educated pursuit of trails suggested by the professional experience of the staff working in the Central Registry, in this case complemented by suggestions made by Mr Quinn, based on his long experience of the records systems of the Prison Service. The exhaustive search referred to by Mr Achow in correspondence, was in fact an exhaustive search of the places identified through this process.

The limitations of the system are such that:

The system for keeping regional records (which were not stored in the Central Registry) is even less satisfactory. The system exhibits similar weaknesses to those found in the Central Registry arising out of the filing system being manual, using file names which do not describe which documents are included in or attached to any particular file. Further its operation appears to be less systematic, with records of destruction not being created habitually. It should be noted that these files should still have been subject to the review procedures that were in force at the time.

Section 1 of FOIA provides as follows:

The FOIA does not define what is meant by "held", however, we are satisfied that guidance can be found in s.1(2) which provides as follows:

Section 12 provides: …

Thus a public authority is relieved of the duty to notify an applicant whether they hold a piece of information if the estimated (or in this case actual) time spent searching for the information would exceed the appropriate limit.

The Information Commissioner argued in front of us that "held" has a restricted meaning which denotes "possession and control". The Tribunal finds no basis for restricting the meaning of "held" in this way. The fact that the rules drafted pursuant to s.12 have the effect of defining what is a reasonable search and the amount of time and money that a public authority are expected to expend in order to fulfil their obligations under the Act, serves as a guillotine which prevents the burden on the public authority from becoming too onerous under the Act.

There is nothing in the provisions which prevents a public authority (as here) searching beyond the £600 limit, however, if the document cannot be located notwithstanding their best efforts, the s.12 provisions remove from them the obligation of searching any further.

In light of the provisions of s.12 we are therefore satisfied that s.12 does obviate the need for a restrictive definition of "held", and can be construed in laymen's terms as "have they got it?" implicit in that being that a document is still held even if a public authority cannot find it and do not know where it is likely to be found.

When conducting her investigation, Miss Webb had construed this provision to mean that an estimate could only be carried out before a search was conducted, and once the search had commenced it must be completed and s.12 could no longer be relied upon. The Information Commissioner accepts that this is not a proper construction of s.12 and that there is no time bar specified within the statute that prevents an estimate being provided after significant time has already been spent searching. Indeed it may be that in many cases some searching will be required to provide the foundation of a subsequent estimate.

The Tribunal is satisfied that despite purporting to comply with s1.1 of FOIA in the letter of 2 nd March 2005, the Home Office has not complied, since they have been unable to locate the Dunbar report or to satisfy the Tribunal that they do not hold it. The Tribunal is satisfied that if the appropriate cost limit has been reached, the Home Office would be entitled to rely upon it.

The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 S1 2004/3244 made under section 12.5 provides as follows:

The Department of Constitutional Affairs Guidance on the application of the Freedom of Information and Data Protection (appropriate limit and fees) regulations 2004 states at paragraph 2.3.4:

In applying these regulations and guidance to this case, it was not in dispute that to rely upon s.12 the Home Office would have had to spend at least 24 hours to fulfil their obligations. In evidence Mr Yates went through a schedule of the hours

The Tribunal accepts that the core Home Office and the Prison Service have undertaken a substantial search and have followed up every avenue suggested by the Appellant for this document and have been unable to find it; indeed the evidence of Mr Yates conveyed some of the frustration that he and his Officers experienced in being unable to locate any of what were known to be at least 6 copies of this sensitive and important report.

The oral hearing having been adjourned to a paper hearing for the provisions of further legal arguments (see paragraph 22 referred to above), further witness statements were submitted after the hearing. These related to an exchange between Mr Yates and the Appellant, whilst papers were being cleared from the Tribunal room. They can be summarised as the Appellant suggesting that:

Mr Yates explains this was a jocular remark intended to release the tension and both parties agree that in the same conversation Mr Yates reiterated that his staff had searched diligently for the report.

Both the Home Office and the Appellant ask us to take these statements into consideration and we are satisfied that the hearing being adjourned and not concluded we are able to admit them. However, having considered this evidence, we are satisfied that notwithstanding Mr Yates' unfortunate phraseology, these statements do not alter the evidence that we have already heard. It is not in dispute that the Home Office accept that the report (or its copies) may still exist and may still be on their premises, but that if this is the case, they have been unable to locate it, despite a thorough and reasonable search in which they have expended more money and man hours than statute requires. We are satisfied that the conversation referred to merely reflects that state of affairs.

In light of our observations above (that these proceedings have concerned the search for information rather than the physical document itself, a fact that Mr Yates satisfied us during his evidence that he had had in mind throughout his searching) we observe that we would expect Mr Yates' undertaking to notify the Appellant would apply if any information from the report that has not previously been made public is found.

In the Appellant's grounds of appeal there was implicit a request that the Home Office search further. From the evidence we have heard, we are satisfied that the Home Office have now undertaken extra searches at the request of the Appellant, and that in light of the applicability of s.12 there is no legal requirement for them to search further.