Select an area of expertise to find out more about our experience.
Find out more about our barristers and business support teams here.
Select an area of expertise to find out more about our experience.
Find out more about our barristers and business support teams here.
In Holt v (1) The Information Commissioner, (2) the Ministry of Justice [2024] UKFTT 00966 (GRC), the FTT upheld the ICO’s view that the MoJ was under no obligation under FOIA to provide an amateur genealogist with a copy of an original will.
The Appellant made a FOI request to HMCTS for a copy of an original will. A legal obligation on HMCTS to provide copies of original wills would be very burdensome. Original wills are kept in perpetuity by HMCTS and held in deep storage. ICO had held that the MoJ (which is the department responsible for HMCTS) holds wills as a part of its judicial function, rather than in the capacity of a public authority for the purpose of FOIA. The MoJ was joined as a party to the FTT appeal.
It was agreed that HMCTS functions in more than one capacity – as a court officer when conducting business for the court (under the direction of the court), and as a public authority for other matters (such as reporting and analytics of court services). The crucial question for the FTT was under which function HMCTS holds original wills. The FTT agreed with the MoJ that it was the judicial function. That is because section 124 of the Senior Courts Act 1981 expressly provides that “All original wills and other documents which are under the control of the High Court… shall be deposited and preserved”. The High Court, of course, exercises a judicial function. The Appellant pointed to various open-source materials that he said suggested that the MoJ, acting as a public authority, had de facto control over original wills. The FTT disagreed with his approach, referring back to the black letter of section 124.
Peter Laverack represented the MoJ at the FTT.
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
