Aaron Moss and Peter Laverack successful in appeal about the meaning of “held” in FOIA 2000

Holt v Information Commissioner and Ministry of Justice [2026] UKUT 87 (AAC)

The Upper Tribunal, in considering whether FOIA entitles an information requester to a copy of an original will stored in a Place of Deposit, held that FOIA does not apply because the documents remain “held” by the High Court notwithstanding where they are stored, and in whose physical custody they are.

Aaron Moss acted for the successful Ministry of Justice, Peter Laverack having been successful for the same party in the Tribunal below.

Although arising on a very specific set of facts, the ruling of Upper Tribunal Judge West is of broad application.

The Upper Tribunal held that the “controller” of information, in the sense of being the person who made decisions as to its storage and access to it, was also the “holder” for the purposes of FOIA. In the case of original wills, the Lord Chancellor has statutory responsibility for determining where original wills are deposited, in his judicial function. Original wills remain subject to the control of the High Court whilst stored.

The Upper Tribunal rejected the requester’s analysis that original wills were only subject to the control of the High Court for the purposes of inspection and not more generally.

As a matter of fact, many original wills are stored in a Place of Deposit under the Public Records Act 1958. The fact that other documents stored at that location are public records deemed held by The National Archive does not mean that original wills come under the control of The National Archive where statute provides that the Lord Chancellor continues to be in control of them. The original wills were not a “transferred public record” for the purpose of s15(4)(b) Freedom of Information Act 2000 or a “public record” under s1(1)(a) Public Records Act 1958.

The Upper Tribunal also considered whether original wills are “records of the court” for the purposes of the Public Records Act 1958, something on which the Courts have not previously settled on a definition. It was held that original wills are not such records, because that phrase “must refer to those documents and records relating to litigation which the court itself keeps for its own purposes”.