First-Tier Tribunal allows Freedom of Information Appeal concerning Crown Prosecution Service, but Rejects Metadata Argument

13 Jan 2025

Information Law

The First-Tier Tribunal (General Regulatory Chamber) has published a decision allowing the appeal of investigative journalist Stefania Maurizi in her long-running Freedom of Information Act (FOIA) litigation stemming from the role of the Crown Prosecution Service (CPS) in the attempted extradition of Julian Assange to Sweden.

The issue in the appeal was whether the CPS held information explaining when, how, and why the emails of a former CPS lawyer, centrally involved in liaising with the Swedish Prosecution Authority (SPA) on the Assange extradition, were deleted. The fact of the deletion came to light in the first of Maurizi’s FOIA appeals, in 2017, when the witness for the CPS was addressing gaps in the more than 330 pages of correspondence released by the CPS under FOIA during the proceedings: “If there ever existed further emails (beyond the ones we have identified) between [the main CPS lawyer in the extradition unit] and the SPA in the periods Ms. Dehon asked about, they were not printed off and filed by [the main CPS lawyer] and the electronic copies were deleted when he retired and are no longer in the possession of the CPS.”

Ms Maurizi queried the deletion and the reasons for it making an FOI request for information explaining when, how, and why the electronic emails were deleted. During a FOIA tribunal hearing in January 2023, a different CPS witness referred to an undisclosed policy of deletion of electronic mail accounts 30 days after individuals left the CPS. The CPS later disclosed the policy but stated it did not hold any other information within the terms of the request.

Inadequate Searches Relevant to Whether Information Likely Held

The Tribunal heard further evidence from the CPS in September 2024, and held that it was more likely than not to hold information relevant to the request. The Tribunal’s decision, dated 2 January 2025 but only recently published, underscores the importance of thorough record-keeping and transparent responses to FOI requests. Despite CPS assertions to the contrary, the Tribunal found deficiencies in the CPS’s information management practices and search efforts.

Interestingly, the Tribunal took into account the inadequacy of the searches carried out by the CPS (over many years), despite the fact that search adequacy was not formally raised as an independent ground of appeal, which challenged the ICO’s acceptance of the CPS’s assertion that it did not hold the information. This highlights the Tribunal’s expectation that public bodies must provide clear and comprehensive assurances about their efforts to identify and disclose relevant information under FOIA. The decision also reflects the Tribunal’s willingness to scrutinise historical records management practices. Notably, the CPS provided contradictory accounts regarding the applicable policies for account deletion, initially suggesting a 90-day retention period before deletion and later revising this to 30 days.

Metadata

Conversely, the Tribunal rejected the ground of appeal related to the Appellant’s request for metadata associated with documents already disclosed. It was clear that the CPS held the metadata of the documents that it had disclosed, because it had  provided some, but not all, of the metadata for the relevant policy document. The Appellant argued that metadata was included within the request, because there was nothing in sections 1(1) or 84 FOIA that requires that a requester specify separately that metadata is requested and an objective reading of the request itself, in light of the background of the case, indicated that the metadata fell within the request: the request was about deletion and was made in the context of the CPS’s explanations of the deletion being contradictory.

The Tribunal rejected these arguments and clarified that requests for metadata must be expressly stated to fall within the scope of an FOI request, rather than inferred. This interpretation reinforces that metadata, as a form of recorded information, is not automatically included in requests for substantive content unless explicitly sought.

Estelle Dehon KC has represented Ms Maurizi throughout her FOIA appeals.