Upper tribunal judge summarily dismisses JAC’s defence, forbids submissions on FOI exemptions
The Judicial Appointments Commission (JAC) has been barred from making submissions in a solicitor judge’s ongoing Freedom of Information (FOI) battle over recruitment competition details for judicial appointments.
His Honour Judge Abbas Mithani has challenged the JAC’s refusal to disclose certain recruitment materials, arguing that the refusal breached the Freedom of Information Act. The JAC claimed the information involved personal data and that its release would likely prejudice the effective conduct of public affairs, citing exemptions under section 36 of the Act.
The dispute has been drawn out for some time. At an appeal hearing in September 2023, the JAC apologised after realising that some of the information it had refused to disclose was already publicly available online. Earlier this year, a judge ordered that Mithani’s appeal be reheard by a new panel.
During a case management hearing this May, Upper Tribunal Judge Neville, sitting as a First-Tier Tribunal judge, decisively addressed whether the information Mithani sought was exempt under section 36.
The judge firmly rejected the JAC’s position that its original refusal decision should stand without further scrutiny. He stated that permitting a public authority to introduce new facts after issuing a decision would turn the FOI appeal process into a “rolling review.” This, he warned, would undermine the legal framework and render the crucial initial assessment of compliance meaningless.
Embed from Getty ImagesJudge Neville further noted that the JAC’s arguments tried to “divorce the decision notice from the question of whether the public authority complied with Part I of FOIA.” He emphasised that such a stance would allow authorities to bypass the statute’s clear requirements.
In light of these considerations, the judge barred the JAC—and also the Information Commissioner, which had issued guidance on section 36—from making any submissions on the matter. The tribunal determined that the grounds for excluding their input were “overwhelming” and that a fuller examination of the issues would not produce a different outcome or yield wider public benefits.
This ruling represents a significant setback for the JAC, which has sought to withhold recruitment information, citing confidentiality and public interest grounds. It highlights the tribunal’s firm commitment to upholding transparency and the integrity of the FOI process.
Judge Mithani’s challenge reflects broader concerns over public access to information on judicial appointments and the processes ensuring fairness and openness in recruiting judges.
The case continues to underline tensions between public bodies’ claims of confidentiality and individuals’ rights to information under FOI legislation. The tribunal firmly dismissed the JAC’s defensive tactics, setting a precedent restricting attempts by public authorities to evade accountability by introducing new justifications after initial FOI refusals.
